A PFAS advisory sign along Starkweather Creek. (Henry Redman | Wisconsin Examiner)

Now that work on the state budget is complete, environmental groups and residents of communities affected by PFAS contamination believe progress can still be made on getting money out the door to help remediate water pollution across the state. 

Since the last biennial budget was passed, $125 million in funds meant to help with cleaning up contamination of water from PFAS has been sitting untouched with no legislative mechanism for getting that money out to communities.

PFAS, a family of man-made chemical compounds known as “forever chemicals” because they don’t break down in the environment, have been connected to cancer and other diseases. The chemicals have been used in products such as firefighting foam and household goods such as non-stick pans and fast food wrappers. Communities across the state have found PFAS contamination in their water. 

During the last legislative session, early hopes of compromise crumbled after Democrats and Republicans failed to reach agreement on a provision aimed at protecting “innocent landowners” from being subject to enforcement actions for PFAS contamination under the state’s toxic spills law by the Department of Natural Resources. 

Republicans, including the bill’s author, Sen. Eric Wimberger (R-Oconto) argued the bill had to include language that protected people who have PFAS contamination on their property through no fault of their own. Democrats said the language in the bill defining innocent landowners was so broad that it would exempt property owners responsible for pollution from being held responsible. 

Ultimately, Gov. Tony Evers vetoed the bill. 

Wimberger and Rep. Tim Mursau (R-Crivitz) authored legislation this year to get the $125 million earmarked for PFAS remediation out the door. 

Sara Walling, Clean Wisconsin’s water and agriculture program director, says she’s “hopeful” that discussions between the Republican bill authors, Evers and affected residents have been productive. 

“There is opportunity now I think that the budget is done for Wimberger and others, of course, to pay attention, put a little energy into this, and really sit down and hash out the provisions in there, and get to a point that there’s something hopefully that we can all live with, and that will get the money to impacted communities and private well owners and all the things that the money is intended to be used for,” Walling says. 

While people see progress being made, there are still objections to the legislation. Wimberger and Mursau have proposed two bills, one of which exempts certain groups of people from enforcement under the spills law. 

Exempting ‘innocent landowners’

The exemptions include anyone who spread biosolids or wastewater contaminated with PFAS onto a field while in compliance with a DNR permit; owns land on which contaminated biosolids were spread under a permit; a fire department, public airport or municipality that used PFAS-contaminated firefighting foam to train for or respond to emergencies; solid waste disposal facilities that accepted PFAS and anyone that owns, leases, manages, or contracts for property on which PFAS has moved through the groundwater (unless they caused the contamination on another piece of property). 

Earlier this year, Evers suggested he’d support exempting farmers and residents from being held financially responsible for cleaning up PFAS contamination if they unknowingly caused it by spreading contaminated biosolids. 

But Walling says she’d like to see that language tightened further to make sure it does not create a loophole for responsible parties. 

“The provisions that are laid on that out there now just provide far too big of a loophole for who would be considered an innocent landowner in the current bill language,” she said. “And we really want to see that tightened so that truly innocent landowners, the passive receivers, the farmers out there who unknowingly were accepting municipal biosolids … those are the innocent landowners that I know that the authors are trying to protect.” 

What’s an allowable level of PFAS?

The other bill creates the mechanisms and grant programs through which the $125 million would be awarded to affected communities. 

Doug Oitzinger is the former mayor and a current city councilmember of Marinette and a founder of a group of community members fighting to clean up PFAS pollution in his area from the manufacture of fire suppression technologies by Tyco/Johnson Controls. 

Oitzinger says he’s wary of a provision in the bill that exempts private property owners who don’t qualify as innocent landowners from enforcement under the spills law unless the level of PFAS present violates an existing state or federal standard. The federal government doesn’t regulate groundwater and for years the state Department of Natural Resources has been unable to promulgate an administrative rule that sets the allowable amount of PFAS in groundwater. 

The DNR failed once because of a deadlocked vote on the state Natural Resources Board and a second time because the proposed rule had a potential economic impact greater than $10 million and therefore required approval of the full Legislature under a law known as the REINS Act. 

