Wisconsin judge extends order allowing regulation of ‘forever chemicals’

WAUKESHA, Wis. (CN) — A stay of a Wisconsin’s judge’s decision barring the state natural resources agency from requiring businesses to clean up PFAS contamination will extend through an appeal of that ruling, the judge decided on Tuesday.

Although the Wisconsin Department of Natural Resources for now can keep regulating PFAS contamination under its latest unpromulgated policies, the matter is likely to end up in the Wisconsin Supreme Court for the ultimate determination on the DNR’s ability to regulate contamination by the toxic chemicals.

PFAS—also known as “forever chemicals” for their resistance to dissolution—are chemical compounds that can be found in nonstick cookware, fast food wrappers, household cleaning products and other items.

The compounds can seep into the water table in a number of ways, including via accidental spills, and are linked to increased cholesterol levels, low birth weights and some cancers, among other health risks identified in epidemiological studies.

The underlying lawsuit relevant to Tuesday’s motion hearing came in Waukesha County Circuit Court in February 2021 from the state’s largest business group, Wisconsin Manufacturers and Commerce (WMC), alongside Leather Rich, Inc., a dry-cleaning business in Oconomowoc. Defendants include the Wisconsin Department of Natural Resources, DNR Secretary Preston Cole and the Natural Resources Board, DNR’s seven-member policy-making arm.

The complaint claims that after Leather Rich in 2019 signed up for a program where businesses can get help remediating pollution they voluntarily report, DNR “unilaterally and unlawfully changed the rules” by attempting to make Leather Rich and other businesses in the program also test for “emerging contaminants” like PFAS without adequate explanation, public input or legislative oversight.

DNR broke the law, the complaint says, by greatly expanding, without transparency, what hazardous substances businesses need to worry about beyond its authority granted by the Wisconsin Legislature, under whose guidance the changes to the program need to undergo formal statutory rulemaking procedures.

Waukesha County Circuit Court Judge Michael Bohren agreed with WMC and Leather Rich in April, accusing DNR of acting “on a whim and fancy” in establishing unvetted rules for monitoring and cleaning up PFAS without legislative approval.

WMC applauded the ruling as a necessary check on a government agency that ignored the law in establishing pollution guidelines that hamstring businesses. Environmentalists and DNR’s lawyers said the ruling hampers the agency from moving swiftly to address toxic contamination that could harm Wisconsinites and DNR has broad authority to mitigate contaminants in any case.

But on Tuesday, Bohren extended a temporary stay put in place at the time of his April ruling, finding that all the relevant factors weighed in favor of allowing the appeal to play out against DNR’s current regulatory regime.

Of particular concern for Bohren was a Wisconsin Supreme Court decision from January in a case regarding redistricting attorneys for the Wisconsin Legislature, a decision in which Justice Brian Hagedorn wrote a concurring opinion laying out multiple factors for properly considering stays pending appeal.

Those factors, which include weighing competing harms, the public interest and whether an appellate court may come to different conclusion than a lower court, made a stay appropriate, Bohren said, in part to ensure “justice is done and justice is fully ventilated” and because it “protects the overall policy the DNR is working on should the court be wrong” in its original decision.

Lawyers for both DNR and WMC argued their clients face harm should a stay be lifted or extended, respectively.

Wisconsin Assistant Attorney General Gabe Johnson-Karp said economic slowdowns, lost tax revenue and regulatory uncertainty all could create harm if DNR’s policy is blocked, not to mention the 1,300 families in Wisconsin currently being provided potable water by the DNR under the state’s spill law that would likely lose that replacement water if PFAS are removed from DNR’s list of hazardous substances by Bohren’s April decision without a stay.

Lucas Vebber, an attorney with WMC, said DNR created this problem in the first place by forging ahead with regulations that had not been approved by lawmakers and vetted by the public, that formal rulemaking is still a viable option to enshrine DNR’s regulations, and nothing in the court’s original order stops DNR from providing potable water to residents who need it, although Johnson-Karp disagreed with the assertion that the agency has other viable avenues to do that.

The rulemaking procedures referred to in the lawsuit require public hearings, bureaucratic wrangling and legislative committee work, which can often take months or years to complete, as could affixing DNR’s PFAS regulations into statutes.

Delanie Breuer, an attorney with Reinhart Boerner representing Leather Rich, said the company is stymied from remediating contamination on its property by the delays and uncertainty caused by a stay, and the as-of-now $400,000 cost of that remediation effort will only increase with an extended stay.

“There is no clearer example of irreparable harm than that,” Breuer said.

For years, PFAS contamination has been on the radar of environmentalists and their supporters, including Wisconsin Governor Tony Evers, a Democrat, who has tried to address the problem since he was elected in 2019. On this front he has reliably run afoul of the Legislature, which is controlled by Republicans skeptical of putting more onus on businesses to fight pollution, and of creating more regulations to fight pollution generally.

Some municipalities, like the city of La Crosse, have taken PFAS manufacturers to court over the manufacturers’ role in the pollution problem. That lawsuit has since been transferred to join multi-district litigation in federal court in South Carolina, along with a more recent one from Dane County over PFAS pollution from firefighting foam at its regional airport.

A DNR database lists around 90 sites in the state with reported PFAS contamination, including areas currently trying to fight PFAS-polluted groundwater around Madison, Wausau, Marinette, Peshtigo and the town of Campbell outside of La Crosse, where officials have had to spend thousands on bottled water for residents to safely consume.

The DNR Natural Resources Board—a body frustrated as of late by politically tinged infighting on everything from PFAS to wolf hunting to the legal status of its appointed members—set PFAS standards for drinking and surface water in February but stopped short of setting standards for groundwater, and the standards it set have not been taken up by the Legislature.

Follow @cnsjkelly

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit