PFAS bill sparks debate over ‘innocent landowner’ protections

A Republican proposal aimed at shielding “innocent landowners” from PFAS cleanup liability while directing financial assistance to affected communities drew mixed reaction during a recent legislative hearing, as business groups and environmental advocates clashed over how Wisconsin should manage both chemical clean-up and responsibility for contamination.

The legislation would establish a statewide PFAS remediation framework, including testing assistance and cleanup grants, while limiting enforcement actions against property owners who did not cause the contamination. 

Supporters argue that the legislation is necessary to prevent heavy-handed enforcement by the Department of Natural Resources (DNR), while opponents contend that the proposal could allow large polluters to escape accountability.

Wisconsin Manufacturers & Commerce (WMC), which has made supporting the bill a priority, warned that recently proposed DNR groundwater standards could trigger action against individuals or businesses that played no role in causing contamination. Some standards are so low, WMC argues, that even trace detections could trigger regulatory action.

“We have serious concerns that DNR’s aggressive standards will be used to treat innocent landowners as polluters,” WMC environmental and energy policy director Adam Jordahl said. “Without legislative action to protect innocent parties, DNR’s proposed regulations would impose serious costs and freeze land use.” 

Jordahl also argued that the bill being considered does not amount to a loophole for polluters.

“It protects innocent landowners from having their properties turned into brownfields overnight without protections or a statewide cleanup plan,” he said.

A framework with fairness

Bill co-author Sen. Eric Wimberger (R-Oconto) said the legislation responds to the growing financial burdens facing communities and property owners as PFAS chemicals — once considered safe — are now being treated as hazardous. 

As the EPA states, PFAS are widely used industrial compounds, often labeled “forever chemicals,” that resist breakdown and can accumulate in the human body. Financial and regulatory requirements to address the contamination will continue to increase, Wimberger said at the hearing.

“This comes at great cost to communities impacted by PFAS, who are left to clean up the mess,” Wimberger said. “[The bill] creates a statewide framework to help communities impacted by PFAS get the help they need to address PFAS contamination.”

Specifically, the bill would establish a PFAS Municipal Grant Program to assist municipalities and non-municipal public water providers, including restaurants, daycares, and schools, with testing, filtration, disposal, and infrastructure upgrades. 

Wimberger emphasized that many affected landowners did not knowingly cause contamination, and so the bill creates new protections for innocent landowners, preventing them from being held financially responsible for someone else’s pollution.

“This includes those who either didn’t cause their contamination or were permitted or even required by the state or federal government to unknowingly cause contamination,” he testified. “For instance, land spreading of PFAS-laden biosolids has been permitted by the Department of Natural Resources over thousands of acres across Wisconsin. Despite greenlighting this spread, that same regulatory agency can hold the farmers, homeowners and businesses that now own the land responsible for its cleanup.”

The bill would also prohibit the DNR from delaying public works projects on PFAS-contaminated sites unless the work would exacerbate contamination and the project contractor was responsible for the issue.

“This is a commonsense fix,” he said. “Communities with contaminated groundwater also need public works and shouldn’t be subject to needless delays without cause.”

He added that the bill expands testing availability and pilot research to reduce remediation costs.

WMC criticizes lawsuits

WMC’s Jordahl testified that PFAS contamination mostly stems from decades-old, legal use of firefighting foam and land-applied biosolids. He, too, observed that those materials were often used or dispersed under federal and state authorization, especially by wastewater treatment facilities and landfills. 

Jordahl said that farmers and businesses that agreed to the legally permitted land application of biosolids, an important method for wastewater and solid waste facilities to dispose of treated byproducts, should not be punished. 

“More broadly, the protections under this bill for ‘innocent landowners’ should not be unique to PFAS,” he testified. “They should be extended to innocent landowners of any hazardous substance that was discharged on their property through no fault of their own.”

Indeed, Jordahl said, the PFAS issue highlights a broader concern that WMC has long had with Wisconsin’s “Spills Law,” which holds properties to strict liability for contamination, regardless of whether the current owner or controller of a property actually caused the contamination. 

“We have seen many homeowners and businesses unfairly impacted by this requirement, unable to sell or develop their property without incurring expensive cleanup costs,” he testified.

