Appeals Court Rules DNR Overstepped Legal Authority on Wisconsin Spills Law

DNR Plans to Appeal to Wisconsin Supreme Court

In a 2-1 decision on March 6, the District II Court of Appeals for Waukesha County confirmed a Circuit Court ruling that the Department of Natural Resources (DNR) is violating the law by regulating “emerging contaminants” as hazardous substances under Wisconsin Spills Law without written rules in place. 

The case was brought by Leather Rich, Inc. (LRI), a family-owned specialty dry cleaner in Oconomowoc, and the Wisconsin Manufacturers and Commerce (WMC) in February of 2021. 

According to the WMC, when the owner of LRI, Joanne Kantor, took steps to sell the business after her husband’s death, hazardous substances known as “PFAS” were found on her property, but her attempts to investigate and remediate the issue were thwarted by the DNR’s refusal to clarify what remediation was necessary. The issue extended for several years and cost the business hundreds of thousands of dollars with no resolution. Kantor was in her 80s and wanted to resolve the issue. 

In April 2022, the Waukesha County Circuit Court ruled in favor of WMC and Leather Rich. 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.

According to the WMC, 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.

What are PFAS?

The Centers for Disease Control (CDC) defines Per- and Polyfluorinated Substances (PFAS) as a group of chemicals used to make fluoropolymer coatings and products that resist heat, oil, stains, grease, and water. 

Fluoropolymer coatings can be in a variety of products, including clothing, furniture, adhesives, food packaging, heat-resistant non-stick cooking surfaces, and the insulation of electrical wire. Many PFAS, including perfluorooctane sulfonic acid (PFOS) and perfluorooctanoic acid (PFOA), are a concern because they:

• do not break down in the environment,
• can move through soils and contaminate drinking water sources,
• build up (bioaccumulate) in fish and wildlife.

Human health effects from exposure to low environmental levels of PFAS are uncertain. 

What’s Next?

“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.”

“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 I also hope that this decision protects other families from having to go through anything similar.”

The Leather Rich website states that the company is permanently closed. However, the fight may not be over yet. The DNR released a statement on March 8 that it will be petitioning the state Supreme Court for review despite losing at both the circuit and appeals courts. The latest ruling is stayed until appeals are exhausted. 

The DNR statement said, “The stay allows the department to continue under the Spills Law to work with responsible parties whose sites are contaminated by PFAS. The stay also means that Wisconsinites with private wells contaminated with PFAS who are currently receiving emergency bottled water may continue to receive a source of safe drinking water while the department appeals the order.”