The DNR is currently working on the economic impact analysis of another proposed groundwater standard. Oitzinger says he’s doubtful that proposal will stay clear of the REINS Act. So, he says, he’s working with Mursau to include a groundwater standard in the bill. 

The most significant amendment Oitzinger is fighting for in the legislation is the creation of a temporary standard for the regulation of PFAS in Wisconsin’s groundwater. 

“We’ve been working to see if legislatively, we can get something that does not undermine the spills law to get the $125 million out the door, that the governor would sign, that we would be in support of and, at the same time, establish some kind of interim groundwater standard for PFAS,” Oitzinger says. 

As someone fighting for a community that’s been heavily polluted with PFAS, Oitzinger says his goal is to find a compromise that helps people get clean water, even if environmental and industry groups aren’t fully satisfied. 

“It doesn’t do us any good to get into our respective camps and not find common ground,” he says. “And then the bill reaches the governor’s office and he vetoes it. That’s not helping anybody, so we’ve got to find compromise. Some of the environmental groups won’t like it, and certainly I think some of the industry lobbying groups won’t like it, but this is what we’ve got to do.”

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The Wisconsin Supreme Court delivered a victory for environmentalists on Tuesday in the fight over “forever chemicals” known as PFAS, issuing a ruling that advocates said will hold polluters accountable.

The liberal-controlled court ruled that state regulators can force landowners to clean up emerging pollutants such as PFAS before they are officially designated as hazardous substances.

The 5-2 ruling is a defeat for the state’s powerful group representing businesses and manufacturers, which had argued the state couldn’t enforce regulations on substances before they were officially designated as hazardous.

It is the latest development in a yearslong battle in Wisconsin and nationally involving regulators, environmentalists, politicians and businesses over how to deal with PFAS contamination.

The PFAS problem

Cities large and small across Wisconsin, from Madison to Marinette and La Crosse to Wausau, are grappling with PFAS contamination.

PFAS, or perfluoroalkyl and polyfluoroalkyl substances, are a group of chemicals that have been around for decades and have now spread into the nation’s air, water and soil.

They were manufactured by companies such as 3M, Chemours and others because they were incredibly useful. They helped eggs slide across nonstick frying pans, ensured that firefighting foam suffocates flames and helped clothes withstand the rain and keep people dry.

The chemicals resist breaking down, however, which means they stay around in the environment and have a hard time breaking down in the body. There is a wide range of health harms now associated with exposure to certain PFAS, including low birth weight, cancer and liver disease.

The Wisconsin case

The Wisconsin Supreme Court ruled in a case brought by the state’s largest business group, Wisconsin Manufacturers & Commerce, which sued the DNR in 2021 on behalf of Leather Rich, a dry cleaning business in Oconomowoc.

Leather Rich became aware of PFAS contamination in 2018 and was working on cleaning it up when the DNR posted a message online in 2019 saying it now considered PFAS chemicals a hazardous substance. The agency ordered the dry cleaner to test its groundwater for PFAS but didn’t tell the business which compounds it needed to test for or what levels would be considered dangerous.

WMC and Leather Rich argued the DNR can’t force businesses to test and clean up contamination from emerging pollutants like PFAS without first designating them as hazardous substances. That process can take years and requires approval from the Legislature. All that time, polluters could harm the environment and put people’s health and safety at risk with no obligation to begin cleanup, the DNR argued.

But Leather Rich argued that businesses have a right to know which substances are subject to regulation before spending time and money on cleanup.

A Waukesha County judge and the state appeals court sided with Leather Rich.

The DNR appealed, saying the lower court’s ruling would neuter the state’s “spills law,” which was designed to confront pollution.

That law, enacted about 50 years ago, requires anyone who causes, possesses or controls a hazardous substance that’s been released into the environment to clean it up.

“Wisconsin’s Spills Law safeguards human health and the environment in real time by directly regulating parties responsible for a hazardous substance discharge,” Justice Janet Protasiewicz wrote for the majority.

No state law required the DNR to implement a rule before requiring Leather Rich to begin cleaning up the site, she wrote.

