PFAS bill was born in the hope of compromise. Then both sides dug in — and it died.

by Henry Redman, Wisconsin Examiner
May 21, 2024

A bill to create a number of programs aimed at spending $125 million set aside for PFAS cleanup across Wisconsin has died after a Republican effort to override Gov. Tony Evers’ veto failed to receive a vote in the Assembly last week. 

The legislation, authored by Green Bay-area Republican Sens. Robert Cowles and Eric Wimberger, was introduced with optimism from both environmental and business groups that a compromise could be reached and the money, included in the state budget passed last year, could get out the door to assist with cleaning up the harmful chemicals and improving the state’s research and testing capabilities. 

At the time of its introduction, environmental groups worried that the bill included language that would weaken the state’s spills law — the mechanism that gives the state Department of Natural Resources (DNR) the authority to hold polluters accountable — while business groups worried that it might be too punitive to industry. But in the first hearings on the bill, both sides stated they believed a middle ground could be found. 

After a year of debate, the bill has failed as Evers calls for the Legislature’s Joint Finance Committee to release the $125 million without the attached bill. Republicans call this a “slush fund” and object to giving the DNR so much power. Figures on both sides remain frustrated that the process ended in the current stalemate. 

For years, lawmakers have been working to address PFAS contamination, which has affected large communities including Madison and Wausau as well as thousands of individual homeowners who get their water from private wells such as in the town of Stella outside of Rhinelander, where the groundwater is contaminated by the “forever chemicals.” During that time, a number of legislative efforts have failed.

PFAS are a family of man-made chemical compounds that do not break down in the environment. They’ve been used in household goods such as nonstick pans as well as certain kinds of firefighting foam and fast food wrappers. PFAS have been found to cause long term health defects including cancer. 

Loophole?

Since the final version of the bill was passed last fall, Democrats and environmental groups have vehemently opposed the legislation, claiming its structure creates a loophole for polluting industries to avoid being held responsible while making taxpayers foot the bill for cleaning up that pollution. 

The section of the bill that opponents object to is its innocent landowner program, which Republicans say is designed to cover the costs for people who have PFAS contamination on their property through no fault of their own. 

But the way the bill is written, according to Midwest Environmental Advocates Executive Director Tony Wilkin Gibart, allows for polluters to be defined as innocent landowners. 

The bill includes a provision that states the DNR “may not commence any enforcement action against any person that meets the eligibility criteria for an innocent landowner grant.” The bill then makes any “person that spread biosolids or wastewater residuals contaminated by PFAS in compliance with any applicable license or permit” eligible for the grant. 

Corporations such as paper companies often have DNR permits allowing  them to spread the waste they produce, also known as biosolids, on farm fields. 

“A person also includes a corporate person, it doesn’t just mean an individual, and we know that paper mills and other industrial facilities spread PFAS containing biosolids on farm fields, and that is most likely the  source of contamination in the town of Stella,” Wilkin Gibart tells the Examiner. “This would mean that those entities are innocent landowners under the terms of the exemption, that they’re eligible for this grant program, and the DNR could not enforce the spills law against the entities that profited from PFAS that had the ability to know that it was harmful and spread it on farm fields regardless.” 

Republicans disagree with this reading of the bill. Zachary Stollfus, Wimberger’s chief of staff, says Democrats are “intentionally trying to confuse people” with their claims of what the bill would do. Stollfus says it generally isn’t the corporate entity itself doing the spreading, but a third-party contractor — who would be held responsible. 

“Paper mills are not actually spreading this, biosolids are permitted by the state, then spread by certified spreaders, who haul human waste and paper waste and spread it on farm fields,” he says. “It’s not a corporation or paper mill being let off the hook.”

Stollfus adds that numerous amendments were made to the bill after hours of discussions with the DNR and conservation groups such as MEA.

During the legislative debate, Wimberger pointed to memos from the state Legislative Council that indicate the bill would not be applied in the way Wilkin Gibart alleges. 

