Wisconsin Supreme Court Justices dig into to Spill Law case

NOARTHEAST WIS. – An attorney representing the Wisconsin Department of Natural Resources said the public’s health could be at risk if the Wisconsin Supreme Court upholds the appellate court’s decision that the environmental agency overstepped its authority when it required Oconomowoc dry cleaners Leather Rich Inc. to remediate “forever chemicals” detected on its property.

It will be up to the Wisconsin Supreme Court justices to sort through the arguments in the Wisconsin Manufacturers Commerce Inc. and Leather Rich v Wisconsin Department of Natural Resources case and decide to uphold the appellate court’s finding for Leather Rich or overturn it.

The Spill Law case the Wisconsin Supreme Court is hearing involves a mom-and-pop dry cleaners, Leather Rich, which its widowed owner Joanne Kantor wished to sell after her husband died. Kantor contacted the DNR after chemicals were detected on the property, and the DNR requested further testing that revealed PFAS chemicals, according to legal documents. The amount Kantor spent to comply with DNR’s requirements exceeded $300,000 and affected her retirement, according to a legal brief Madison law firm Fredrikson & Byron P.A. filed late last year.

The DNR said its requests for more testing and remediation were in compliance with Wisconsin’s Spill Law. The dispute led to Leather Rich filing a lawsuit against the state agency, alleging the DNR overstepped its authority as hazardous limits for PFAS, or per- and polyfluoroalkyl substances, weren’t provided. The DNR petitioned the Supreme Court of Wisconsin after lower and appellate courts sided with Leather Rich.

In oral arguments before the Wisconsin Supreme Court Jan. 14, attorney Colin Roth, who represents DNR, said, “There has never been a hint of a dispute in the scientific community that PFAS discharges at very, very small levels are a hazard.”

But Leather Rich’s attorney Delanie Breuer of Fredrikson & Byron disagreed. In response to a justice’s question, Breuer said the vast number of forever chemicals and their innovation could put some of them outside the definition of hazardous.

Roth suggested this issue wouldn’t necessarily prevent the DNR from enforcing the Spill Law. In disputing Leather Rich’s position, Roth summarized it this way: “If there’s no rule, you basically can’t enforce the statute at all.” But Roth pointed out, “the court rejected that argument” in several other cases.

While there were set time constraints for the speakers, Roth was allowed to go over his allotted 30 minutes by at least 10 minutes, as the justices had a number of questions for him. The proceedings stretched on for about 90 minutes instead of 65 minutes.

Justice Rebecca Bradley suggested Roth wasn’t considering the case from the perspective of Leather Rich, which reported a spill without being told to do so, she said. “You don’t have somebody who is trying to avoid the law.” Leather Rich was cooperative with the DNR, Bradley said, but it didn’t know at what level the PFAS are hazardous. The government wasn’t particularly helpful, the justice said. “The government’s counter is, ‘Well, you have to figure it out for yourself.’ But do you see how unsatisfying that is to the regulated community?” Justice Bradley said.

While Roth said the Spill Law has been in existence for 50 years, Justice Rebecca Bradley said PFAS presents a new issue. “In the past those weren’t regulated or restricted or deemed to be hazardous substances, and now they are,” she said. She disagreed with Roth’s argument that the DNR hasn’t changed its position.

Roth said lawmakers can’t “enumerate and articulate every single possible application of the statute” when they write legislation, such as the Spill Law.

When an agency is presented with a new set of facts and must determine whether the new activity falls within the statutory standard, “I don’t think that can be fairly characterized as a change,” Roth said. “It happens all the time.”

In her arguments on behalf of Leather Rich Inc., Breuer challenged the way the Wisconsin DNR enforced the Spill Law when PFAS were detected on private land. She related Leather Rich’s experience, noting Kantor spent six years and several hundred thousand dollars “just trying to decipher what the law requires of her. She’s been attempting to remediate the Leather Rich property. More than once over those six years, DNR has changed the rules without notice unilaterally. Each time, that moves her further from completing that Leather Rich remediation.”

Breuer said in a previous case, Lamar Cent. Outdoor, LLC v. DHA, the Supreme Court reaffirmed a “fundamental principle of our legal system that regulated parties have fair notice of what is forbidden or required of them. That’s especially important here. This is a self-implementing program and it applies to every single business landowner, individual, even visitors of our state, and that’s why rulemaking is required here,” Breuer said.

Breuer assured the justices the Spill Law could continue in its present form if Leather Rich prevails, but the DNR’s enforcement authority could be narrowed to apply to spills governed by other state and federal environmental regulations.

Justice Jill Karofsky played devil’s advocate with Breuer, asking, “The Spills Law has been around for about 50 years, right? There’s nothing new about this law being applied to emerging contaminants like PFAS, right?” The justice said one aspect of PFAS that makes them a hazard is they don’t break down and remain for long periods in the air and the environment.

Breuer replied, “There are accounts of at least 9,000 PFAS, and I don’t think the record supports that that’s the case for every single one of them. I don’t think science has developed to that point.”

Karofsky,” The record that was before us though shows us that there are compounds that pose significant dangers to human health right?”

Breuer said there isn’t yet agreement on the PFAS quantities that pose health issues, as federal limits vary and don’t include every substance in the PFAS category. “I think there’s just disagreements,” she said.

In arguing for Wisconsin Manufacturers Commerce Inc., attorney Lucas Vebber said the DNR characterized its actions as “guidance,” but the interim decision had the force of law. “Rules have the force of law; guidance documents do not,” Vebber said. The DNR didn’t promulgate a new rule or announce it to the public, as it doesn’t have the authority to write new laws.

To explain, Vebber pointed to the hazardous substance definition. “It clearly contemplates that at some point in the future, yet unknown substances may become regulated by statute. The problem is, nobody knows when that point is.

The department says, ‘Oh the science has evolved to the point that it is,’ but how does everybody know?” Vebber said.

Justice Ann Walsh Bradley asked Vebber if he was making a due-process argument. Vebber agreed, saying the case raises due process concerns. He asked the justices to uphold the appellate court’s decision finding for Leather Rich.

Roth had five minutes to respond to the defendants’ arguments that DNR usurped its authority by enforcing the Spill Law when limits haven’t been set for PFAS. DNR has been acting on spills of varying degrees of hazardous for decades, Roth said. “It’s never been the rule, until arguably Lamar, that agencies are barred from acting until they promulgate a rule that contains every single interpretation of the statute.”

Besides the time-consuming process of passing a new rule establishing limits for thousands of PFAS, which potentially could stall a cleanup, another statute that requires the legislature approve expenditures of over $10 million could present another delay, Roth said.

Wisconsin Act 57, known as the Wisconsin Regulations from the Executive in Need of Scrutiny Act (Wisconsin REINS Act) requires the state legislature authorize an administrative rule involving $10 million or more in spending.

“So we’re in a situation where not only must the agency promulgate a rule defining hazardous substances, but the legislature would have to pass another bill authorizing that rule,” Roth said.

The proceedings were adjourned before Roth could elaborate further.