Henry Redman, Wisconsin Examiner
October 17, 2023
Clean water advocates in some of Wisconsin’s communities hit hardest by PFAS contamination say Republican-authored legislation to aid in the cleanup of the harmful “forever chemicals” contains too many poison pills to support.
The legislation was initially introduced in May. After months of inaction, last week the bill’s authors, Green Bay Republican Sens. Robert Cowles and Eric Wimberger, introduced a major amendment to the bill and forwarded it out of committee a day later.
The bill is meant to be the vehicle through which $125 million in funding set aside in the state budget for PFAS cleanup will be spent — creating several grant programs aimed at covering costs to municipalities and landowners dealing with PFAS pollution. Since the bill’s introduction, Democrats and conservation groups have raised concerns that certain provisions undercut the Department of Natural Resource’s ability to hold polluters accountable. Meanwhile business groups have also objected to the bill, hoping to prevent the DNR from exercising too much authority.
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, testing in Stella has found some of the highest levels of PFAS contamination in the country.
Over the last five months, the bill’s authors have been negotiating a final version of the measure. Ahead of the committee vote last Wednesday, Wimberger said the amendment reflects a compromise and Democrats have to recognize that in a divided government, they need to make some concessions. He also repeatedly said that complaints from conservation groups that the bill’s restrictions on DNR authority will hamper the agency’s ability to address contamination were “overblown.”
But advocates and local elected officials in PFAS-affected communities such as Campbell, Marinette and Peshtigo say that as they read the bill, the proposed grants have morphed from programs aimed at homeowners and farmers struggling with contaminated water to a program that shields the corporations responsible for the pollution from being held accountable.
Marinette and Peshtigo are facing one of the worst PFAS problems in the state due to contamination from the manufacturing and testing of firefighting foam at properties owned by Johnson Controls and Tyco Fire Products.
Doug Oitzinger, a city of Marinette alderman whose ward includes the source of the contamination, says he believes the legislation can be read in a way that exempts corporations like Tyco from being held accountable — and that those corporations will certainly file lawsuits seeking to have the law interpreted that way if it’s enacted. (Wisconsin Manufacturers and Commerce, the state’s largest business lobby, is currently fighting a lawsuit seeking to prevent the DNR from holding PFAS polluters responsible under the state’s hazardous spills law.)
The bill includes a section titled “limitations on DNR actions relating to PFAS” which has drawn complaints from clean water advocates. The section includes a provision that requires the DNR to get permission from a property owner before testing for PFAS on their land and if that landowner qualifies for the “innocent landowner” grant program — another piece of the bill — the DNR cannot take any enforcement action against the landowner. Advocates have warned that the current eligibility requirements for the innocent landowner grants expand the program to include organizations responsible for the pollution.
“I think there are legitimate concerns that people who didn’t have anything to do with creating a contamination system should be protected from the liability of having to clean that up,” Oitzinger says. “I can see saying we don’t want to come to that farm owner and punish them for something they didn’t cause. And we also shouldn’t be punishing a municipal wastewater treatment operator for something they didn’t cause. They’re, in both cases, the victim of something the industry did. This innocent landowner program doesn’t seem like it’s protecting them. It seems like it’s built around protecting Tyco. It’s always taking the opportunity, if it’s not built to protect Tyco, it’s built to constrain the DNR from dealing with the contamination. The bad guy in this bill is always the DNR, the bad guy is not the source of contamination, it’s not the emitter, the polluter. The bad guy is always the DNR.”
Peshtigo resident Jeff Lamont’s private well contains water contaminated with several compounds of PFAS at a level of 150 parts per trillion, more than twice the state’s standard for public drinking water and surface water systems. Lamont, a retired hydrogeologist, says he believes the legislation would set the precedent of putting the costs of PFAS remediation onto the taxpayer even when a responsible party has been identified by the DNR.
