NORTHEAST WIS. – Oconomowoc might be 175 miles from Marinette, but residents here are still watching a legal case about a dry cleaners’ PFAS-contaminated site there and the Wisconsin Department of Natural Resources’ efforts to hold the company responsible.
Opposing the Wisconsin DNR is Wisconsin Manufacturers Commerce Inc., a large pro-commerce business group that sued the state environmental agency and the Wisconsin Natural Resources Board, accusing it of overreach in its efforts to compel a family-owned dry cleaners to pay for a cleanup of PFAS or per- and polyfluoroalkyl substances often referred to as “forever chemicals” because they don’t easily break down.
The DNR finds itself the defendant-appellant-petitioner before the Wisconsin Supreme Court as it fights to maintain the strength of the Wisconsin Spill Law and the DNR’s authority to hold companies responsible for hazards occurring on their properties.
Wisconsin State Attorney General Josh Kaul is representing the DNR. He filed an opening brief Oct. 16 by asking the Wisconsin Supreme Court to consider if the appeals court’s ruling were to hold, state executive agencies wouldn’t be able to enforce any statute requiring interpretation without first passing a new rule clarifying it. In the case of a hazardous spill, where speed is often important, this obstacle could prevent or significantly delay a cleanup.
As Kaul writes, “These examples demonstrate how the Spill Law is structured to avoid a lag between (1) the scientific understanding of a contaminant’s negative impact on the environment and human health and (2) that contamination’s regulation—the two go hand-in-hand, without the need for statutory amendments or rulemaking.”
While Manufacturers Commerce Inc. has won two previous court battles in this matter, the DNR could have an edge this time around because the high court has a different composition and leaning than the Waukesha court where the case originated. In March, the appeals court had a 2-1 split decision in favor of Wisconsin Manufacturers Commerce, but Kaul has no trouble explaining where he believes the appeals court erred.
According to Kaul, the court’s first mistake was that it did not fully understand the intent of Wisconsin’s Spill Law, which allows the DNR to ask responsible parties to address a spill of emerging contaminants, including those where maximum contaminant levels haven’t been set, as is the case for PFAS. The hazardous substances are used in coatings, weather-resistant fabrics, shampoos and many others consumer packaged goods. According to the U.S.
Environmental Protection Agency, these forever chemicals are linked to cancer, thyroid issues, liver problems, high cholesterol, hypertension and low birth-weight babies.
The Spill Law broadly defines a “hazardous substance” as “any substance” which “may pose a substantial present or potential hazard to human health or the environment,” Kaul said in the brief.
The respondents -- Wisconsin Manufacturers and Commerce Inc, and dry cleaners Leather Rich Inc. – have a limited number of days to file their response. Nick Novak, vice president communications and marketing at Wisconsin Manufacturers and Commerce Inc., told a reporter the organization is not commenting on the ongoing litigation.
Wisconsin Manufacturers Commerce Inc., a state chamber and manufacturers association, is involved in lobbying, besides litigation and often leans Republican. In deciding Evers v. Marklein, the Wisconsin Supreme Court ruled 6-1 that efforts by Sen. Howard Marklein and other Republicans to block the Evers administration from implementing environmental policies were unconstitutional.
This case began several years ago when Manufacturers Commerce Inc. and dry cleaners Leather Rich Inc. sued the DNR. They won their case locally in April of 2022, when a Waukesha County Circuit Court judge ruled the DNR overstepped its authority when it failed to establish a regulatory standard for forever chemicals through proper channels yet expected the dry cleaners to foot the bill to clean them up.
This past March, Manufacturers Commerce Inc. won again in the District II Court of Appeals by a 2-1 decision. The court upheld the lower court’s finding that the DNR acted unlawfully by attempting to hold a business accountable for a hazardous spill when rules stipulating maximum contaminant levels for PFAS didn’t exist.
The Wisconsin Supreme Court agreed to hear the DNR’s appeal in September. As the state’s highest court hears both sides of the dispute in the coming months, it will likely be considering this question: Who should bear the responsibility for cleaning up a hazard, particularly if it wasn’t regulated at the time of the spill?
In Marinette County, Johnson Controls’ Tyco unit has assumed some responsibility for a PFAS contamination in a limited area in the Town of Peshtigo by offering residents there bottled water and funds to build a deep well or install a Point of Entry Treatment System (POETS), but the battle isn’t over. “We’re in litigation right now,” Jennifer Friday, chair of the Town of Peshtigo’s Town Board, said.
Tyco has installed about 79 deep wells for residents in the Town of Peshtigo and a small area of Marinette, and 124 replacement wells had been requested as of September, she said. Friday was elected in April 2023.
“We have the same goal as the previous administration – clean water,” she said. With Tyco providing a choice of water options for residents living in an area where PFAS was detected in groundwater, Friday said the topic hasn’t come up at recent Town Board meetings.
