Who Will Pay for PFAS Pollution?

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Democratic Gov. Tony Evers and Republican lawmakers continue to dig in their heels during a years-long tug-of-war over how regulators should hold property owners liable for contamination caused by “forever chemicals” known as PFAS.

[inarticled]They are pushing competing proposals to protect so-called innocent landowners — those who didn’t knowingly cause their PFAS pollution — from liability under Wisconsin’s decades-old environmental cleanup law.

Evers’ two-year budget proposal, introduced last week, exempts some owners of residential and agricultural land. The proposal would also fund testing and cleanups of affected properties.

His budget takes a narrower tack than the approach spearheaded by a Republican who has long sought to protect innocent landowners.

During the previous legislative session, Sen. Eric Wimberger of Oconto co-authored an innocent landowner bill that lawmakers passed along party lines before an Evers veto.

The governor accused Republicans of using farmers as “scapegoats” to constrain state authority. His staff warned that if Republicans present the same proposal this session, Evers might veto it again.

Wimberger says Evers’ staff has failed to respond to his requests for an outline of innocent landowner exemptions Evers would support. Wimberger is now circulating two draft bills co-authored with state Rep. Jeff Mursau, R-Crivitz, that contain provisions virtually identical to the vetoed legislation. Those include grants for municipalities and owners of PFAS-contaminated properties.

The proposals also would limit the Department of Natural Resources’ power to require property owners to pay for cleanups and extend liability exemptions to certain businesses and municipalities.

“The governor needlessly vetoed the plan over protections for innocent landowners,” Wimberger said in a statement. “Now, after delaying this relief for a year, he says he wants to protect innocent landowners. While it’s encouraging to see him change his mind, he is no champion for pollution victims.”

How does the state handle PFAS-contaminated farmland?

Wisconsin’s spills law requires reporting and cleanup by parties that pollute air, soil or water or if they discover contamination from a past owner. That is because, in part, allowing pollution to remain on the landscape could be more dangerous to human health than the initial spill.

The DNR has held parties liable for PFAS contamination they didn’t cause but also has exercised discretion by seeking remediation from past spillers instead of current property owners.

PFAS, short for per- and polyfluoroalkyl substances, are a family of more than 12,000 compounds commonly found in consumer products like food wrappers, nonstick pans and raincoats along with firefighting foam used to smother hot blazes. Some are toxic.

The chemicals pass through the waste stream and into sewage treatment plants, which commonly contract with farmers to accept processed sludge as fertilizer.

Testing is now unearthing PFAS on cropland from Maine to Texas. Several hot spots are located in Wisconsin too, among the more than 100 PFAS-contaminated case files the DNR currently monitors.

The agency maintains it has never, and has no plans to, enforce the spills law against a property owner who unknowingly received PFAS-contaminated fertilizer. But Republican lawmakers don’t trust those promises.

How do the budget and draft bill proposals compare?

Evers’ bill would exempt only residential and agricultural properties polluted with PFAS-contaminated sludge. Affected landowners would have to provide the DNR access to their property for cleanup and not worsen the contamination.

Evers’ innocent landowner exemption would sunset by 2036.

Meanwhile, the Republican draft bills would prevent the DNR from enforcing the spills law when the responsible party qualifies as an innocent landowner and allow the department to clean up its property at its own expense.

The first bill focuses on innocent landowner provisions, while the second, larger proposal adds grant programs without specifying appropriations. Wimberger explained introducing two bills would “ensure the victims of PFAS pollution get the debate they deserve” and prevent Democrats from “playing politics” with PFAS funding and policy.

Unlike Evers’ budget proposal, the draft bills don’t release $125 million in aid to PFAS-affected communities that has sat in a trust fund for 18 months.

The Legislature allocated the funds in the previous two-year budget, but its GOP-controlled finance committee hasn’t transferred the cash to the DNR.

Lawmakers in both parties have bristled over the languishing money, with Democrats contending the committee could transfer it without passing a new law. The nonpartisan Wisconsin Legislative Council says lawmakers would be on “relatively firm legal footing” if they did so.

Republicans, meanwhile, say transferring the dollars without limiting DNR enforcement powers would not effectively help impacted landowners. They say the DNR could treat a landowner’s request for state assistance as an invitation for punishment.

The previous, vetoed bill garnered support from all three Wisconsin local government associations, but environmental groups, the DNR and Evers said it shifted PFAS cleanup costs to taxpayers.

Environmental groups also feared Republicans on the finance committee would continue withholding the $125 million even if the legislation had advanced — protracting the stalemate while weakening the DNR.

Nor would risking “unintended consequences” of weakening the spills law be worth $125 million, which would scratch the surface of remediation costs, environmental critics said.

Expenses in Marinette County alone, which is coping with PFAS contamination linked to a firefighter training site owned by Johnson Controls International, already exceed that amount.

The Milwaukee Business Journal reported the company upped its reserves by $255 million to finance the cleanup. With the increase, the company has recorded charges of about $400 million since 2019.