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Enforcement must meet created standards in chemical battle

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(The Center Square) – Wisconsin’s attorney general is promising to appeal a decision from the state’s appellate court that sidelines Gov. Tony Evers’ efforts to go after chemical polluters.

The three judge panel on Wednesday ruled that the Department of Natural Resources cannot use the state’s Spills Law to order the clean-up of PFAS pollution. Justices said that law doesn’t specify just which PFAS chemicals are considered dangerous or harmful.

PFAS, an acronym for per- and polyfluoroalkyl substances, are widely used, long lasting chemicals, components of which break down very slowly over time. Studies vary on their harmful effects; more is known about their impact on animals than on humans. PFAS, the Environmental Protection Agency says, “are found in water, air, fish, and soil at locations across the nation” and throughout the world.

“Safe and clean drinking water shouldn’t be a luxury,” Attorney General Josh Kaul said. “It should be accessible to every Wisconsinite. This decision would dramatically weaken our ability to protect Wisconsinites from PFAS and other emerging contaminants.”

The decision stems from a 2022 ruling in Waukesha County that said Wisconsin lawmakers have not set PFAS standards, nor have they spelled-out just which chemicals are banned or dangerous.

Wisconsin Manufacturers and Commerce, the state’s largest business group, on Wednesday said the appellate court ruling is a win for the people of Wisconsin, and a loss for the overzealous regulatory power of state government.

“Today’s decision by the Court of Appeals protects the public’s right to know what the law requires,” Scott Rosenow said in a statement. He is executive director of litigation for the organization. “If the DNR expects every Wisconsinite to comply with the Spills Law, the DNR needs to explain in an official rule which PFAS it thinks are hazardous.”

Environmental groups also responded.

Tom Kilian, of Citizens for a Clean Wausau, said, “This case could have implications for virtually every community in the state, not just those facing PFAS contamination. Here in Wausau, the Spills Law has enabled us to address decades of industrial contamination that has disproportionately impacted residents of Wausau’s diverse, working class neighborhoods. Their health depends on the state’s continued ability to remediate that contamination.”

Wisconsin’s Spills Law requires people to notify the Department of Natural Resources of any discharge of a hazardous substance and requires any “responsible party” to pay to clean it up. The Spills Law applies to substances that are listed as hazardous under federal law. Wisconsin Manufacturers and Commerce says federal law does not include PFAS chemicals.

The appellate court judges said Wisconsin lawmakers, or Congress, will have to set those standards if the state Department of Natural Resources wants to move forward with PFAS contamination cleanups.

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