PFAS sample testing bottles | Photo by Department of Environment, Great Lakes, and Energy
A legal battle is brewing in Wisconsin over the issue of industry-caused water and land contamination. Environmental and public health groups are asking the court to allow it to help defend the state in a lawsuit brought by Wisconsin Manufacturers & Commerce (WMC), which is accusing the Department of Natural Resources (DNR) of “unilateral and unlawful behavior” related to the regulation of PFAS (Per- and polyfluroalkyl substance) and other such chemical contaminants.
The lawsuit, which is currently in Waukesha County Circuit Court, focuses on the Spills Law, which grants the DNR the ability to regulate the discharge of hazardous substances. If a hazardous substance is discharged into the air, land or water, then the party responsible is required to immediately notify the DNR. If a discharge isn’t reported, then the department may launch an investigation that could result in the responsible party being fined up to $5,000 per day. The party responsible for the spill, under the law, must also evaluate the contamination including sampling, and identifying potential wells or water sources which may have been contaminated.
That’s what happened to Leather Rich Inc., an Oconomowoc dry-cleaner that received a DNR letter outlining a site investigation plan for a spill. Leather Rich, which is at the center of WMC’s lawsuit, was identified by the DNR as a potential source of PFAS, as the site had been occupied by a dry-cleaning facility since 1993 — a common source of the pollution.
PFAS are part of a group of man-made compounds utilized in a variety of industry products from fast food wrappers, to non-stick pans, clothing and firefighting foam. Although they serve versatile uses in industry, the compounds don’t break down in the environment or our bodies. PFAS and its relatives have also been linked to several categories of chronic disease in humans and animals. A fish advisory was recently issued by the DNR for water systems in Lincoln County, where PFAS was detected.
The Leather Rich site investigation detected soil and groundwater contaminated with discharged PFAS. WMC’s lawsuit is jumping on the fact that the DNR uses the phrase “emerging contaminates,” which include PFAS. But WMC argues that the DNR’s policy of regulating emerging contaminants is not specific in the rules regarding how hazardous substances are defined. The group argues it is, “an unlawfully adopted rule, and is invalid and unenforceable.” Furthermore, it states that the DNR, “freely change what substances and concentrations of substances are considered a ‘hazardous substance … without notice, and with no public input or legislative oversight.”
Environmental and health advocates counter that the suit is simply an assault on the Spills Act, which is in place to protect people and natural resources.
“If WMC prevails in dismantling the Spills Law, efforts to clean out those waterways will be reversed by unregulated pollution,” said Allison Werner, executive director of River Alliance of Wisconsin. “Preserving the integrity of the Spills Law is crucial to DNR’s ability to protect Wisconsin’s rivers and lakes. WMC’s assault on the Spills Law is a significant threat to Wisconsin’s water resources, to public health and to all the sectors of our economy, including tourism and agriculture, that rely on clean water.”
Werner noted that the outcome of the lawsuit will also affect her personally.
Werner and her family live in Madison, just a couple blocks from the Starkweather Creek. In January 2020, several compounds including PFAS and other forever chemicals were detected in the creek. Additionally, a foam was observed on the water’s surface, which usually indicates high levels of forever chemical contamination. Both the Department of Natural Resources and the Department of Health Services recommended that all contact with the water be avoided.
“That means my family and I no longer feel safe fishing or recreating in the creek, activities which we enjoy,” said Werner during a joint news conference with other environmental and public health advocacy groups on Monday.
Recognizing the potential consequences of removing the DNR’s authority under the Spills Act, the coalition united to request permission to intervene on behalf of the DNR and the state in fighting WMC’s lawsuit. The coalition includes Midwest Environmental Advocates, Citizens For A Clean Wausau, Clean Water Action Council, River Alliance of Wisconsin and the Wisconsin Environmental Network.
Dr. Beth Neary, co-president of the Wisconsin Environmental Health Network, spoke to the lawsuit’s dangers from a more technical and medical perspective. Neary, who practiced general pediatrics in Madison for many years, highlighted the health concerns of weakening clean-up regulations. “Over the years I have given presentations and testified numerous times before the Wisconsin Legislature on the negative health effects of exposure to toxic substances from lead, to PFAS and more, Neary said. “As a health professional I have become increasingly concerned about the health effects of PFAS. These chemicals are extremely dangerous.” In particular, she cited their non-degradable qualities.
“There’s no effective way to remove them,” she added. “Exposure to PFAS, even at low levels, has been linked to serious health problems including increased risk for certain cancers, reproductive and developmental problems, thyroid hormone disruption, elevated cholesterol, ulcerative colitis and negative impact to the immune system, including decreased response to vaccines. WMC’s lawsuit would potentially remove the only meaningful public health protection that we have to address PFAS and other toxic chemicals, the Spills Law.”
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Wisconsin’s Spills Law has existed for more than 40 years and applies not only to PFAS, but also to manure spills and numerous other contaminants. Advocates said the case will determine nothing short of whether the DNR can continue to protect against these dangers to the environment and public health. “A ruling in this case that favors WMC and undermines the Spills Law would have devastating consequences for the health of Wisconsinites,” Neary said. “We simply can not allow that to happen.”
Tom Kilian, a founding member of Citizens for a Clean Wausau, echoed Neary’s concerns. “It’s important to point out that the outcome of this case could have implications for virtually every community in the state,” Kilian warned. “Not just those facing PFAS contamination. The City of Wausau, and its citizens, are directly impacted by the DNR’s ability to regulate hazardous contamination under the Spills Law.”
One by one, organizations joining forces to challenge WMC’s lawsuit expressed the same fears: Without the Spills Law, the DNR efforts to address industrial contamination sites would have no teeth. On Monday the Waukesha County Circuit Court set a briefing regarding the motion to intervene by environmental groups to happen by Wednesday, with a reply to be issued by July 28. Subsequent hearings are scheduled to begin Sept. 24.
The backdrop to the lawsuit were recent actions by the state’s budget committee — the Joint Finance Committee — that stripped several key policy initiatives geared specifically toward fighting PFAS contamination from the next biennial budget. Among the items removed were 11 proposed scientist positions from the DNR, as well as a grant program for communities tackling contamination, and another program geared toward testing all public water supplies for toxins.
PFAS clean up in the state budget
“PFAS aren’t going to go away,” said Sen. Brad Pfaff (D-Onalaska), Milwaukee Journal Sentinel reported. “We need to step forward and work together in order to find common ground to make sure residents and businesses can have access to safe drinking water. … We’re talking about water, a liquid that impacts every community.”
As the lawsuit brought by WMC is advancing in Waukesha County Circuit Court, the Republican-majority on the state budget committee voted to remove a number of critical initiatives related to cleaning up PFAS and other man-made “forever chemicals.”
Tony Gibart, executive director of Midwest Environmental Advocates, was dismayed by the vote. He said that these actions “are indicative that the majority members of the Legislature and of the various committees are not sufficiently prioritizing public health, and addressing PFAS in Wisconsin.” He added that the Legislature’s cavalier approach to forever chemicals “is part of the reason why the consequences of this lawsuit are so dire and why so much is at stake in this lawsuit.”
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