WMC filed this lawsuit in February 2021 to stop the Wisconsin Department of Natural Resources (DNR) from regulating what it calls “emerging contaminants” as hazardous substances under Wisconsin’s Spills Law without going through the formal rulemaking process. According to the DNR, even common products such as milk, beer, pickle juice and butter can be hazardous substances subject to regulation under the Spills Law. Several years ago, DNR announced on its website that it now thinks “emerging contaminants” are hazardous substances. DNR did not explain what it meant by “emerging contaminants” other than saying that this term includes PFAS. DNR also did not explain which PFAS it thinks are hazardous, even though the term “PFAS” is a broad category that (as DNR recognizes) includes around 9,000 substances.
The Waukesha County Circuit Court and Wisconsin Court of Appeals both concluded that DNR’s regulation of “emerging contaminants” was an unlawful, unpromulgated rule. In other words, DNR’s decision to begin regulating these substances amounted to a rule that was not properly promulgated under Wis. Stat. ch 227, our state’s Administrative Procedures Act.