“I dissolved the Water Committee,” she said. “We didn’t know which direction we were going, and it was previously supervised by Chairperson Cindy Boyle and Supervisor Kayla Fulton, both of whom are no longer Town Board members,” Friday said.
“It hasn’t been necessary. I get monthly updates from DNR and Tyco and update the public. We’re in litigation. So currently, it’s in the hands of the attorneys,” she said.
For the Town Board, Friday said, “There’s no work to be done at this regard. I think everybody is on bottled water and some are on POET systems – or at least everybody who wants to be on bottled water is,” she said.
“PFAS is still an issue, however deep wells are being placed in an area Tyco has taken responsibility for,” Friday said.
While the previous Town Board had begun researching the cost and feasibility of constructing a water line to the Bay of Green Bay or to the City of Peshtigo’s public water supply drawn from deep wells, the Town doesn’t have the resources to foot the estimated $100 million to build the line. The litigation could result in funds for such a project.
“We’re in a standstill with the litigation right now, so as far as the water goes, the residents who are in the area where Tyco took responsibility, they’re getting deep wells. They’re getting their clean water. The residents outside of the area, if they test higher than 20 parts per trillion, then the DNR was providing water,” Friday said.
Tyco said it has spent over $100 million to address the contamination, including the costs of removing PFAS-contaminated soil from its property, $25 million on a Groundwater Extraction and Treatment System (GETS) and the expense of providing safe drinking water for residents in the area of known contamination from Tyco’s firefighting foam, according to a spokesperson.
However, this amount isn’t enough to satisfy area environmentalists who suggest the contamination has spread beyond the area Tyco has taken responsibility for. Folks like retired hydrogeologist Jeff Lamont worry about what kind of chemicals the company might be using today that could be involved in the next spill.
What might happen in Marinette County if Wisconsin’s Spill Law were to become watered down in the Manufacturers Commerce Inc. V DNR case is a question many people in the Town of Peshtigo hope not to address.
While Manufacturers Commerce Inc. contends companies shouldn’t be required to clean up a contamination if the Natural Resources Board hasn’t provided Maximum Contaminant Levels for the contaminants, Kaul said the Spill Law exists to clean up spills of “emerging contaminants” because to fail to contain chemicals and unknown substances could put the public at risk.
According to Kaul, a substance doesn’t necessarily need to be deemed “hazardous” by the Natural Resources Board to cause an environmental problem, and a spill of it would still require remediation. Even milk can pose a hazard if it is spilled into a river in such a quantity as to kill the fish, Kaul said in the brief. Who should clean it up? The DNR says the party who spilt the milk should be held accountable for cleaning it up, even if they were the ones who brought the problem to the DNR’s attention.
Others contend businesses who are good citizens in reporting a hazard should receive a break for being forthcoming with the information. To hold these companies accountable for the entire cost of the cleanup can be excessively punitive, particularly when the cause of the spill could predate the current owner of the contaminated site, Manufacturers Commerce Inc. said.
“When the government ignores the rulemaking process, employers are left in the dark as to what regulations they must follow. Businesses cannot afford to have that kind of uncertainty, and we do not think it is too much to ask for DNR to simply follow the law as written,” said WMC Executive Vice President of Government Relations Scott Manley in a 2022 statement about its victory in the original Leather Rich lawsuit against the DNR. “Today’s decision assures the business community that regulators must operate within their own authority.”
After the MCI’s win this past March in Appellate Court, WMC Litigation Center Executive Director Scott Rosenow, who represented MCI, said in a statement, “Today’s decision by the Court of Appeals protects the public’s right to know what the law requires… 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.”
Both sides say the battle involves the public’s right to know. The DNR said the Spill Law encourages companies to report hazardous spills through its Voluntary Party Liability Exemption program. The program provides DNR certification after a site is cleaned up or restored. The certification exempts the property’s current and future owners from Spill Law liability for past hazardous discharges, according to the DNR’s most recent legal filing.
In disagreeing with the appeals court’s decision, Kaul cited a number of chemicals known to be hazardous that the Spill Law covered as “emergent contaminants” despite no administrative rules providing Maximum Contaminant Levels. They include polychlorinated biphenyls (PCBs), which were banned in 1979 after research linked PCBs to cancer and other health issues involving the immune system, the nervous system and reproductive system. Over 350 PCB remediation sites exist without an administrative rule providing an MCL, the DNR said.
About 770 cleanup sites in Wisconsin involve tetrachloroe-thylene (PCE), a dry cleaning solvent used from 1970s through the 2000s when no administrative rule existed regulating the amount considered safe. Similarly, Wisconsin also has over 400 remediation sites near former fuel stations for methyl tert-butyl ether (MTBE), a fuel additive detected in groundwater, despite having no administrative rule for the contaminant.
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