Wisconsin Supreme Court upholds DNR’s authority to enforce Spill Law

NORTHEAST WIS. – Siding against Wisconsin Manufacturers & Commerce (WMC), the Wisconsin Supreme Court said on June 24 that the Wisconsin Department of Natural Resources (DNR) didn’t make a mistake when it demanded Oconomowoc dry cleaners Leather Rich remediate a spill of “forever chemicals” on its property, despite the lack of rules governing PFAS in Wisconsin.

Justice Janet Protasiewicz wrote the majority opinion, based largely on the presumed dangers of PFAS, or per- and polyfluoroalkyl substances, detected in the ground where a dry cleaners had operated.

It was criticized by retiring Chief Justice Annette Kingsland Ziegler and Justice Rebecca Grassl Bradley. A Wisconsin circuit court and an appeals court had issued opinions in favor of WMC and Leather Rich.

The case was closely followed by experts in the Marinette area, where Johnson Controls has taken responsibility for a known PFAS contamination of groundwater used for drinking water in part of the Town of Peshtigo. Marinette Common Council Alder Doug Oitzinger, a retired attorney, said he had joined with Midwest Environmental Advocates to file five “friend of the court” briefs in support of the DNR.

“The Wisconsin Supreme Court made the right decision and affirmed fifty years of the DNR’s administration of the Spill Laws protecting our environment and human health,” Oitzinger said.

PFAS in the Town of Peshtigo’s groundwater were reported to the DNR in 2016, Oitzinger said. “The DNR would have been powerless to do anything for these last eight years to direct Tyco/Johnson Controls to provide bottled water, start remediation, etc. There isn’t any dispute that PFAS is a very dangerous and ‘hazardous’ family of compounds that, in the smallest of quantities, endanger every living person on earth. WMC would have you believe that only if a formal rule is adopted can a substance be ‘hazardous.’”

WMC Executive Vice President of Government Relations Scott Manley said the lack of PFAS criteria presents an unfair situation.

“The DNR refuses to tell the regulated community which substances must be reported under the Spills Law, yet threatens severe penalties for getting it wrong,” Manley said. “Businesses and homeowners are left to guess what’s hazardous, and if they’re wrong, they face crushing fines and endless, costly litigation. This ruling blesses a regulatory approach that is fundamentally unfair, unworkable, and impossible to comply with.”

Johnson Control, parent of Tyco, faces several pending lawsuits, but it also has said publicly it has taken responsibility for a PFAS groundwater contamination in a limited area in the Town of Peshtigo by providing bottled water, point-of-entry treatment systems and constructing deep wells for affected residents.

Regarding the Supreme Court opinion, a Tyco spokesperson said, “The decision in this case will not impact Tyco’s efforts to continue to do the right thing by our community.”

But, Oitzinger said the case could make a difference. “With the Supreme Court’s decision, the DNR will continue to press Tyco/Johnson Controls to remediate and mitigate the damage they have caused by their reckless discharge of PFAS firefighting foam into the environment. This will also clear the way for the Department of Justice to continue their lawsuit against the corporation for their failure to report the contamination when they first tested for it in 2013. Consequently, people continued to drink PFAS poisoned water from their wells for four additional years because the corporation didn’t notify the DNR,” he said.

Attorneys representing the Town of Peshtigo filed a lawsuit against Johnson Controls/Tyco several years ago that is still pending.

A Tyco spokesperson said, “Tyco has worked proactively, quickly and collaboratively to address PFAS associated with our historic operations. We have spent more than $100 million in our remediation efforts so far including providing clean drinking water to every person within the affected area. We’ve been part of the Marinette community for over 100 years and doing what is right for our neighbors and the environment is our priority.”

Data collected in May on the Groundwater Extraction and Treatment System (GETS) indicate over 7,000 parts per trillion (ppt) of PFOA and PFOS were detected in untreated wastewater, down from over 10,000 ppt a year earlier, Tyco said on its Marinette website, https://tycomarinette.com/.

Attorneys for respondent Leather Rich and WMC said the vast number of PFAS in use and their varying degrees of health risks made the DNR’s demands unreasonable, but the majority of justices disagreed.

The DNR has provided information on PFAS’ health effects, which Protasiewicz said she relied on in writing the court’s opinion. “PFAS increases the risk of thyroid disease and some cancers, adversely affects endocrine and reproductive systems, increases cholesterol, and decreases fertility in women, infant birth weights and human responses to vaccines,” the opinion said.

The opinion said Leather Rich provided the DNR with information on Department of Health Services (DHS) standards for PFOA and PFOS at the time, and the DNR told Leather Rich to continue reporting on levels exceeding the DHS standards.

“We hold that the DNR’s October 28, 2020 letter directing Leather Rich to report ‘individual and combined exceedances’ for PFAS was not a ‘regulation, standard, statement of policy, or general order of general application’ under § 227.01(13). The DNR’s letter only applied to Leather Rich,” the opinion said, and referred to DNR’s correspondence as “guidance” and not rule-making.

Joining Protasiewicz for the majority were Justices AnnWalsh Bradley, Rebecca Dallet, Brian Hagedorn and Jill Karofsky.

The dissent said the majority severely downplayed the importance of having three separate, distinct branches of government, with the legislative branch given the authority to create new laws, not the executive branch, where the DNR sits. The blurring of boundaries between the legislature and the executive branch agency risks upsetting the state’s foundational government structure, Bradley said.

To allow the DNR’s Spill Law enforcement to extend to spills of substances so new they haven’t been regulated risks “[enables] the DNR to blindside the regulated community with vague and shifting directives and associated penalties for noncompliance. Permitting such unchecked power to be wielded by bureaucrats is antithetical to the Founders’ vision of our constitutional Republic,” dissenter Bradley said.

The DNR’s failure to provide proper notice of PFAS enforcement without established criteria raises an issue of tyrannical government, she said.

The majority opinion, however, largely skirted the issue of government over-reach and said the Wisconsin Spill Law doesn’t specifically require the state to promulgate rules before the DNR addresses a hazardous-substance spill by requiring the responsible parties to “restore the environment to the extent practicable and minimize the harmful effects,” Protasiewicz said.

The case began seven years ago when widow Joanne Kantor decided to sell Leather Rich Inc., a family owned dry cleaners she and her late husband, Ron, operated for over 40 years. Despite a barrier the Kantors installed beneath the building, an environmental survey of the property found low-level volatile organic compounds thought to be related to dry cleaning chemicals and enrolled in the DNR’s Voluntary Party Liability Exemption program. This began a lengthy three-year investigation of the property, which cost about $300,000, according to Leather Rich’s attorneys.

According to the dissent, “The DNR ordered Joanne to test for such ‘emerging contaminants’ but never clarified which of the 9,000 PFAS compounds or thousands of PFAS mixtures it considers hazardous, or in what concentrations, preventing Joanne from completing remediation of the site.” With no apparent end in sight to the investigation, Kantor sued the DNR. The circuit court and appeals court decided in favor of Leather Rich.

Despite the dissent, this time the court said preventing harm to the environment and the public’s health by addressing the spill allowed the DNR to hold Leather Rich accountable.