State Appeals Court Upholds Lower Court Ruling Regarding PFAS Pollution

Thursday, March 7th, 2024 -- 8:01 AM

(Danielle Kaeding, Wisconsin Public Radio) A state appeals court has upheld a lower court ruling that deals a blow to state environmental regulators’ authority to force businesses to clean up PFAS pollution under Wisconsin’s spills law.

According to Danielle Kaeding with Wisconsin Public Radio, in a 2-1 decision Wednesday, a three-judge panel said policy changes by the Wisconsin Department of Natural Resources to address PFAS are unlawfully adopted rules that can’t be enforced.

That includes regulation of the chemicals, and any associated limits on PFAS, as hazardous substances under the spills law. The decision affirmed a Waukesha County circuit court judge’s ruling in favor of Wisconsin Manufacturers and Commerce, or WMC.

That decision, issued nearly two years ago, stated regulators must first list PFAS as hazardous substances through the state’s rulemaking process. “Today’s decision by the Court of Appeals protects the public’s right to know what the law requires,” said Scott Rosenow, an attorney for WMC, in a statement.

“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.” The ruling could have far-reaching implications for the DNR’s ability to address PFAS contamination in groundwater.

Since the lawsuit was first filed, the state has passed standards for the chemicals in drinking water and surface water, but there are still no state standards for the chemicals in groundwater.

The Department of Justice represented the DNR in the case. Wisconsin Attorney General Josh Kaul said the agency will appeal the decision to the Wisconsin Supreme Court.

“This would undermine our ability in Wisconsin to protect safe and clean drinking water,” Kaul told WPR. “We can’t let that happen at a time that we’re facing emerging contaminants like PFAS.”

A prior hold on the lower court ruling remains in effect. If the decision were allowed to stand, the DNR would have to wait on legislation from lawmakers that would allow the agency to continue crafting regulations for PFAS in groundwater, a process that can take years.

The agency was forced to abandon its proposed groundwater standards in December due to excessive compliance costs. Around one-third of state residents rely on private wells that draw from groundwater.

Both Republicans and Democrats in the Legislature have bills that would allow the agency to continue its work, but the proposals appear to be dead for this legislative session. The Assembly held its last scheduled floor session in February.

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