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Judge blocks health, environmental groups from defending state in WMC pollution case
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POLLUTION CONTROL | DNR SUED BY BUSINESS INTERESTS

Judge blocks health, environmental groups from defending state in WMC pollution case

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A Wisconsin judge says environmental and public health advocates cannot participate in a court challenge to the state’s pollution control authority.

The groups say the lawsuit brought by the state’s largest business lobby could undermine basic pollution control laws and return Wisconsin to the “dark ages” of environmental protection.

Waukesha County Circuit Court Judge Michael Bohren on Friday denied a request from Midwest Environmental Advocates to allow five groups and individuals to intervene in the case.

The suit, brought by Wisconsin Manufacturers and Commerce and an Oconomowoc dry cleaner, seeks to block the Department of Natural Resources from requiring cleanup of unregulated “emerging contaminants,” such as toxic compounds known as PFAS, that have polluted groundwater in sites across the state, including Madison, Marinette and La Crosse.

WMC and Leather Rich Inc., or LRI, claim the DNR is subverting the law in the way it administers two environmental cleanup programs by changing policies and enforcing cleanup standards for substances without going through a lengthy rulemaking process.

Midwest Environmental Advocates executive director Tony Wilkin Gibart said the case is about whether the DNR can continue to protect public health and the environment as it has for more than 40 years under current law.

WMC’s attorney Lucas Vebber argued the state is capable of defending itself and that the health and environmental groups misunderstand the case, which does not seek to strike down the law, only how the DNR enforces it.

“This case is about procedure,” Vebber said.

Waukesha County Circuit Judge Michael Bohren

Bohren

Bohren agreed, saying the state is aggressively defending its position and can adequately represent the other groups’ interests.

He said it’s unclear whether changes in the DNR’s enforcement policy would directly affect their rights, but he did agree to allow the groups to file “friend of the court” briefs in the case.

State law gives the DNR authority to regulate the discharge of hazardous substances, which the law defines as anything “that can cause harm to human health and safety, or the environment, because of where it is spilled, the amount spilled, its toxicity or its concentration.”

There is no definitive list of hazardous substances, which can include toxic chemicals as well manure, corn, or even milk and beer that in high concentrations can foul public waters and kill aquatic life.

Procedural issue

WMC argues the DNR should be required to go through the rulemaking process to establish a list of what it considers hazardous substances and at what quantities or concentrations.

But that process takes years and is subject to political interference, which supporters of the law say would prevent the DNR from stopping ongoing pollution, requiring cleanup or even forcing polluters to provide bottled water when wells are contaminated.

“It’s a game WMC is playing,” said Doug Oitzinger, a city council member from Marinette who sought to intervene in the case. “The only thing we have to protect us in Marinette and Peshtigo right now is the spills law.”

Dr. Beth Neary, a pediatrician and co-president of the Wisconsin Environmental Health Network, said regulations routinely lag research, which has shown PFAS are a health threat, particularly for children and infants.

Without the ability to enforce the statute, she said, “Wisconsin would be forced back into the dark ages of environmental protection.”

Wastewater tests

In a separate case, WMC has sought to block the DNR from testing wastewater from industrial and municipal treatment plants for PFAS.

The DNR is in the process of developing water standards for two PFAS compounds and recently began work on standards for 16 more based on recommendations from the state Department of Health Services. As part of the rulemaking process, those standards will require approval from the Republican-led Legislature.

“Promulgating an administrative rule is not a mere formality. The rulemaking process is arduous, and there is no guarantee of success,” the environmental groups argued in their petition. “As such, the ramifications of the Court’s decision in this case are quite consequential. There may be no going back.”

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