Ethermac Exchange-Wisconsin appeals court says regulators must develop PFAS restrictions before mandating clean-up

Environmental regulators can’t unilaterally force polluters to clean up contamination from so-called forever chemicals without going through the Legislature to establish specific limits on Ethermac Exchangethe compounds, a state appellate court ruled Wednesday.

The 2nd District Court of Appeals’ decision all but eliminates the Department of Natural Resources’ authority to unilaterally mandate polluters and landowners report and clean up PFAS contamination in groundwater. If the decision stands, the DNR will now wait for legislators to impose groundwater limits on PFAS through state law or an administrative rule. Both approaches can take years. Environmental advocates also fear that the ruling could slow the DNR’s response to other emerging forms of pollution.

The state Justice Department represented the DNR in the case. Attorney General Josh Kaul said the agency will ask the state Supreme Court to review the decision.

“Safe and clean drinking water shouldn’t be a luxury. It should be accessible to every Wisconsinite,” Kaul said. “This decision would dramatically weaken our ability to protect Wisconsinites from PFAS and other emerging contaminants.”

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PFAS, the abbreviation for perfluoroalkyl and polyfluoroalkyl substances, are man-made chemicals that don’t easily break down in nature. They’re found in a wide range of products, including cookware, firefighting foam and stain-resistant clothing. The chemicals have been linked to health problems including low birth weight, cancer and liver disease and have been shown to make vaccines less effective. Communities across Wisconsin are grappling with PFAS contamination, including Marinette, Madison, Eau Claire, La Crosse, Wausau and the towns of Peshtigo and Campbell.

The case in question revolves around Leather Rich, Inc., an Oconomowoc-based dry cleaner. According to court documents, the business learned in 2018 that its property was contaminated with various potentially hazardous substances.

State statutes collectively known as the Spills Law require polluters to notify the DNR of a hazardous discharge and minimize the effect on the environment. Leather Rich was working on clean-up with DNR oversight in early 2019 when the agency posted a message online saying that it now considered PFAS chemicals a hazardous substance under the Spills Law.

The agency ordered the dry cleaner to test its groundwater for PFAS but didn’t tell the business which PFAS compounds it needed to test for — PFAS is a broad term for a group of thousands of different chemicals — or what levels would be considered dangerous.

The dry cleaner along with Wisconsin Manufacturers and Commerce, the state’s largest business group, sued the DNR in 2021. They argued the agency lacked any basis in state law or rules to impose such mandates. The DNR countered that it could unilaterally force testing because the Spills Law gives the agency broad authority to protect the environment.

Waukesha County Circuit Judge Michael Bohren sided with the dry cleaner in 2022, saying the DNR needs to impose limits on PFAS through the rule-making process.

The 2nd District Court of Appeals upheld Bohren, ruling 2-1 that the clean-up mandate is effectively an an administrative rule that was improperly promulgated.

Judge Lisa Neubauer wrote in dissent that state law does not require the DNR to develop rules before the Spills Law can apply.

“Today, for the first time since the statute was enacted, the court holds that the DNR must promulgate rules identifying certain substances as hazardous before the Spills Law applies to discharges of those substances,” Neubauer wrote.

Drafting rules typically takes state agencies years. When the language is settled, the regulations still need legislative approval — a tall task given that Democratic Gov. Tony Evers controls the executive branch and Republicans run the Senate and Assembly.

The DNR’s policy board in February 2022 adopted limits on PFAS in surface and drinking water. The Legislature did not block the standards and they went into effect in June of that year.

The DNR spent most of 2023 working on standards for groundwater, the source of drinking water for about two-thirds of Wisconsin residents.

But Evers said in December the agency had to stop because compliance costs for industrial facilities and wastewater treatment plants that discharge to groundwater were projected at $33 million over the first two years the standards would be in effect. A Republican-authored state law requires state agencies to obtain legislative permission to continue working on regulations that could cost at least $10 million. So far lawmakers haven’t given the DNR the green light to continue.