Wisconsin DNR Secretary Karen Hyun testifies to an Assembly committee about legislation to address PFAS contamination. (Henry Redman | Wisconsin Examiner)

A Wisconsin Assembly committee held a hearing Wednesday on a pair of bills to help mitigate and clean up water contamination caused by PFAS — a class of compounds also known as “forever chemicals” that has been tied to cancer and developmental diseases in children. 

For two and a half years, $125 million set aside in the state’s 2023-25 biennial budget to fund the cleanup of PFAS contamination has sat untouched as the Republican-controlled Legislature, Democratic Gov. Tony Evers and a collection of interest groups were unable to reach agreement on how to structure the program and who should be held responsible for the pollution. 

After initial optimism, the first legislative effort died after Democrats and environmental groups complained that the proposal let polluters off the hook. 

While the debate in Madison has dragged on, communities including French Island near La Crosse, the town of Stella near Rhinelander, Wausau and Marinette have continued to face the harms of PFAS-contaminated water. 

When the legislation was introduced again at the beginning of this legislative session, legislators again expressed hope that a compromise could be reached. Earlier this week, the bill’s authors, Sen. Eric Wimberger (R-Oconto) and Rep. Jeff Mursau (R-Crivitz), released a proposed amendment to the legislation. One of the bills directs how the money in the trust fund will be directed and the other creates the programs through which the money will flow.

At the hearing Wednesday, the duo emphasized how important it was for them to get the money out the door into affected communities and the need for compromise on the issue. 

“The 2023-2025 budget included $125 million to address PFAS contamination and support cleanup efforts across the state,” Mursau said. “Unfortunately, those funds are sitting idle because we have failed to pass the legislation necessary to put them to work. Progress will require compromise. There are stakeholders on both sides of the aisle who may not like these amendments, but that is the reality of divided government, and it is not an excuse for inaction.” 

The pair said the latest version of the legislation is the result of months of negotiations with the Department of Natural Resources and the Evers administration. 

While the legislation still includes the “innocent landowner” provisions that have been at the heart of the dispute, the amended version tightens the definition of who qualifies. Wimberger said the new definition would still allow the DNR to bring enforcement actions against industries including paper companies and airports, but that the current version represents a lot of movement from the DNR and Evers.

“There was quite a bit of coming off the ledge on the governor’s side regarding innocent landowners,” Wimberger said. 

Additionally, the bill creates a number of programs to test for PFAS and fund mitigation efforts by helping individual landowners dig new wells, helping communities upgrade water treatment systems and funding more comprehensive testing efforts. 

But the language of the proposed amendments shows how difficult it has been for legislators to adjust the dial on Wisconsin’s PFAS policy. The bills now have the support of Evers, the DNR and some of the state’s leading environmental organizations, but industry groups including the state’s largest business lobby, Wisconsin Manufacturers and Commerce, and the Wisconsin Paper Council argued at the hearing that the bill would single out certain types of industry for enforcement actions. 

“Substitute Amendment One takes a huge step backwards in terms of protecting truly innocent landowners and passive receivers,” Adam Jordahl, WMC’s director of environmental and energy policy, said, referring to a particular provision of the bill.

WMC in recent years brought and lost a lawsuit that would have prevented the state’s spills law from being applied to entities responsible for PFAS pollution. 

Several industry representatives also threatened that if the amended bills are signed into law, they could invite legal challenges because of “constitutional concerns.” Jordahl said that one of the bills treats municipal facilities such as landfills and water treatment plants differently than private businesses conducting similar activities, which could make the law vulnerable to a lawsuit. 

“This discrimination raises a significant constitutional concern under the concept of equal protection,” he said. “A successful lawsuit raising an equal protection claim could result in the invalidation of those unfairly applied exemptions. Second, as a policy matter, we feel this simply makes no sense. What is the policy justification for treating commercial and industrial or manufacturing facilities differently when they’re conducting the same activities and operating under the same laws and regulations?” 

Paper industry representatives said at the hearing it’s unfair for the bill to single them out because the industry will be subjected to increased scrutiny despite their claims that the business does not cause most PFAS pollution.

Last year, the DNR named a paper mill as the responsible party for the PFAS contamination in Stella, which has seen some of the highest concentrations of the chemicals in the state.

Despite the skepticism from the business community about the latest version of the legislation, lawmakers throughout the Capitol appeared confident that it could finally get across the finish line. 

“I met with Republican lawmakers and the DNR last week about critical PFAS bill changes that will be necessary to garner my support, and I’m really optimistic we’re finally going to be able to get something good done here after months of successful and productive negotiations,” Evers said in a statement. “I’m grateful Republican lawmakers have formally introduced an amendment that reflects the changes we’ve agreed to so far as a sign of good faith. We still have some important details to iron out to make sure DNR has the resources they need, but we’ve made a lot of progress. So, I’m really hopeful.”

Both Evers and Wimberger noted that the only remaining sticking point in the negotiations is how many staff members the DNR will be authorized to hire to support the responsibilities required under the bill. The current version of the amendment authorizes 10 positions while Evers is requesting 13. 

Republican leaders in the Legislature have also signaled that the bill is likely to move forward. 

“I think it’s a move in the right direction,” Senate Majority Leader Devin Lemahieu (R-Oostburg) said. “I think it’s a bill that hopefully our caucus can get behind and maybe finally get that money out the door.”