This post originally appeared at https://www.wmc.org/press-releases/appeals-court-sides-with-wmc-says-dnr-overstepped-legal-authority/

Decision Protects Public’s Right to Notice of Hazardous Substance Regulation

MADISON – Wisconsin Manufacturers and Commerce (WMC) won its lawsuit against the state’s Department of Natural Resources (DNR) on Wednesday in the District II Court of Appeals. The 2-1 decision confirms the DNR is violating the law by regulating so-called “emerging contaminants” as hazardous substances under Wisconsin’s Spills Law without written rules in place.

In February of 2021, WMC filed a lawsuit against the DNR over its application of “hazardous substance” regulation. Leather Rich, a small family-owned dry-cleaning business, joined WMC on the suit. When Joanne Kantor took steps to sell her and her late husband’s Oconomowoc-based business, she faced roadblock after roadblock from the DNR, which determined that underground substances on her property were hazardous substances but refused to clarify what remediation was necessary. Now in her mid-80s, Joanne’s attempts to investigate and remediate the issue have lasted several years and been extremely expensive, costing her small business hundreds of thousands of dollars with no end in sight.

In April 2022, the Waukesha County Circuit Court ruled in favor of WMC and Leather Rich. The court concluded that the DNR’s policy of treating PFAS as hazardous substances was illegal because the DNR had not gone through the formal rulemaking process, as required by Wisconsin law. The DNR appealed the circuit court’s decision, claiming it can regulate PFAS as hazardous substances under the Spills Law without adopting rules to notify the public which types of PFAS are hazardous and in what concentrations and contexts.

“Today’s decision by the Court of Appeals protects the public’s right to know what the law requires,” said WMC Litigation Center Executive Director Scott Rosenow, one of the lawyers representing WMC in this case. “If the DNR expects every Wisconsinite to comply with the Spills Law, the DNR needs to explain in an official rule which PFAS it thinks are hazardous.”

According to the DNR’s website, the term “PFAS” includes over 9,000 compounds and thousands of mixtures. The DNR also has stated on its website that common products can be hazardous substances, including beer, pickle juice and milk.

The Spills Law requires any person to notify the DNR of any discharge of a hazardous substance and requires any “responsible party” to pay to clean it up. The Spills Law applies to substances that are listed as hazardous under the federal CERCLA law, known as Superfund. However, because CERCLA does not list PFAS as hazardous, the DNR is attempting to regulate unspecified PFAS under the Spills Law without the public knowing which of the 9,000+ types of PFAS are considered hazardous.

“My daughter, Cheryl Chew, and I are grateful to have this validation,” said Joanne Kantor. “As a small business owner, I think it is fair for the government to tell me what they’re expecting me to comply with and provide clear requirements. I hope this ends my family’s years-long battle with the DNR and allows me to finally wind down my business, and also hope that this decision protects other families from having to go through anything similar.”

Judge Grogan, joined by Judge Lazar, wrote the majority opinion, while Judge Neubauer dissented.

“We’re pleased with the outcome of this case and will continue our fight to protect the public from government overreach,” Rosenow concluded.

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