Wisconsin Manufacturers & Commerce sues DNR over remediation standards for ‘forever chemicals’

The state’s largest business lobbying group and an Oconomowoc leather-cleaning business are suing the Wisconsin Department of Natural Resources over the agency’s enforcement of hazardous chemical cleanup. 

Wisconsin Manufacturers & Commerce on Tuesday filed a complaint in Waukesha County Circuit Court over the agency’s ability to require cleanup of unregulated emerging contaminants, such as “forever” chemicals. 

The lobbying group and the business — Leather-Rich, Inc., a leather cleaning business — are alleging that the DNR is undermining the law with the way it runs its environmental cleanup program.

At the center of the complaint against the agency is a recent change in policy to focus on PFAS, and enforcing cleanup standards for the substances without going through a rulemaking process and having the standards approved by the Legislature. 

Joanne Kantor, the owner of Leather-Rich, began voluntary remediation of the site three years ago in hopes of selling the business, the complaint said. But over the course of the cleanup, the DNR changed the rules for property owners in the state, enforcing standards unapproved by the Legislature.

Those changes have forced the owner to spend significant resources on plans and reports instead of remediation, delaying her retirement. 

During a voluntary investigation of the business before it was listed for sale, Volatile Organic Compounds were found on the grounds, requiring remediation. Leather-Rich applied to enter the site into a DNR remediation program, hoping that at the end of the remediation process, the business would be released from future liability in relation to the contamination. 

The application for the remediation process was approved, and the DNR later changed its policy regarding the cleanup process, requiring that PFAS testing and remediation also occur on sites if needed. 

After the policy change, the DNR informed the business that its remediation plan was no longer approved, because it did not address PFAS testing, the complaint said. The business checked records and informed the DNR that no substances containing PFAS were used at the business, but the agency still would not approve the remediation. 

Leather-Rich then withdrew from the remediation program, citing that the DNR was acting beyond its authority with the requirement for testing for PFAS, and unnecessarily prolonging the site investigation. 

Over the course of the application process, Leather-Rich submitted more than 1,000 pages of documents and has spent nearly $236,000, the complaint said, and estimates if the owner followed the DNR’s remediation instructions, the cost would approach the total value of the property. 

The complaint notes that the DNR has a broad definition of hazardous chemicals — “any substance that can cause harm to human health and safety, or the environment, because of where it is spilled, the amount spilled, or its toxicity or its concentration” — and that there is no list of what chemicals the definition applies to.

Entities are required to inform the DNR when there is a spill of hazardous materials, but with no list, the agency expects the public to “read their minds” to determine what chemicals or substances should be reported. 

WMC is now asking that instead of enforcing a list of hazardous substances it created, the agency go through a formal rule-making process to create a list and enforceable standards. They’re asking that the court halt the enforcement of cleanups for “emerging contaminants,” including PFAS. 

“Wisconsinites have a right to know what laws and regulations the state seeks to apply against them,” Lucas Vebber, the executive director of the WMC’s litigation center, said in a release. “For too long, the DNR has refused to provide the certainty that state law requires.”

DNR communications director Sarah Hoye declined to comment on the lawsuit Wednesday morning, as the agency was still reviewing the documents. 

PFAS are a family of man-made chemicals used for their water- and stain-resistant qualities in products like clothing and carpet, nonstick cookware, packaging and firefighting foam. The family includes 5,000 compounds, which are persistent, remaining both in the environment and human body over time.

RELATED:What you should know about PFAS, or ‘forever’ chemicals, contaminating drinking water in parts of Wisconsin

PFAS, or per- and polyfluoroalkyl substances, have been linked to types of kidney and testicular cancers, lower birth weights, harm to immune and reproductive systems, and altered hormone regulation and thyroid hormones. The compounds have been found in several places across Wisconsin, including Marinette, Peshtigo, Madison, Milwaukee and La Crosse. 

POLITIFACT WISCONSIN:Bottled water doesn’t solve all problems for residents with PFAS-contaminated water

While the lobbying group is pushing back against PFAS policies created by the DNR, they’ve also pushed back against legislation aiming to curb the use of the chemicals. In December, a legislative committee stripped a provision regulating the use of PFAS-containing fire fighting foam of measures requiring treatment and disposal of the foam after its tested.   

At the heart of the push against the regulations was WMC executive vice president of government relations Scott Manley, who called them “ridiculously stringent” and said the numbers were not aligned with other numbers suggested by health regulators. 

State legislators have in the past looked at regulating PFAS, but Democrats and Republicans haven’t seen eye to eye about how to combat and identify the chemicals, or about how much should be allowed in the water Wisconsinites drink. Last year, a $7.7 million package of bipartisan legislation failed to make it to the floor and faced significant opposition from groups like WMC, the Wisconsin Paper Council and the American Chemistry Council. 

Despite the lack of action on the chemicals from lawmakers, Gov. Tony Evers proposed millions of dollars to address PFAS, including adding 11 staff members to the DNR, setting state standards and testing water supplies across the state. 

Laura Schulte can be reached at leschulte@jrn.com and on Twitter at @SchulteLaura