Wisconsin Supreme Court PFAS litigants prepare for oral arguments

NORTHEAST WIS. – The case of Leather Rich and Wisconsin Manufacturers Commerce Inc. v. Wisconsin Department of Natural Resources is headed for oral arguments in January.

Wisconsin Attorney General Joshua Kaul said in a Nov. 20 legal brief that Wisconsin’s Spill Law and the Wisconsin Department of Natural Resources’ authority could be gutted if the Wisconsin Supreme Court decides against the DNR’s enforcement of the Spill Law and in favor of Leather Rich, an Oconomowoc dry cleaner no longer in operation.

“Respondents’ sweeping argument would gut not only DNR’s core executive power to enforce the Spill Law, but also all agencies’ power to enforce the standards they administer,” Kaul said. “To preserve both the Spill Law and the entire executive branch’s ability to take care that the laws be faithfully executed under article V, 4, of our constitution, it must be rejected,” he said in the legal brief filed with the state’s Supreme Court.

While the case involves one small business faced with a spill, Tony Wilkin Gibart, executive director at Midwest Environmental Advocates, a nonprofit legal center in Madison, said the implications are enormous, including in the Peshtigo-Marinette area, where PFAS thought to stem from Johnson Controls’ Tyco unit’s use of firefighting foam were found in groundwater used for drinking water.

The enforcement of the State of Wisconsin v. Tyco and Johnson Controls case is on hold because of this pending litigation, said Tony Wilkin Gibart, executive director at Midwest Environmental Advocates, a nonprofit legal center in Madison.

“The case that’s currently pending in Marinette County Circuit Court is over Tyco’s noncompliance with the Spills Law. The state has alleged Tyco Johnson Controls failed to notify the DNR or anyone of the extent of the PFAS when it first knew about it,” Gibart said.

It alleges Johnson Controls knew about the significant PFAS contamination problem as early as late 2013, yet Tyco didn’t provide results of its 2013-2016 samplings to the DNR promptly. Instead, it waited until 2017 to meet with the DNR and the City of Marinette, according to the state’s lawsuit against Tyco.

Wisconsin law requires responsible parties to immediately halt a hazardous discharge to minimize the harmful effects to the air, land and water, according to the State of Wisconsin. In 2019, the DNR hired Wood Environment & Infrastructure Solutions Inc. to sample private wells in an Expanded Site Investigation Area near Tyco’s known spill. Wood sampled over 415 private drinking water wells in the expanded area and found 31 had PFAS levels in excess of the state’s proposed safe levels. The State of Wisconsin has provided bottled water to residents with contaminated wells since Nov. 2020.

If Leather Rich were to prevail in the State Supreme Court case, the state wouldn’t be able to enforce the requirement that parties responsible for a hazardous spill must notify the state and remediate, Gibart said.

“It would upend the Spill Law and have implications for all of the PFAS contamination sites across the state — and sites of contaminations affected by other toxic substances,” he said.

“Not only would Tyco be let off the hook for that failure to notify the community, but other entities that pollute the groundwater also may no longer have to notify the state and the community when they release hazardous substances if this lawsuit is successful,” Gibart said.

Leather Rich is owned by Joanne Kantor, a widow who wanted to sell the property after her husband died, according to legal documents. Leather Rich had notified the Wisconsin DNR of a possible spill of dry cleaning chemicals and sought the DNR’s help to remediate the spill, according to legal documents.

Subsequently, the DNR detected PFAS, or forever chemicals, at the site.
While this lawsuit is pending, the U.S. Environment Protection Agency announced Dec. 9 it is banning the use of trichloroethylene (TCE) and perchloroethylene (PCE) and in dry cleaning in the United States.

TCE, which the EPA said is known to cause kidney and liver cancer, non Hodgkin’s lymphoma and damage to the immune system, central nervous system and reproductive organs, is expected to be banned for most uses within 12 months. PCE is expected to be phased out over a 10-year period to eliminate risks to workers at dry cleaning facilities, according to a news announcement.

Leather Rich has contended the Spill Law’s vagueness thwarted its compliance efforts, but Kaul said the fact that PFAS were found in an amount considered to be hazardous isn’t in dispute.

“Leather Rich detected significant quantities of two PFAS compounds — PFOS (eight times greater than Leather Rich’s proposed standard) and PFOA (1.5x greater than the proposed standard) — in groundwater on its property,” the DNR brief said. “Those PFAS compounds are harmful to human health and so there is no real question that Leather Rich’s discharge ‘may pose a substantial present or potential hazard to human health or the environment.’”