“The DNR has explicit authority to enforce a threshold for reporting the discharge of hazardous substances,” Protasiewicz wrote.

The court’s four liberal justices were joined by conservative Justice Brian Hagedorn in the majority. Conservative justices Annette Ziegler and Rebecca Bradley dissented.

In the dissent, they said the ruling allows bureaucrats to “impose rules and penalties on the governed without advance notice, oversight, or deliberation. In doing so, the majority violates three first principles fundamental to preserving the rule of law — and liberty.”

Democratic Gov. Tony Evers and environmental advocates hailed the decision.

“This is a historic victory for the people of Wisconsin and my administration’s fight against PFAS and other harmful contaminants that are affecting families and communities across our state,” Evers said in a statement.

Rob Lee, attorney for Midwest Environmental Advocates, called the ruling “a victory for the health and wellbeing of the people of Wisconsin” that reinforces “a bedrock environmental and public health protection that has kept Wisconsinites safe from toxic contamination for almost 50 years.”

But Scott Manley, a vice president at WMC, said the ruling leaves it up to businesses and homeowners to guess about what is hazardous, leaving them subject to “crushing fines and endless, costly litigation.”

“This ruling blesses a regulatory approach that is fundamentally unfair, unworkable, and impossible to comply with,” Manley said.

Fight over PFAS regulation

Since the lawsuit was filed, additional state and federal regulations of PFAS have been put in place.

Federal regulators placed the first-ever national standards on PFAS in drinking water last year, but the Trump administration said in May that it planned to weaken those limits.

The state has imposed less restrictive limits on PFAS in surface and drinking water, defined as piped water delivered through public systems and noncommunity systems that serve places such as factories, schools and hotels.

But it has not implemented PFAS standards for groundwater, the source of drinking water for about two-thirds of Wisconsin residents. The agency stopped efforts to draft them in 2023 after determining that compliance would be too expensive.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our newsletters to get our investigative stories and Friday news roundup. This story is published in partnership with The Associated Press.

Wisconsin Supreme Court delivers win for environmentalists in fight over ‘forever chemicals’ is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

The seven members of the Wisconsin Supreme Court hear oral arguments. (Henry Redman/Wisconsin Examiner)

In a 5-2 ruling on Tuesday, the Wisconsin Supreme Court affirmed the Department of Natural Resources’ (DNR) authority to regulate polluters who produce hazardous substances such as PFAS through the state’s toxic spills law. 

The court’s ruling reverses the decisions of the circuit and appeals courts that could have threatened the DNR’s ability to force polluters to pay for the environmental damage they cause. For more than 40 years, the spills law has allowed the DNR to bring civil charges and enforce remediation measures against parties responsible for spills of “harmful substances.” 

The lawsuit was brought by an Oconomowoc dry cleaner and Wisconsin Manufacturers and Commerce (WMC), the state’s largest business lobby, after the owner of the dry cleaner, Leather Rich Inc., found PFAS on her property. 

In preparation to sell the business, Leather Rich had been participating in a voluntary DNR program to remediate contamination on its property in exchange for a certificate of liability protection from the department. During that process, the DNR determined that PFAS should be considered a “hazardous substance” under the spills law and communicated that on its website. 

If PFAS were present on a site, the DNR stated, participants in the voluntary program would only be eligible for partial liability protection. 

While conducting a site investigation through the program, Leather Rich determined three of four wells on the property exceeded Department of Health Services standards for PFAS concentration in surface or drinking water. The DNR requested that future reports from Leather Rich to the department include the amount of PFAS found on the property. Leather Rich responded by withdrawing from the program and filing suit. 

At the circuit and appeals courts, Leather Rich was successful, with judges at each level finding that the decision by the DNR to start considering PFAS a “hazardous substance” under the spills law constituted an “unpromulgated rule” and therefore was against the law. That interpretation would have required the DNR to undergo the complicated and often yearslong process of creating an administrative rule each time it determines that a substance is harmful to people or the environment.