Jordahl further criticized what he called “abusive” lawsuits against manufacturers of legacy PFAS compounds. 

“At the time those products were manufactured, they were perfectly legal, and their risks were not discovered or fully understood until decades after they were invented and widely used in commerce,” he testified.

Jordahl compared the situation to petroleum contamination from aging gas station tanks years ago. 

“To address this problem, Wisconsin set up a fund dedicated to remediating those sites, funded by a tiny fraction of gas tax revenue,” he testified. “What Wisconsin didn’t do in response to this problem was start suing the companies that manufactured gasoline and diesel fuel.”

And yet, Jordahl continued, that’s what some political leaders in the state and across the country have decided to do with PFAS. 

“Right now, the state of Wisconsin is suing companies that manufactured legacy PFAS compounds,” he testified. “Among those compounds, PFOS was the key ingredient in firefighting foam products that were used for decades to extinguish dangerous liquid fuel fires. This product saved lives, and it was mandated by the Federal Aviation Administration for airports to maintain a supply of fluorinated firefighting foam and to regularly test that foam.”

Now, Jordahl asserted, the state seeks to establish a false narrative that PFAS manufacturers are somehow responsible for the ultimate fate of every bit of their product, long after it was sold to customers. 

“This is fundamentally unfair, anti-business, and a terrible precedent to set in public policy and the civil legal system,” he testified. “Truly comprehensive PFAS legislation would address this issue by providing immunity to manufacturers of legacy PFAS from the liability associated with how an end-user used their product.”

Jordahl said WMC was not suggesting that any manufacturer that actually discharged PFAS to the environment should be immune from liability. 

“We simply believe that fundamental fairness dictates that a manufacturer should not be held liable for how someone used their product after it was purchased,” he testified.

A shield for polluters?

However, environmental advocates warned that the bill’s “innocent landowner” designation was too broad and could allow major contributors — including airports, municipalities, and paper mills — to avoid cleanup obligations.

Elizabeth Ward, chapter director of Sierra Club Wisconsin, said entities responsible for contamination could be exempt from responsibility under the Spills Law to restore the impacted environment and minimize the harmful effects of contamination. 

“This is unacceptable, shifting the responsibility away from those who caused serious harm and potentially saddling others with exorbitant cleanup costs,” Ward testified.

Ward said private well owners should be prioritized under the Innocent Landowner Grant Program, which is currently written to include large entities that may themselves be responsible for PFAS contamination. 

“Private well owners have had to bear the weight of pervasive contamination due to no fault of their own,” she testified.

Ward also called on lawmakers to fund the necessary work. 

“The bill does not tie funding to the proposed programs, despite the fact that the legislature set aside funding for PFAS clean-up purposes two years ago,” she testified. “The majority of the funding necessary for remediation work should come from responsible parties.”

Clean Wisconsin, which also opposed the bill as drafted, acknowledged the authors’ intentions but stated that its innocent landowner protections were vague enough that paper mills, chemical producers, or wastewater operations could escape responsibility even when their practices discharged PFAS residuals. 

“This is not acceptable,” government relations director Erik Kanter testified. “While we understand the intent of the provision could be to provide liability exemption for third-party waste haulers and spreaders or entities that could reasonably be considered passive receivers, the language does not explicitly state that intent. We recommend significantly narrowing the language …”

Kanter said his organization had met with the bill’s authors and believed revisions were forthcoming. He outlined four recommended changes, including striking language that could allow facilities to exempt themselves simply by granting DNR access for cleanup, with the department paying the costs. 

“Clean Wisconsin is concerned such language allows entities to simply self-select for exemption from the spills law irrespective of the DNR’s interest, capacity and funding to remediate a property,” Kanter testified.

Clean Wisconsin also observed that firefighting training with PFAS foam is already illegal, yet the bill could allow departments and airports to qualify as innocent landowners in training cases involving foam use: “This seems to be in contradiction with existing law.”

The group called for striking the training language and clarifying that the exemption should not apply when PFAS foam is used “unnecessarily or inappropriately” in an emergency.

The organization said it remains open to cooperation. Kanter said he is “confident that an amended and improved version of this bill that addresses our concerns could garner our approval.” 

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.