On June 5, 2023, the Wisconsin Senate’s Natural Resources Committee held a public hearing on proposed Senate Bill 312, which aims to distribute $125 million in state funding to address pollution of per- and polyfluoroalkyl (PFAS). PFAS are a diverse group of manmade chemicals used in hundreds of products, and are alleged to have “possible links” with “adverse health outcomes,” including low birth weight, cancer, liver disease and reductions in vaccine effectiveness. The Bill comes on the heels of municipalities across Wisconsin struggling with PFAS contamination in groundwater. Currently affected areas include Green Bay, Marinette, Madison, Wausau and the town of Campbell on French Island.
Key provisions in the Bill include grants for local governments and public water utilities to test for PFAS and dispose of PFAS-containing biosolids, as well as upgrades to infrastructure and facilities. Proposed Senate Bill 312 also provides an opportunity for owners of private polluted wells to apply for grants. The Bill would also prohibit the Wisconsin Department of Natural Resources (DNR) from requiring owners of abandoned industrial property to test for PFAS unless the agency has information the property is contaminated. It would also prohibit DNR from preventing or delaying a development project based on PFAS contamination unless the pollution poses a risk to public health, the project could further degrade the environment, or the entity looking to complete the project caused the original contamination through its own negligence.
Senate Bill 312, in its current draft, also requires DNR to obtain permission from private landowners to test their waters for PFAS, and puts the onus on DNR to begin remedial actions at any contaminated site where the responsible party is unknown or unable to pay for remediation. Moreover, a public water utility provider would not need State regulators’ permission to upgrade its facilities to address PFAS contamination if costs are less than $2 million, or 50 percent of operating expenses from the year prior. Finally, proposed Senate Bill 312 requires the University of Wisconsin and DNR to collaborate on PFAS treatment studies.
Notably, the Bill has garnered both positive and negative attention. State agencies, legislators, advocacy groups and lobbyists spent over three hours at the public hearing requesting amendments to the drafted legislation. While most speakers at the June 5 hearing were supportive of legislative action to address PFAS contamination, there were disagreements concerning the mechanisms by which to achieve this goal. In fact, each person who testified raised different issues with respect to the current draft of Senate Bill 312, and some even offered multiple proposed amendments.
During the hearing, the Water and Agriculture Program Director for environmental advocacy group Clean Wisconsin testified the restrictions of proposed Senate Bill 312 could weaken the currently strong protections afforded by the State’s Hazardous Substance Spill Law. A staff attorney for Midwest Environmental Advocates was also concerned that limitations within the Bill could weaken DNR’s authority to find and address PFAS contamination. DNR also admitted it was concerned that the Bill could result in conflict with its obligations under federal law, such as the Clean Water Act, and the State’s groundwater laws.
That said, the Wisconsin Manufacturers & Commerce (WMC) offered testimony in support of the Bill at the June 5 hearing, favoring more restrictions and limiting DNR’s authority in some cases. WMC also urged to reduce the number of six PFAS chemicals presently regulated under the Bill (PFOS, PFOA, PFHxS, PFNA, PFHpA and PFDA) to two—specifically PFOA and PFOS—and to exclude PFAS chemicals that have neither public health advisories nor proposed standards in place. Although WMC supported the Bill’s requirement for DNR to receive written permission from a landowner before testing for PFAS, it also asked for additional restrictions with respect to DNR’s public dissemination of any such test results.
Wisconsin lawmakers have already passed bills that limit the use of PFAS-containing firefighting foam, but claim the tens of millions of dollars needed for cleanup, filtration upgrades, and well reconstruction prevented the implementation of other PFAS-related regulations. DNR also adopted limits on PFAS in surface and drinking water in 2022, and is currently working on establishing groundwater limits.
It is unclear when the Wisconsin Senate Committee will vote on proposed Senate Bill 312. Nonetheless, it is critical to monitor these developments and others nationwide, as they will significantly impact business and land owners in the state, and will affect the future of PFAS litigation.