Appeals Court affirms decision saying PFAS can’t be regulated under Wisconsin spills law

by Henry Redman, Wisconsin Examiner
March 6, 2024

In a 2-1 decision a state appeals court on Wednesday affirmed a previous Waukesha County court decision which found that PFAS can’t be regulated under Wisconsin’s spills law. 

The majority decision, from two conservative judges, found that the Wisconsin  Department of Natural Resources (DNR) regulation of PFAS contamination under the spills law — a decades-old law that provides the DNR with the authority to enforce the cleanup of environmental contamination — amounted to “unlawfully adopted rules.” 

The initial lawsuit was filed, with the backing of Wisconsin Manufacturers and Commerce, the state’s largest business lobby, by the owners of a Waukesha County dry cleaning business who were required by the DNR to test for PFAS contamination on their property. 

In their decision, Judges Shelley Grogan and Maria Lazar found that if the DNR wanted to regulate PFAS, or any other “emerging contaminant” under the spills law, the agency would have to promulgate a rule to do so. 

The spills law is triggered when “any substance or combination of substances including any waste of a solid, semisolid, liquid or gaseous form which may cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness or which may pose a substantial present or potential hazard to human health or the environment because of its quantity, concentration or physical, chemical or infectious characteristics.” 

Grogan and Lazar found that when the DNR created policies that included PFAS under this definition, it was actually creating a rule, which must go through a years-long process and is subject to review by the Natural Resources Board, the governor and the Legislature. In a dissent, Judge Lisa Neubauer wrote that definition is broad on purpose because the Legislature couldn’t have been expected to list every possible known contaminant when it enacted the law, so it gave the authority to add contaminants to the DNR. 

“The definition is inherently (and unambiguously) fact specific,” she wrote. “ In lieu of merely listing every conceivable substance and any combination and any form of substances that qualify as hazardous, [the law] requires evaluation of a substance’s actual or potential risk to human health or the environment based on its quantity, concentration, physical, chemical, or infectious characteristics, the circumstances surrounding a particular discharge, and the location at which the discharge occurs.”

Environmental groups lamented the decision’s  potential damage to the DNR’s authority to remediate PFAS contamination, which has affected the drinking water of communities across the state, yet said they’re hopeful the decision will be overturned by the state Supreme Court. 

“While we are disappointed by the court’s decision, we expect it to be appealed, and we are confident that the DNR’s efforts to keep Wisconsin families safe from PFAS contamination will ultimately be vindicated,” Rob Lee, an attorney for Midwest Environmental Advocates, said in a statement. “In the meantime, a stay on the decision is in effect, which will limit the harm suffered by those living in and around PFAS contamination sites in Wisconsin until this case is ultimately resolved.”

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