The amount of money 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 in this case in November. It also spurred Kantor’s lawsuit. She won the first and second rounds, including in the Wisconsin Court of Appeals. But the DNR isn’t giving up its fight.

Without regulations in place informing the public at what level PFAS become a hazard, attorneys for Leather Rich argue, Kantor is disadvantaged in her efforts to remediate the hazardous spill.

But Kaul sees the case differently. Leather Rich’s contention that the DNR shouldn’t require remediation of a spill without promulgating a rule stipulating how much PFAS are too much flies in the face of years of success with the Spill Law, which was created to hold polluters accountable and serve as a disincentive for other potential polluters, according to Kaul.

Leather Rich also wants to receive a liability exemption from the Spill Law, which Kaul said would transfer cleanup liability to taxpayers.

The legal briefs are in the hands of the seven elected Supreme Court justices, who are scheduled to hear oral arguments Tuesday, Jan. 14, Gibart said. “Both sides will present arguments and will answer questions from the justices. The justices will consider the case and issue a decision, likely in the first half of 2025,” Gibart said. Typically, one justice is chosen to draft the opinion, though others can write dissents, he said.

Whether the dry cleaners knowingly withheld information about the PFAS found at its site is less important than the fact Leather Rich sought an exemption from the PFAS law, according to Gibart.

When asked whether banning the hazardous chemicals might be more efficient than litigating complaints about the onerous and costly PFAS cleanup issue, Gibart said, “Certainly it would be wise if we took steps to restrict the manufacture of a PFAS compound. Even if we were to do that today, we would still have a huge problem on our hands and there would be a need for the Spills Law to address that problem,” he said.

While the Leather Rich response to the DNR’s opening brief in the Supreme Court case cited two prior cases — Lamar Central Outdoor LLC v. DHA, and Schoolway Transportation Company Inc. v. DMV — involving changes in the way a statute was interpreted, Kaul said the case in front of the highest court doesn’t involve a new interpretation of the Spill Law.

“Here, DNR did not ‘change’ a ‘prior interpretation’” of a Wisconsin statute, Kaul said. “Rather, it confronted a new factual scenario: what to do about PFAS discharges, an issue on which DNR had never taken a position before,” Kaul said in the brief.

The Spills Law has operated to protect Wisconsin communities for about 50 years, Gibart said, agreeing with Kaul’s argument that it allows the DNR to decide if a spill is hazardous and needs to be cleaned up.

To ask the DNR to establish a maximum contaminant limit for PFAS before enforcing a cleanup isn’t practical nor is it in the interests of the public, according to Midwest Environmental Advocates.

“The DNR cannot be forced to promulgate rules before applying its interpretation of a regulatory statute like the Spill Law. The Spill Law tells regulated parties what to do — report and remediate hazardous substance discharges — and the DNR has the core constitutional power to interpret and enforce those requirements,” Kaul said.

While Leather Rich criticizes the Spill Law for its vagueness, Kaul argues this is a cop out and a distraction from the facts of this case, including PFOS detected at eight times the proposed standard and PFOA at 1.5 times the proposed standard, the DNR brief said.

Kaul also disputes Leather Rich’s contentions that the Spill Law “is unconstitutionally vague” and requires “reading the DNR’s mind.”

These contentions are simply incorrect, according to Kaul. “No courts have taken such a remarkable view,” he said. “In any enforcement action, DNR must still prove that a discharge meets the objective statutory standard. There is no real doubt that the PFAS compounds here, which can cause increased cholesterol, blood pressure, risks of thyroid disease and lower infant birth weights and vaccine responses, pose a ‘substantial ... hazard to human health.’”

Without the DNR’s enforcement authority granted by the Spill Law, the communities affected by PFAS and other hazardous contaminations are left to fight these battles themselves, said Rob Lee, staff attorney at Midwest Environmental Advocates in Madison. He said this often means by suing, which can be expensive and time-consuming.

Filing under tort law requires an injury, Lee said, while the Spill Law works to prevent injury.

The state of Wisconsin lacks the resources and the manpower to fund every hazardous cleanup, so hazardous spills will be overlooked, Lee said. “That, in turn, means increased public exposure to hazardous substances, damages to natural resources on which we all rely, and economic impacts.”