“You asked whether a company or other entity that manufactures PFAS would be likely to fall within any of the enumerated categories above,” one memo states. “The short answer is no. In general, the entities most likely to fall within the eligibility categories listed above include agricultural landowners, wastewater treatment facilities, solid waste facilities, municipal governments, and owners of property near to property on which a discharge occurred. Manufacturers of PFAS are unlikely to fall within any of those categories.” 

But Wilkin Gibart disagrees with the memos on a number of points, First, Wilkin Gibart sees the possibility that a corporate polluter could argue that it owns or leases one piece of property that qualifies under the innocent landowner program and therefore is exempt from all DNR enforcement actions under the spills law. One of the memos states the bill should be interpreted as the exemption applying to only one property, but Wilkin Gibart says even though a judge is unlikely to grant a broader exemption, simply giving the opening for the argument could delay enforcement and cleanup for a long time. 

“Just the ability to make the argument can allow a PFAS polluter to delay responsibility by years,” he says. 

The bill also includes a provision that states for people not eligible for the innocent landowner grants, the department “may not commence any enforcement action based on the results of PFAS testing” unless the testing shows the PFAS levels exceed a state or federal standard. Wilkin Gibart also says he doesn’t believe the memos deal with this broader part of the bill that restrict’s DNR authority even outside of the innocent landowner program. 

“The questions were asked to perhaps refute specific objections, but not all of them,” he said, contending that the memos fall short of addressing the issue. “I think there would be no way to say that the provision doesn’t restrict the department’s enforcement authority against persons who are not innocent landowners.”

But Stollfus questions the political logic of the allegation. Wimberger’s district includes Peshtigo and Marinette — parts of the state that have been heavily affected by PFAS pollution from giant corporations. Why, Stollfus asks, would a state lawmaker write a bill that would directly prevent his own constituents from accessing relief? 

“Sen. Wimberger represents an area where giant multinational corporations have ruined the groundwater and ruined people’s lives,” Stollfus says. “The allegation is that somehow politicians, it would be a recipe for success, to let these corporations off the hook.”

Conservation groups, however, point to the close ties between Republican lawmakers and Wisconsin Manufacturers & Commerce (WMC), the state’s largest business lobby. WMC is currently fighting a lawsuit to prevent the DNR from using the spills law against PFAS polluters. 

Additionally, Senate Republicans acted to keep an appointee of former Republican Gov. Scott Walker on the state’s Natural Resources Board, which sets policy for the DNR. That appointee, while holding onto his seat for more than a year after his term expired, helped prevent the creation of a standard that would limit the amount of PFAS that is allowed in groundwater. 

“The carve out for polluters would theoretically not apply if the pollution exceeds a promulgated standard under state or federal law,” Wilkin Gibart says. “However, we don’t have those standards under state or federal law currently, and we don’t know when we will have those standards.”

Groundwater contamination is the top concern of Wisconsin environmental advocates when it comes to PFAS, he adds. 

“The federal government does not set standards for groundwater. The state does,” Wilkin Gibart says. “The reason that we don’t have a promulgated standard under state law is because Senate Republicans stood in the way of that standard.” 

PFAS-contaminated sites 

During the floor debate last week when Senate Republicans voted to override Evers’ veto, Wimberger referred to  several cases in which he argued the innocent landowner program was needed to prevent the DNR from forcing people to pay for contamination they didn’t cause or contamination that happened because the DNR approved the permit. 

“At apartments in Ashwaubenon, the DNR discovered PFAS in the ground first put there in 1952,” Wimberger said in a statement. “Apartment owners who never even thought of checking for PFAS prior to purchasing the land now find themselves on notice from the DNR they are on the hook. A homeowner in Dodgeville was given notice in 2021 that her property emitted PFAS, likely due to foam extinguishing a fire. A man in Chilton was noticed in 2022 that his property emitted PFAS from an unknown source, yet he’s on the hook for cleanup. There are many more, and the notices will likely be in the hundreds of thousands in the coming years.” 

At the Ashwaubenon apartments, DNR records show, a paper mill now owned by Georgia Pacific had used the property to dump industrial waste as early as 1952. Since 2015, the DNR has been working on cleaning up the property for the contamination of PCBs, a different harmful chemical. During that cleanup effort, for which Georgia Pacific is being held responsible, PFAS were found. 

