by Henry Redman, Wisconsin Examiner
October 14, 2023

Republicans on the Wisconsin Senate Committee on Natural Resources and Energy voted to advance a new version of a bill addressing PFAS contamination across the state despite the objections of Democrats and environmental groups worried about its effect on the state Department of Natural Resource’s ability to hold polluters accountable.

The committee vote was held Wednesday nearly five months after the bill was first introduced. At the time of the bill’s introduction in May and at public hearings in June, the environmental groups and the state’s largest business lobby stated they would hold off on judging the bill until it was in its final negotiated form. The environmental groups objected to the original text’s provisions limiting DNR authority while business groups worried about giving the DNR too much authority to force businesses into testing and cleanup of contamination.

On Tuesday, Republicans introduced an amendment to the bill. At the meeting Wednesday, the committee voted 3-2 along party lines to adopt the amendment and to advance the bill to the Senate floor.

The bill, SB-312, authored by Sens. Robert Cowles (R-Green Bay) and Eric Wimberger (R-Green Bay), includes the creation of a number of grant programs aimed at assisting municipal treatment systems, private well owners and landowners with addressing pollution from the family of chemical compounds known as PFAS, which are known as “forever chemicals” because they do not break down easily in the environment. The legislation is meant to be the vehicle through which $125 million in funding set aside for PFAS cleanup in the state budget will be spent.

For decades, PFAS have been used in a variety of products, including certain kinds of firefighting foam, fast food wrappers and household goods such as nonstick pans. PFAS contamination has been found to cause long-term health problems, including cancer.

PFAS pollution has been found in water supplies across the state in municipal systems as large as Madison and Wausau and in the private wells of the residents of tiny communities such as the town of Campbell on French Island outside of La Crosse and the town of Stella, east of Rhinelander. Since the bill’s introduction earlier this year, testing in Stella has found some of the highest levels of PFAS contamination in the country.

At a news conference and at the meeting Wednesday, Wimberger said he believes the final product of the bill represents a good compromise between Republicans, the interested parties and the DNR and that continued opposition is about people’s “compulsion for power.”

“I kind of get chafed at the groups that think that this is some sort of abrogation of DNR authority because it’s not,” Wimberger said during the meeting. “That person who owns a farm or a piece of land is still going to be subject to remediation orders if they don’t want to allow the DNR to do the things that need to get done. So the task is completed, the goal is accomplished. And to say that it limits DNR authority and therefore it’s bad is probably just a compulsion for power. Because the goal is not to punish people. The goal is to solve the problem and the stick that government wields should only be used when the solution can’t be provided by the scenario that’s envisioned.”

Since the bill’s introduction, environmental advocates have worried that if enacted, it would undercut the state’s spills law, which allows the DNR to hold entities responsible for environmental pollution by paying for the cleanup and remediation.

Rob Lee, a staff attorney for Midwest Environmental Advocates, says the limits the amended bill place on the DNR go further than the original. According to Lee, the bill as amended takes several steps that allow polluters to avoid responsibility by connecting two provisions.

First, the bill creates an “innocent landowner grant program,” which under the original bill, would provide up to $250,000 grants to property owners with PFAS contamination who aren’t responsible for the pollution. As amended, the bill expands the program to businesses that spread PFAS contaminated biosolids on their land; fire departments that used PFAS contaminated firefighting foam and solid waste disposal facilities that accepted PFAS.

The amended bill prohibits the DNR from taking enforcement action against entities eligible for the innocent landowner grant. It also requires the DNR to get permission from a landowner before testing for PFAS on their property and start the cleanup process. Then because that permission was given, the bill prohibits the agency from holding that landowner responsible.

Lee says it’s a “moral” matter that the costs of pollution should be paid by the entity that caused it — even if when the pollution occurred it was allowed by the government — because the business presumably earned a profit from the pollution and that cost shouldn’t be passed on to the taxpayers.

In Stella, the DNR has yet to identify a responsible party for the high levels of contamination, yet a lawsuit filed by residents has alleged a local paper mill is the source because it spread biosolids from its manufacturing byproducts on nearby fields. According to Lee, the paper mill would be able to avoid responsibility by simply letting the DNR onto its property to start testing for and cleaning up the PFAS.

On French Island, the city of La Crosse has been identified as the responsible party for PFAS contamination there because of fire training done at the municipal airport. Under the amended bill, Lee says the city becomes an innocent landowner.

“If DNR tried to identify the paper mill that’s identified in the lawsuit as a responsible party, they would likely be prevented from enforcing the law against them if the paper mill grants them permission to remediate the contamination at DNR expense,” he says. “Think of French Island, the city of La Crosse, the city has been identified as a responsible party, because they’d conducted firefighting training at the airport. They become an innocent landowner in that context. They trigger that provision by granting DNR permission, which they have every incentive to do, they become an innocent landowner.”

Ultimately, Lee said the $125 million may seem like a lot of money, but within the scope of the state’s PFAS problem it would be a drop in the bucket, so trading the teeth of the spills law isn’t worth it.

In a statement released after the bill was advanced, Wimberger and Cowles said that negotiations were held in good faith with the DNR, and that Gov. Tony Evers needs to recognize he won’t get everything he wants in a divided government.

“Each discussion has been in good faith, and most discussions have resulted in concessions to the DNR. For every ten items they requested, it’s our belief roughly eight out of ten were addressed,” the senators stated. “If roughly 80% compromise towards the Evers’ Administration is not enough, then let’s get real and recognize that Evers, [DNR Secretary Adam] Payne, and their leadership teams only want their way or the highway. And their way will bring enforcement orders against local governments, farmers, and other parties doing the best they can. Instead of making progress on PFAS, we’ll scare away our partners and force hundreds of millions in costs on communities and landowners for contamination they didn’t cause and can’t afford. We’re in split government. It’s time Tony Evers recognizes that.”

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