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Business group lawsuit seeks to halt PFAS sampling program by Wisconsin DNR

Wisconsin’s largest business interest lobbying group has filed suit against the state Department of Natural Resources, asserting that state law doesn’t allow the agency to carry out a program to sample wastewater at industrial and municipal sites for the “forever chemicals” known as PFAS.

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The lawsuit, filed Monday in Jefferson County Circuit Court, seeks to block DNR from requiring that certain facilities, including some that are WMC members, allow testing of wastewater for PFAS, for which WMC states there are as yet no standards under state law. It also wants to bar making the results of those samples public.

DNR and its secretary, Preston Cole, “do not have statutory authority to implement and enforce their program to sample for compounds that they have no standards for under state law,” WMC’s lawsuit states. “Moreover, insofar as (DNR and Cole) seek to publish the results of their sampling program, they are risking significant reputational harm to the businesses that are being unlawfully forced to participate in this program, even those businesses that are in compliance with state law and their own permits.”

According to court records, a Jefferson County judge on Tuesday issued a temporary restraining order halting the sampling program until more facts are developed in the matter. Hearings are scheduled for Thursday and on April 12.

The lawsuit seeks a finding that the sampling program is unlawful and a permanent order barring DNR from implementing or enforcing it.

Last month, WMC and an Oconomowoc dry cleaner sued DNR in Waukesha County Circuit Court, seeking to block DNR’s ability to require cleanup of unregulated “emerging contaminants,” such as PFAS, the “forever chemicals” that have polluted groundwater in sites across the state, including Madison.

In this lawsuit, WMC states that DNR is creating a rule to regulate two specific PFAS compounds under discharge permits issued to businesses and municipalities. If the compounds are found, under the proposed rule wastewater must be treated to remove them, at a cost DNR has said it expects to be “significant,” the lawsuit states.

“Indeed, WMC members expect the cost associated with compliance with this proposed rule to be in the tens of millions of dollars,” the lawsuit states.

The lawsuit asserts that under state law, any state agency that proposes a rule expected to have $10 million or more in implementation and compliance costs, which are to be passed along to business or municipalities, may not create the rule without the Legislature’s approval.

The sampling program is related to the PFAS rulemaking process, the lawsuit states, and would allow DNR to require businesses to allow DNR staff to enter facilities to take wastewater samples. DNR intends to test for more than 30 PFAS compounds, the lawsuit states, well beyond the two compounds that are the subject of the ongoing rulemaking process.

That sampling has already begun, the lawsuit states, and DNR intends to make the results public, which WMC asserts could stigmatize affected businesses as polluters.

“Engaging in the type of fishing expedition that the sampling program establishes is unlawful because (DNR and Preston) lack statutory authority to take such actions, and is additionally irresponsible and unfair to permittees in Wisconsin,” the lawsuit states.

Gillian Drummond, spokesperson for the state Attorney General’s Office, which generally represents state agencies in court, said the office has seen the lawsuit but has no comment.


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