SpillsLawDecision

In the majority opinion, authored by Justice Janet Protasiewicz and joined by the Court’s three other liberal leaning justices and conservative Justice Brian Hagedorn, the Court found that the DNR spent nearly 50 years administering the spills law responding “to about 1,000 spills each year, without promulgating rules listing substances, quantities, and concentrations that it deems ‘hazardous substances.’”

Protasiewicz wrote that when the Legislature wrote the spills law, it left the definition of “hazardous substance” intentionally open-ended but required a potentially harmful substance to meet certain criteria if it would apply under the law. 

“The definition of ‘hazardous substance’ is broad and open-ended in that it potentially applies to ‘any substance or combination of substances,’” Protasiewicz wrote. “But the definition is limited in that the substance or combination of substances must satisfy one of two fact-specific criteria.” 

She wrote that the law considers “a substance or combination of substances is ‘hazardous’ if,” its quantity, concentration or characteristics may cause or contribute to an increase in mortality or serious illness or may pose a potential hazard to human health or the environment

Leather Rich and WMC had argued that the Legislature’s failure to include chemical thresholds in the statutory text left while including the use of terms like “significantly,” “serious,” and “substantial,” meant that the law was ambiguous and therefore any DNR determinations of what counts as hazardous must be delineated in an administrative rule. They argued that under this interpretation of statute, spilling milk or beer on the ground could constitute a toxic spill. 

Protasiewicz wrote if that were the case, “then scores of Wisconsin statutes on a wide range of subjects would be called into doubt,” and that their hypotheticals are undermined by the text of the statute. 

“It is possible for an everyday substance like milk or beer to qualify as a ‘hazardous substance,’ but only if it first satisfies [the statute’s] fact specific criteria,” she wrote. “A mug of beer or a gallon of milk spilled into Lake Michigan may not ‘pose a substantial present or potential hazard to human health or the environment,’ but a 500-gallon tank of beer or milk discharged into a trout stream might well pose a substantial present hazard to the stream’s fish and environment.” 

The majority opinion also found that communications the DNR made on its website and in letters to Leather Rich counted as “guidance documents” not as rules.

Justice Rebecca Grassl Bradley, who once gave a speech to WMC in which she declared to the business lobby that “I am your public servant,” wrote in a dissent joined by Chief Justice Annette Ziegler that the majority’s interpretation of the spills law left the state vulnerable to a “tyrannical” government that could both create the rules and enforce them. 

“This case is about whether the People are entitled to know what the law requires of them before the government can subject them to the regulatory wringer,” she wrote. “The majority leaves the People at the mercy of unelected bureaucrats empowered not only to enforce the rules, but to make them. Americans have lived under this unconstitutional arrangement for decades, but now, the majority says, the bureaucrats can impose rules and penalties on the governed without advance notice, oversight, or deliberation. In doing so, the majority violates three first principles fundamental to preserving the rule of law — and liberty.” 

After the decision’s release, Democrats and environmental groups celebrated its findings as an important step to protecting Wisconsin’s residents from the harmful effects of pollution. 

“This is a historic victory for the people of Wisconsin and my administration’s fight against PFAS and other harmful contaminants that are affecting families and communities across our state,” Gov. Tony Evers said in a statement. “The Supreme Court’s decision today means that polluters will not have free rein to discharge harmful contaminants like PFAS into our land, water, and air without reporting it or taking responsibility for helping clean up those contaminants. It’s a great day for Wisconsinites and the work to protect and preserve our state’s valuable natural resources for future generations.”

But WMC said the Court’s interpretation leaves businesses guessing what substances count as hazardous under the law. 

“The DNR refuses to tell the regulated community which substances must be reported under the Spills Law, yet threatens severe penalties for getting it wrong,” Scott Manley, WMC’s Executive Vice President of Government Relations, said in a statement. “Businesses and homeowners are left to guess what’s hazardous, and if they’re wrong, they face crushing fines and endless, costly litigation. This ruling blesses a regulatory approach that is fundamentally unfair, unworkable, and impossible to comply with.”

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PFAS, sometimes known as forever chemicals, are a family of over ten thousand compounds with remarkable performance in applications like waterproofing, fertilizer, pesticides,...

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