MADISON, Wis. (CN) - The Wisconsin Supreme Court on Tuesday ruled that the state Department of Resources need not promulgate rules identifying hazardous materials before enforcing environmental cleanup law.  

In 2021, a family-owned dry cleaning business and an influential business association sued the Wisconsin Department of Natural Resources after the agency told the company that it would not only have to clean up hazardous contaminants found on the property, it also must look for PFAS - or polyfluoroalkyl substances, so-called forever chemicals that don't easily break down in the environment.  

Leather Rich Inc. claimed, and an appellate court affirmed, that the environmental department is required by law to advertise newly discovered hazardous contaminants before it may enforce the Spill Law, which makes property owners strictly liable for harmful environmental contaminants.

The state Supreme Court heard oral arguments in January on the question of whether the department can enforce cleanup laws of contaminants that have not yet been formally identified as hazardous through the rulemaking process, which takes months.

On Tuesday, the Wisconsin Supreme Court found that the environmental agency can enforce cleanup law on materials not pre-identified to be hazardous under the statute, giving it broad discretion over communication about and enforcement of the Spill Law.

"The Supreme Court's decision today means that polluters will not have free rein to discharge harmful contaminants like PFAS into our land, water, and air without reporting it or taking responsibility for helping clean up those contaminants," Governor Tony Evers said in a statement. "It's a great day for Wisconsinites and the work to protect and preserve our state's valuable natural resources for future generations."

Under the Spill Law, a property owner has the right to take the issue to court if they believe they should not be liable for a spill or if the material spilled is not actually hazardous. In these enforcement action cases, the department points to the statute and the decision ultimately lies with the presiding judge.

The controlling law is intentionally broad, the majority wrote, so to give the environmental department the leeway it might need to remain up to date with developments in hazardous chemicals that may have once been undetected but have become harmful, much like PFAS.

Justice Janet Protasiewicz supported this in the majority opinion with the statutory definition of "hazardous substance," which references any substance that harms the Earth or people. This law is unambiguous, Protasiewicz said, and does not need to list every possible hazardous substance to be enforceable.

The dry cleaner argued before the court in January that citizens must know in advance which substances are hazardous so that they can follow the law. Otherwise, they might not know when to self-report or what the consequences might be.

Though the justices have historically been sympathetic to creating workable law for regular Wisconsinites to follow, the majority prioritized speedy spill remediation in Tuesday's opinion.

Assistant Attorney General Colin Roth made a similar case at oral arguments, taking the position that the Legislature wanted fast, efficient cleanup.

"This happens all the time," Roth said in January. "The Legislature writes a broad statute with enough weight to be enforceable, and the agency must interpret that. If agencies were required to promulgate a rule every time new facts come to light that change how the statute should be applied, it would be too late."

The Spill Law required the environmental agency to promulgate rules on various subjects, but the requirement is conspicuously absent from the hazardous material section at question in this case, Protasiewicz said.

In 2018, the dry cleaner became aware that its property was potentially contaminated with certain hazardous compounds and notified the department. After an investigation, the family-owned company applied to enter a cleanup program that would completely or partially exempt them from liability for the costs.  

The environmental department said it would only approve the dry cleaner's application if it also tested for PFAS, which, at the time, were only considered to be "emerging contaminants."

The dissent, written by right-leaning Justice Rebecca Bradley and joined by Justice Annette Ziegler, focused on the dry cleaner's argument that people need to know the law in order to follow it.

"The majority leaves the people at the mercy of unelected bureaucrats empowered not only to enforce the rules, but to make them," Bradley said. "In doing so, the majority violates three first principles fundamental to preserving the rule of law - and liberty."

As evidence, Bradley points to Joanne Kantor, owner of a dry cleaning business that she built with her husband 40 years ago. The government is preventing Kantor from selling her business, Bradley says, because of PFAS rules that have yet to be written.  

Neither Kantor nor her attorneys could be reached for comment at the time of filing.

Source: Courthouse News Service