A year and a half after Wisconsin lawmakers earmarked $125 million to clean up toxic “forever chemicals” known as PFAS, the funds have yet to flow to contaminated communities.

That’s due to a legal and philosophical debate over the limits of government power and the potentially harsh consequences of a decades-old environmental law.

Lawmakers continue to hash out the rules to guide who would receive the money and, more importantly, the legal risks for entities that request it.

The Legislature’s GOP-controlled finance committee won’t transfer the cash designated to address Wisconsin’s PFAS problem to the state Department of Natural Resources, so it continues to accumulate interest in a trust fund.

Democratic Gov. Tony Evers is now trying again — this time, embracing an idea penned by the Republican legislators with whom he sparred.

Evers’ plans, to be included in his upcoming budget proposal, include a cash infusion that expands the trust fund balance to $145 million, along with a provision contained in a GOP-authored PFAS bill that Evers vetoed last year.

That measure, introduced in 2023 by Sen. Eric Wimberger, R-Oconto, created grants for municipalities and owners of PFAS-contaminated properties — so-called “innocent landowners” — who didn’t cause their pollution.

It also truncated the DNR’s power to mandate cleanups.

But in his new budget proposal, Evers hopes to carve what appears to be a narrow liability exemption.

It would only apply to cropland that was polluted with PFAS when the owner unknowingly received contaminated fertilizer derived from sewage sludge. The Wisconsin Department of Natural Resources already has said it doesn’t enforce its cleanup policy under those circumstances.

What are PFAS?

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 special firefighting foam that can extinguish the hottest of blazes.

The intractable chemicals are turning up in drinking water around the country. In 2022, the EPA released health advisories, suggesting virtually no amount of several PFAS is safe for consumption.

The DNR is currently monitoring PFAS contamination at more than 100 sites.

What are state cleanup requirements?

State rules require reporting and environmental restoration by parties that pollute air, soil or water or discover past contamination on their property even if they aren’t directly responsible.

The DNR holds parties liable for PFAS contamination they didn’t cause but also exercises discretion to force past spillers to clean up instead of current property owners. The law also under certain circumstances exempts neighbors of contaminated properties from liability when a spill crosses property lines.

The department’s authority comes from Wisconsin’s spills law, passed in 1978. The Wisconsin Supreme Court affirmed that legislators intended to see pollution cleaned up regardless of who caused it. Failing to do so, it said, is just as, if not more, dangerous to human health than the initial spill.

The power of Wisconsin’s spills law has come under scrutiny in recent years as the scale of PFAS cleanup costs comes to light.

What do the Senate bill’s backers dislike about current policy?

Last session’s Senate bill would have prevented the DNR from enforcing provisions of the spills law when the responsible party qualifies as an innocent landowner and allows the department to clean up its property at the agency’s expense.

Wimberger said the measure would prevent the financial ruin of landowners who seek help from the department to address PFAS pollution or obtain clean water, without which their “application for a grant is a self-incriminating statement they have a polluted property and are an emitter.”

The threat of enforcement against the owner of a contaminated property might cause banks to think twice about refinancing a loan or even require a borrower to pay up in full, he said. Looming enforcement could increase the difficulty of selling a property.

At its most pernicious, the law might drive property owners to avoid testing for pollutants, risking their health for fear of the financial consequences.

Is this actually happening to landowners?

Wimberger has often portrayed innocent landowners as homeowners or farmers who unknowingly had PFAS-containing inputs spread atop their fields.

But last year, Midwest Environmental Advocates, which opposed the bill, reviewed each of the 130 PFAS spill cases the department reported online.

The firm determined only seven cases applied to individuals and none concerned farmers whose contamination originated from PFAS-contaminated fertilizer. Most concerned businesses like chemical and energy companies, defense contractors and salvage yards.

What impacts would the Republican proposal have?

Wimberger said department promises to exempt farmers don’t suffice, and throwing money at the problem is ineffective unless lawmakers enact enforcement guardrails.

Although the GOP bill would have protected individuals, liability exemptions also could extend to businesses like private landfills or paper mills that spread pulp and industrial sludge onto farm fields.

A list of more than 20 potential innocents compiled by one of the bill’s co-authors includes an electric transmission company whose transformer exploded in 2019 and the city of La Crosse, which the state currently holds responsible for PFAS contamination caused by the city’s fire department at its municipal airport. The bill’s backers say the property owners lacked a choice when firefighters sprayed the PFAS-containing foam.

Attorneys from the nonpartisan Legislative Council told lawmakers PFAS manufacturers and companies that test those chemicals likely wouldn’t qualify as innocent landowners.

However, the proposal would have prevented the DNR from enforcing cleanup laws against companies based on PFAS samples taken from company properties unless the department could show the contamination exceeded a government standard.

But Wisconsin lacks PFAS standards for groundwater, and GOP-backed bureaucratic hurdles, including a 30-month time limit on the rulemaking process, have encumbered efforts to create them.

The state’s second attempt will expire in March.

Evers recently jump-started a new effort to create PFAS groundwater rules and proposed an exemption from the usual holdups.

“Safe drinking water should not be a partisan issue, and yet it has been,” said Marinette City Council member and clean water advocate Doug Oitzinger, whose county is coping with PFAS contamination linked to a firefighter training site owned by Johnson Controls International. “We have failed utterly as a state to have environmental laws that protect us when it comes to PFAS.”

What does Evers say he’ll include in his upcoming budget?

Evers’ proposal would transfer money to the DNR for PFAS testing and removal at public drinking water systems, testing of private wells, grants to stem the release of PFAS into the environment, research into PFAS destruction methods and statewide PFAS testing. Evers also would allocate $7 million to innocent landowners for testing and cleanup.

He continues to call for the release of the PFAS trust fund money, the balance of which now stands at $127.1 million, including unspent funds from a state firefighting foam cleanup program.

“We cannot afford more years of inaction and obstruction,” Evers said in a statement. “I urge Republicans and Democrats to work together to do what’s best for our kids and Wisconsin’s families by investing in critical efforts to improve water quality.”

But potential spills law impacts remain unknown until the governor’s budget clarifies the scope of liability protections Evers hopes to create.

“I’ve been waiting for months for the governor to clarify his definition of an ‘innocent landowner,’ and he has refused to respond to my requests,” Wimberger said in a statement.

Evers’ staff have said the governor remains opposed to limiting department authority, and if Republicans present a proposal identical to last session’s bill, he might veto it again.

This article first appeared on Wisconsin Watch and is republished here under a Creative Commons license.

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