Outcome of PFAS Decision Remains Uncertain in the Midst of Stay

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On February 23, 2021, Plaintiffs Wisconsin Manufacturers and Commerce (WMC) and Oconomowos dry cleaner sued Wisconsin’s Department of Natural Resources (WDNR)  seeking declaratory relief and an order to enjoin WDNR from attempting to regulate certain emerging contaminants, including per- and polyfluorolalkyl substances (PFAS), and from enforcing the agency’s “interim decision” policy.

Wisconsin’s equivalent to the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA), the Spill Law, regulates the discharge of hazardous substances into the environment. The plaintiffs assert that WDNR’s “interim decision” policy unilaterally imposed testing and potential remediation of emerging contaminants—not listed as hazardous substances—by circumventing the required rulemaking process.

On April 12, 2022, Judge Michael Bohren ruled in favor of the plaintiffs reasoning that since PFAS are not listed as hazardous substances in Wisconsin and do not have specific numerical levels to trigger a cleanup, WDNR lacked authority under the Spill Law to impose cleanup requirements for PFAS.  

Despite ruling against WDNR, Judge Bohren recently agreed to temporarily stay his April decision through WDNR’s appeal of that ruling. WDNR filed its Notice of Appeal on April 29, 2022. As a result, WDNR may continue regulating PFAS and other emerging contaminants under its current policies. Reportedly, Judge Bohren anticipates that the Wisconsin Supreme Court will take the case directly.

The case name is Wisconsin Manufacturers & Commerce, Inc. and Leather Rich, Inc. v. WDNR, (Waukesha County Case 2021CV000342).

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