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WMC sues DNR in effort to block cleanup requirements for PFAS, other contaminants
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ENVIRONMENT | WMC SUES DNR

WMC sues DNR in effort to block cleanup requirements for PFAS, other contaminants

Military firefighting foam

Years of training with firefighting foam — like that shown in this 2013 photo from a North Carolina military base — is the likely source PFAS contamination in Madison drinking water. The Wisconsin Department of Natural Resources is drafting rules about where and how fluorinated foam can be tested. 

Wisconsin’s largest industry lobby and an Oconomowoc dry cleaner are suing the Department of Natural Resources over the agency’s enforcement of environmental protection laws.

The suit, filed Tuesday in Waukesha County Circuit Court, seeks to block the 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.

Wisconsin Manufacturers and Commerce 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 rule-making process.

According to the complaint, Joanne Kantor and her late husband operated LRI for more than four decades before she decided to retire and sell the property in 2018.

Kantor informed the DNR that the site was likely contaminated with volatile organic compounds, or VOCs, a chemical used in dry cleaning. She hired a consultant to do an investigation and entered a voluntary remediation program.

But the complaint says the DNR would not approve a cleanup plan unless it also tested for PFAS. According to the complaint, Kantor has spent more than $235,000 and has been forced to keep the business going to cover the costs.

A statute known as the “spills 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.

“Defendants freely change what substances and concentrations of substances are considered a ‘hazardous substance’...without notice, and with no public input or legislative oversight,” the complaint states. “Through these changes, Defendants continually move the goal posts for the regulated community, prolonging cases, and preventing closure and redevelopment of properties.”

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

They are asking the court to block the agency from enforcing cleanup of any “emerging contaminants” including PFAS, a group of more than 4,000 substances that have been linked to cancer and other ailments.

DNR spokeswoman Sarah Hoye said Tuesday that the agency was still reviewing the complaint.

WMC has fought the DNR’s efforts to regulate PFAS through ongoing rule-making actions that would set standards for ground, surface and drinking water as well as limiting the use and disposal of firefighting foam that contains the fluorinated compounds.

The DNR is monitoring more than 40 PFAS contamination sites around the state, including one linked to a Marinette manufacturer of firefighting foam that could result in the state’s largest-ever environmental cleanup.

Several contaminated sites at the Madison airport have been linked to training areas used for decades by the Wisconsin Air National Guard and local fire departments. The DNR has ordered the city, county and National Guard to clean up the sites.

To commemorate the 10-year anniversary of the introduction of and historic protests over the legislation that would later become Act 10, the Cap Times is producing a series of stories and podcasts over the next month. Led by Cap Times’ K-12 education reporter Scott Girard and state politics reporter Briana Reilly, the series will run to mid-March and be available at captimes.com. The podcast discussions will be made available through Jessie Opoien’s Wedge Issues feed on most major podcasting platforms, and at captimes.com. In this episode, Professional Fire Fighters of Wisconsin president and former gubernatorial candidate Mahlon Mitchell speaks with Girard and Reilly about how the protests launched him into the spotlight and how Act 10 has changed Wisconsin politics.

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