On Wednesday, March 6, the Wisconsin Court of Appeals, District II, affirmed the April 2022 Waukesha County Circuit Court decision in Wisconsin Manufacturers and Commerce, Inc. (WMC) and Leather Rich, Inc. v. Wisconsin Department of Natural Resources (DNR) regarding the DNR's ability to regulate per- and polyfluoroalkyl substances (PFAS) as hazardous substances and administer the Voluntary Party Liability Exemption program under Wisconsin Statutes chapter 292. A direct link to the decision may be found here.
In news coverage following this decision, Wisconsin Attorney General, Josh Kaul, stated the Wisconsin Department of Justice, on behalf of DNR, will appeal this decision to the Supreme Court of Wisconsin. Absent a subsequent ruling from the Appellate Court or an action following remand to the Waukesha Circuit Court, the stay on the original decision issued by Judge Bohren remains in effect.
The Appeals Court decision requires the Wisconsin DNR to complete administrative rulemaking under Wisconsin Statutes chapter 227 to create a list of hazardous substances, including PFAS, and establish in rule actionable cleanup levels in all environmental media – groundwater, surface water, soil, sediment, and vapor – before it may regulate PFAS as a hazardous substance in Wisconsin.
The ruling, as it stands, upends Wisconsin DNR authority to regulate PFAS at remedial action cleanup sites without first completing rulemaking. This decision creates uncertainty for entities seeking to evaluate PFAS in the environment and conduct environmental due diligence for real estate transactions at properties where PFAS was utilized or likely utilized. The decision arrives days before an anticipated federal rule designating the two most well-known PFAS analytes, PFOA and PFOS, as CERCLA hazardous substances for the equivalent federal cleanup program.
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