“This is essentially $125 million of taxpayer money put towards contamination by responsible parties,” Lamont says. “I don’t think the Wisconsin taxpayer should be responsible for the poor environmental practices that are happening here or could happen under this bill in its current form.”
Across the state, in the town of Campbell, town supervisor Lee Donahue says the residents of her community and the struggles they face accessing clean drinking water have been left behind.
“SB 312 was originally crafted to help private well owners and speed the process of distributing the $125 million PFAS trust funding to the communities most impacted,” Donahue told the Examiner in an email. “Now it is a quagmire of legislation favoring commercial interests over Wisconsin residents, essentially shifting the burden of cleanup to taxpayers instead of the polluters.”
But Wimberger says he disagrees with that reading of the bill, telling the Examiner that current law allows the DNR to punish landowners as “polluters” simply because a plume of PFAS is moving through the groundwater under their property, even if they didn’t initially cause that pollution.
“I understand what advocacy groups are trying to categorize things as and why those platitudinous descriptions are used,” Wimberger says. “Currently, anybody who has PFAS going through their property is going to be described by the DNR as an emitter. In the broadest sense of the word, the DNR can take anybody whose property has PFAS emitting and order them into remediation. So when an advocacy group says ‘polluters’ won’t be held to remediation orders, if they’re talking about innocent landowners, the answer is yes. That’s the purpose of the bill. The whole idea is to get these owners or lessors of land to not be afraid to test their wells or test their property. Because they will not be held to the remediation order if they let the DNR go on to do what they’re going to do at state expense. That only has a relationship to the innocent landowner.”
Oitzinger says current law may allow this but in practice the DNR doesn’t force individual property owners to cover the cost of remediating pollution that began at a different site.
“His whole platform was he’s so concerned about the individual property owner and the DNR coming into my home and holding me responsible,” Oitzinger says. “That’s just craziness. I’ve been in this business 30 years. He’s using that as an argument to provide exemptions to businesses that contaminate. All under the auspices that we’re concerned about the poor little property owner the DNR is going to come down like a ton of bricks on. The DNR are not stupid people, they are not going to hold the individual property owner for an adjacent site.”
The advocates say they’re going to lobby Democratic Gov. Tony Evers to veto the bill. At this point, they say, it’s no use trying to improve a bill that will actually harm affected communities. In the meantime, the state is still without a standard for the level of allowable PFAS in groundwater — which is where the millions of Wisconsinites with private wells get their drinking water.
“We are trying to make something that we didn’t ask for at least not detrimental to helping people and communities that are dealing with PFAS,” Oitzinger says. “We’re trying to fix [a bill] we didn’t create and didn’t want.”
Instead of the bill, which creates a whole new approach to regulating PFAS, the advocates say they’ve really just been asking for the DNR to set a groundwater standard or for the Legislature to pass a bill creating one. Oitzinger says the Legislature should pass a bill that states until the DNR institutes a groundwater rule, the standard should be set at the level the state Department of Health Services says isn’t harmful.
But Wimberger says it’s shortsighted to ask the Legislature to weigh in on the specifics of scientific policy.
“It is so wrong for them to want the Legislature itself to do groundwater standards,” he says. “The purpose of the DNR and having administrative rules is so that the state of Wisconsin can be more nimble toward problems just like this.”
But with the bill headed for a vote on the Senate floor, advocates say communities are being left behind for the sake of instituting limits on the DNR.
“There’s a whole section on constraining the DNR,” Oitzinger says. “It’s titled ‘limitations on department actions relating to PFAS’ that’s pretty clear — ‘we’re really concerned that you might be too good of a regulator, we’re concerned you’re trying to protect people or the environment too much.’ What would I want in the bill? Practically none of that. That shouldn’t be the emphasis of a bill on PFAS. The emphasis should be how do we get resources out? How do we help somebody like the town of Stella who got whacked on the side of the head and suddenly all their wells are contaminated?”