Supreme Court deliberates Spill Law future

NORTHEAST WIS. – Who should bear the responsibility of cleaning up a PFAS spill?

Besides PFAS debates contained in draft legislation proposing various ways to prevent and remediate the hazardous substances, the Wisconsin Supreme Court also will have a say, as the Wisconsin Manufacturers and Commerce Inc. and Leather Rich Inc. v. Wisconsin Department of Natural Resources case centers on PFAS detected on Leather Rich’s property and who is responsible for cleaning it up.

If the justices overturn the appellate court’s decision, Leather Rich will likely be responsible for cleaning up any PFAS on or originating from their property, said Robert Lee, staff attorney at Midwest Environmental Advocates, which has provided the court with an amicus brief encouraging the court to overturn the appellate decision in favor of Leather Rich.

If the justices uphold the appellate court’s decision, “That would throw the entire Spills Law as it has worked for nearly 50 years into disarray and would hamper DNR’s ability to require the cleanup of PFAS contaminated properties until DNR can pass administrative rules establishing which substances the department considers hazardous and in what circumstances,” Lee said.

The legislature has tried for at least seven years to pass groundwater standards without success, Lee said. ‘There is no bigger road block than the REINS Act,” he said.

The REINS Act requires the Legislature to pass a bill authorizing a rule with implementation and compliance costs of over $10 million, he said.

“Establishing standards to recreate DNR’s authority under the Spills Law would almost certainly exceed that threshold, even if done on a substance-by-substance basis, meaning the Spills Law will in effect be repealed—DNR will not be able to effectively implement the Spills law without a new law being passed by the Legislature and signed into law by the Governor,” Lee said.

The Peshtigo Times asked Lee what happens next in the Spill Law case.

The justices generally meet in conference and assign one justice to write the opinion for what a preliminary vote indicates is the majority opinion, Lee said.

“But that majority ultimately has to agree to the rationale in the written opinion for them to sign on to all or part of it,” he said. “Sometimes the justices can agree on the result but not the reasons for reaching that result, and that can lead to multiple opinions.”

The justices in the minority can write a dissent or an opinion concurring with the majority, he said.

While the DNR has continued to enforce the Spill Law and to provide communities impacted by PFAS with bottled water and other services, the case could have an impact on what the DNR does in the future, Lee said. “Since the Supreme Court will be the final decisionmaker on this case, the stay will necessarily lift and whatever the Supreme Court decides will be the law of the land,” he said.