WMC Sues DNR Over Application of “Hazardous Substance” Regulation

On February 23, 2021, Wisconsin Manufacturers and Commerce (WMC)  filed a lawsuit in Waukesha County against the Wisconsin Department of Natural Resources.  Joining WMC in the lawsuit is a local dry-cleaning company who has repeatedly ran into DNR regulations that have made clean-up of their property expensive and difficult. 

The primary issue in the case is Wis. Stat. § 292.01(5), which defines “Hazardous Substance” as:

“any substance or combination of substances […] which may pose a substantial present or potential hazard to human health or the environment because of its quantity, concentration or physical, chemical or infectious characteristics.” 

According to the DNR, even common substances such as milk, beer, pickle juice or butter could meet this definition. DNR also has started to implement new, special procedures for what they are calling “emerging contaminants,” which includes PFAS. 

WMC’s primary argument is that the ever shifting use of “hazardous substances” as an excuse as well as new policy aimed at “emerging contaminants” are rules that were not properly promulgated under Wis. Stat. § 227.