Circuit court judge says Wisconsin DNR overstepped PFAS regulatory power
Concern about PFAS, often referred to as forever chemicals, has escalated in recent years. An increasing number of Wisconsin communities grapple with well contamination. In the Peshtigo/Marinette area, the problem there stems from a nearby firefighting foam facility.
But a judge ruled Tuesday that Wisconsin regulators don’t have the power to regulate PFAS and other emerging toxic contaminants when carrying out an existing regulation — called the spill law.
Waukesha County Circuit Court Judge Michael Bohren ruled that because Wisconsin legislators haven’t established PFAS standards, the DNR must wait before regulation can begin.
Bohren acknowledged it’s the DNR’s job to protect the state from pollution. But he said doing so without laws regulating those pollutants would mean operating “on a whim and a fancy.”
"Right now at least in reading the briefs that were filed, the DNR … seems to make a determination based on what they know, or they think they know, then to to apply it to the responsible parties involved in the remediation process. I found that, that is excessive beyond their statutory authority," he said.
The ruling was a win for the state’s biggest business lobbying organization, the Wisconsin Manufacturers and Commerce. Last year, it filed a lawsuit against the DNR asserting the agency “failed to follow the required rulemaking process for establishing a new regulatory standard related to PFAS substances.”
Environmental groups disagree, and say the rule-making process can stretch out for years as contamination continues to spread.
In February, the Natural Resources Board approved limits for two of the most studied PFAS in drinking and surface, but not for proposed groundwater standards.
The Wisconsin Legislature has not yet OK'd the drinking and surface water limits.
In response to Tuesday’s circuit court ruling, Midwest Environmental Advocates expressed disappointment. The organization said, “We expect it to be appealed and are confident that the DNR’s efforts to keep Wisconsin families safe from PFAS contamination will ultimately be vindicated.”
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