Wisconsin Court Strikes Blow to Farms

LINCOLN, Neb. (DTN) -- The Wisconsin Supreme Court ruled 5-2 on Tuesday that the state has broad authority to enforce the state's Spills Law without drafting formal rules to identify specific substances including so-called "forever chemicals" known as per- and polyfluoroalkyl substances, or PFAS.

The court ruled the Wisconsin Department of Natural Resources can designate substances as hazardous and enforce reporting and remediation requirements, which could have broad implications for farmers in Wisconsin.

The state's high court overturned previous lower-court rulings against the state in Wisconsin Manufacturers and Commerce Inc. v Wisconsin Natural Resources Board.

"Wisconsin's Spills Law safeguards human health and the environment in real time by directly regulating parties responsible for a hazardous substance discharge," the court said.

"Responsible parties must, on their own initiative, immediately report a discharge to the DNR, restore the environment to extent practicable, and minimize the harmful effects on our air, lands, and waters. Neither (state laws) required the DNR to promulgate rules before issuing the communications about the Spills Law that WMC and Leather Rich challenge. Moreover, as (the law) requires, the DNR has explicit authority to enforce a threshold for reporting the discharge of hazardous substances."

The law already requires farms to report and clean up spills of pesticides, fertilizers and manure that meet certain thresholds.

As a result of the court's ruling, the state can now consider PFAS and other substances on farms as hazardous substances without identifying specific compounds or concentration thresholds.

Farmers who discover PFAS contamination on their property may be required to immediately report it to the state's DNR and to undertake remediation efforts as it relates to biosolids or sewage sludge as fertilizer, the use of certain pesticides containing PFAS, contaminated irrigation water and for previous industrial uses of land.

The court's ruling could lead farmers to face increasing costs for the testing, reporting and remediation of PFAS, which is viewed by the Wisconsin DNR as an "emerging" contaminant.

The state's DNR will have the power to update guidance on what constitutes a hazardous substance.

Emerging contaminants include contaminants that were previously unknown, undetectable or were generally considered to be benign.

"The DNR also says that during its nearly 50 years administering the Spills Law, it has responded to about 1,000 spills each year, without promulgating rules listing substances, quantities and concentrations that it deems 'hazardous substances' under (the law)," the court said in its ruling.

"And in that time, the court twice required property owners to remediate hazardous substance discharges despite the lack of DNR rules declaring the contaminants at issue 'hazardous substances.'"

Scott Manley, the executive vice president of government relations for Wisconsin Manufacturers and Commerce Inc., said in a statement on Tuesday the state's approach was unworkable.

"The DNR refuses to tell the regulated community which substances must be reported under the Spills Law yet threatens severe penalties for getting it wrong," he said in a statement.

"Businesses and homeowners are left to guess what's hazardous and if they're wrong, they face crushing fines and endless, costly litigation. This ruling blesses a regulatory approach that is fundamentally unfair, unworkable and impossible to comply with."

Writing the dissenting opinion, Justice Rebecca Grassl Bradley said the decision raises constitutional concerns.

"A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required," Bradley wrote.

"The people consented to being governed under the rule of law, not bureaucratic decree. The 'freedom of men under government'...'is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it ... and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man.'"

Read more on DTN:

"How PFAS Ruined Some Small Texas Farms," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

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