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Wednesday, April 14th, 2021
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MADISON — Joanne Kantor is ready to retire.

But when the Oconomowoc owner of Leather Rich, Inc., a specialty dry-cleaning business she and her late husband owned and operated for decades, the state Department of Natural Resources effectively stopped Kantor in her tracks.

Nearly three years ago, the company voluntarily began remediation of the property under the DNR’s Voluntary Party Liability Exemption (VPLE) program, aimed at environmental cleanup. The elderly business owner took the step to prepare for the sale and her retirement.

The elderly Kantor believed she was doing the right thing by entering the government program, taking responsibility for hazardous substance contamination attributed to the dry cleaner.

But DNR regulators have “unilaterally and unlawfully” changed the rules for the company — as well as all other property owners in Wisconsin, according to a lawsuit filed this week by Leather Rich, Inc. and Wisconsin Manufacturers & Commerce.

DNR’s power grab

The complaint, filed in Waukesha County Circuit Court, alleges the DNR failed to follow state law by enforcing standards it refused to promulgate, changing policies and “completely reinterpreting statutes and rules” of the agency’s VPLE and Remediation and Redevelopment programs.

In short, Gov. Tony Evers’ environmentally extreme agency is creating all kinds of regulatory powers it doesn’t have, the lawsuit asserts.

“The executive branch and agencies only have those powers given to them by the people. The DNR itself doesn’t exist without the statutes willing it into existence,” said Lucas Vebber, executive director of the WMC Litigation Center. And, the lawsuit argues, DNR does not have the authority to regulate so-called “emerging contaminants” because the language doesn’t even exist in state law.

Wisconsin Act 21, signed by former Gov. Scott Walker in his first term, finally checked the DNR’s “narrative authority,” basically the belief the agency can do what it wants in the name of environmental protection. Act 21 demands DNR follow the law.

But the Evers administration, particularly the climate change warriors at the DNR, haven’t been really good at following laws it doesn’t like.

“We’re not saying the DNR doesn’t have the authority to regulate. We’re saying that they have to go through the rule-making process and give notice to the public,” Vebber said. “It all must be done in the light of day, not done in a back room at the agency.”

Everything is ‘hazardous’

State law requires property owners who are aware of a discharge of a hazardous substance on their property report it to the DNR and go through the Remediation and Redevelopment program. As Leather Rich Inc. did, property owners may voluntarily enter into the Voluntary Party Liability Exemption program. It’s a more extensive and costly clean-up effort to remediate to DNR’s satisfaction, but in return property owners receive a “Certificate of Completion.” It’s more than state bureaucratic recognition — it grants them and future owners of the property liability protection.

But DNR, without going through the rule-making process required under law, has changed the terms of the deal, according to the lawsuit. The agency never promulgated a list of substances that qualify as “hazardous” under state law. Instead, it left it up to property owners to know. And DNR now makes its determinations on a case-by-case basis. Under the agency’s broad concepts of “hazardous,” pickle juice, beer, cheese, even milk — the drink of America’s Dairyland — could be deemed harmful.

The contaminants du jour at the DNR are PFAS and the family of manmade chemicals. It’s more like a war on PFAS, and businesses, governments and property owners have been caught in the crosshairs.

DNR has created a catch-all category of substances they call “emerging contaminants” under the “hazardous substances” umbrella. But PFAS in particular are not currently regulated by state and federal government. Using its shifting definitions, the DNR fundamentally altered Wisconsin’s environmental clean-up program, greatly restricting the benefits and drastically impacting businesses like Leather Rich. And the agency did it all without any public input or legislative oversight, contrary to law, the lawsuit states.

And now Joanne Kantor can’t sell her business, with the DNR’s actions “indefinitely delaying her retirement,” the complaint states.

The lawsuit asks the court to “declare these unlawfully adopted policies as invalid, which would force the DNR to follow state law and go through the statutory rulemaking process,” the WMC Litigation Center stated in a press release. “This would provide the business community, developers and local governments with certainty that cleanups and property redevelopments will be done according to the letter of the law, instead of the whim of DNR staff.”

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