Wisconsin judge leaves PFAS regulation ruling on hold

MADISON, Wis. (AP) — A Wisconsin judge on Tuesday agreed to keep on hold his ruling from April that prevented state regulators from requiring businesses and others responsible for pollution by PFAS chemicals to investigate and clean up the contamination.

Waukesha County Circuit Judge Michael Bohren said because of the importance and impact of his ruling, it made sense to keep it on hold while the state Department of Natural Resources appeals.

In April, Bohren ruled that state regulators must go through Wisconsin’s rule-making process to establish guidelines for dealing with the PFAS toxins known as forever chemicals. The ruling was a win for Wisconsin Manufacturers & Commerce, the state’s largest business and manufacturing lobbying group, and Oconomowoc-based dry cleaner Leather Rich, which brought the lawsuit last year.

Bohren said he expects the Wisconsin Supreme Court to take the case directly, skipping the state appeals court, to expedite a resolution.

Assistant Wisconsin Attorney General Gabe Johnson-Karp, arguing for the DNR, said Tuesday that allowing the ruling to take effect immediately could prevent the agency from continuing to provide bottled water to 1,300 households affected by PFAS contamination.

Lucas Vebber, attorney for Wisconsin Manufacturers & Commerce, said the state has other options, including creating a rule to regulate PFAS chemicals.

Under the judge’s earlier ruling, the Department of Natural Resources must wait for legislators to define the chemicals to be regulated and impose limits in state law or through an administrative rule. That process can take years.

The Republican-controlled Legislature has been working to weaken state agency authority under Democratic Gov. Tony Evers, making it all the more unlikely that meaningful regulations would be approved.

Attorneys for the DNR argue that existing law gives the agency broad discretion over how to handle contaminants, and there’s no need to go through the rule-making process to regulate PFAS. The DNR’s ability to protect public health and the environment will be neutered under the judge’s ruling, environmentalists and residents in communities dealing with PFAS pollution have said.

According to the lawsuit, Leather Rich entered a DNR program designed to help businesses that voluntarily report pollution with clean up in 2019. The following year, DNR officials declared that businesses in the program need to test for “emerging contaminants,” including PFAS, without explaining which of the more than 4,000 PFAS compounds to look for or what levels would be considered too high.

The agency lacked any basis in state law to make such a move, which was done without legislative oversight or opportunity for public comment, the lawsuit alleged.

PFAS is an acronym for per- and polyfluoroalkyl substances — human-made chemicals used in nonstick cookware and firefighting foam. Multiple studies have shown they can cause health problems in humans, including decreased fertility, developmental delays in children, increased risk of some cancers and a weakened immune system, according to the U.S. Environmental Protection Agency.

The DNR currently lists nearly 90 sites across Wisconsin with PFAS contamination, which has affected both private and public drinking water. A number of municipalities are dealing with PFAS-contaminated groundwater, including Madison, Marinette, Campbel, Peshtigo and Wausau.