Wimberger’s complaint is that if Georgia Pacific stopped complying or ran into financial problems and couldn’t pay for the cleanup, the apartment owners would be on the hook. 

Similarly, in the Chilton case, Newell Brands is being held responsible for contamination that took place when cookware was made on the property. Right now, Newell is the responsible party, yet the current owner could be held responsible if Newell wasn’t, Wimberger argues. 

Wilkin Gibart says he doesn’t see how these examples show the DNR will enforce the spills law against small property owners. 

“That situation doesn’t support the idea that DNR is, you know, going out and enforcing the spills law against farmers,” he says. 

Wilkin Gibart points to a report by MEA that found out of more than 100 PFAS cases, the agency rarely took  enforcement actions against individual property owners and never against farmers who spread biosolids on their fields. 

“The data suggest that DNR is appropriately exercising its enforcement discretion under the Spills Law,” the report states. “For example, DNR is not enforcing the Spills Law against farmers or farming operations that accepted biosolids contaminated with PFAS for landspreading on their fields, which has been pointed to as a potentially inappropriate application of the law. These findings undercut calls by legislators and other industry groups to limit DNR’s authority to address PFAS under the Spills Law, particularly when such calls to limit DNR’s authority have been overbroad and the Spills Law already contains multiple relevant exemptions.” 

Wimberger’s third example, the fire in Dodgeville, involves a case in which the attorney for the property owner says “nobody will agree to do anything because they’re all afraid they’ll get bit in the tuchus.” 

The attorney, John Kassner, is representing the homeowner after a brush fire on her property was put out with PFAS-containing firefighting foam even though the foam is supposed to be used for chemical fires. 

The Dodgeville Fire Department reported its use of the foam to the DNR and the property owner was named the responsible party because it occurred on her land. The owner’s homeowners insurance won’t pay for the cleanup, but the fire department is also refusing to clean it up. 

Meanwhile the DNR isn’t forcing the owner into any action while a court case on the issue is pending. 

Kassner tells the Examiner that if the owner collects the foam and puts it in barrels, her property will become an unlicensed toxic waste facility, but they’re having trouble finding a site that will take it. 

“We can’t get rid of the stuff, can’t collect the stuff and put it on site because we’re not licensed to have hazardous material on this old farm, and we can’t afford the cost to clean up in any event,” Kassner says. “We’re in court, everybody keeps waiting for the Legislature and Governor to agree on something, because it may or may not solve the problem.” 

The problem, Wilkin Gibart says, is even though the fire is unfortunate, the owner doesn’t fit any of the bill’s definitions of an innocent landowner anyway. 

Legal arguments and legislative strategy

Wimberger has regularly argued that the law should not be set up to retroactively punish people for something the state said was allowed at the time. 

“Evers and activists refuse to do what is right unless it ‘holds polluters accountable,’” Wimberger said in his statement after the bill passed last November. “But a law passed today to make something that happened yesterday illegal, is Ex Post Facto. To declare someone guilty through legislation is called a Bill of Attainder. Both are unconstitutional. Evers seemingly demands the unconstitutional in order to act on PFAS.”

Yet for Wilkin Gibart, this focus on legal theory and issues such as who technically qualifies as an emitter of pollution under state law shows Wimberger is less focused on finding solutions. 

“SB 312 has resulted in a dead end because Sen. Wimberger has appeared to be more concerned with theoretical legal issues and with hypothetical landowners than he is in helping Wisconsinites who have PFAS their water,” Wilkin Gibart says. 

The MEA lawyer also complains about the legislative structure the debate has taken place in. The money was passed in the budget, while the actual programs were introduced separately — which he said was only done to avoid Evers’ line-item veto pen. 

But Stollfus says that’s a complaint that could apply to most legislation — especially in a state with divided government and the ability of the governor to line-item veto budget appropriations.

“It’s common practice in states where the governor has a line-item veto pen, money is unattached from bills,” he says. “If that’s their complaint, there’s a problem with every bill. They’re grabbing at straws to find flaws.”

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