Money is there; plan isn’t $125M budgeted for PFAS remediation depends on next bill

For nearly three years now, more than 1,400 households in the town of Campbell have been using bottled water for everything, from drinking and cooking to brushing their teeth and watering their pets.

“It affects you every time that you would typically turn on your tap,” said Lee Donahue, a Campbell resident and town supervisor. “You fill your coffee pot with bottled water, you water your pets with bottled water, and you cook with bottled water.”

The French Island community, located just west of La Crosse and hugged by the Mississippi and Black rivers, has been under a health advisory for more than two years due to unsafe levels of “forever chemicals” found in the town’s wells.

PFAS, or per and polyfluoroalkyl substances, have been linked to health problems including low birth weight, cancer and liver disease, and have been shown to make vaccines less effective. They’re called forever chemicals because they do not break down in the environment and can accumulate in animal tissues and the human body.

For Wisconsinites like Donahue, long-awaited progress on combatting the state’s mounting PFAS crisis arrived last month in the 2023-25 biennial budget signed by Gov. Tony Evers. It includes $125 million to remove the contaminants in the state’s ground and drinking water.

The next challenge, though, is figuring out how to spend the funds. Those details aren’t in the budget.

It will take separate legislation — passed by the Republican-controlled Legislature and signed by the Democratic governor — before a penny is spent to address the contaminants that have been identified in communities across the nation and Wisconsin, including in Marinette, Wausau, La Crosse and Madison.

With funds approved in the state budget, all eyes shift to a bill introduced in May by Republican Sens. Rob Cowles and Eric Wimberger, both of Green Bay. Both lawmakers said they hope to bring the measure before the Legislature as early as September.

Wimberger told the Wisconsin State Journal the initial plan was to have finalized legislation ready by the time the budget was signed, but adjustments based on stakeholder input and wading through the technical components of the bill have slowed the process. Some environmental groups also have pushed back, worried the proposal could undermine the state Department of Natural Resources’ authority when it comes to PFAS testing and cleanup enforcement.

“It’s critical that we get this right, that we get it right the first time,” Donahue said. “When it comes down to the bottom line, we can’t undermine DNR’s authority. And if we do, we are taking a very scary step that is going to impact every single community in the state of Wisconsin.”

Some measures environmental groups oppose include:

■„ Barring the DNR from sampling water on land not owned by the state without first securing permission from the landowner, and prohibiting the agency from taking enforcement action unless a contamination exceeds state or federal limits.

■„ Prohibiting the agency from preventing, delaying or impeding a development or public works project due to PFAS contamination unless the project poses a risk to public health or welfare, could worsen environmental conditions or if the entity responsible for the project is the cause of the contamination.

“We have to be able to rely on the DNR to do what they have been given the authority to do and they have been given the authority to hold responsible parties accountable … otherwise communities like mine will have to live with this forever,” Donahue said.

Said Wimberger, “Generally, we want the DNR to be able to regulate a substance without being too imposing on property rights for people and we want people to be eligible for grants, but we want some restrictions on it so people don’t take advantage of it.”

“There’s just some balancing that has to be done as far as restrictions and eligibilities and enforcement that we have to figure out yet,” he said.

Grants proposed

Evers’ two-year spending plan included a request for $100 million in increased spending to test and respond to PFAS, a group of synthetic chemicals used in numerous products, including food packaging, nonstick cookware and water-resistant fabrics. Their unique water and fat-repellent properties also have made them a key ingredient in foam used to fight oil based fires.

While crafting the budget, Republicans in May chose to place $125 million into a separate account dedicated to addressing PFAS.

“These are scary chemicals with serious impacts so we’re very, very encouraged that we’re seeing bipartisan progress at the state level,” said Peter Burress, government affairs manager for Wisconsin Conservation Voters.

Wimberger and Cowles’ legislation, Senate Bill 312, would create a municipal grant program to help communities cover the cost of testing and treatment for PFAS, as well as provide grants for landowners who own property with PFAS contamination out of their control. Another grant program created under the bill would provide funds to individuals who own or rent a contaminated private well for treatment and filtration or the construction of a new well.

The bill also would require the DNR to resurvey local fire departments on their use and possession of PFAS-containing foam and contract with a third party to collect any remaining foam in the state.

Wimberger said the bill does nothing to change how the DNR should approach enforcement — through the administrative rulemaking process. Ultimately, he said the final version of the bill should be one that can secure bipartisan support and a signature from Evers.

“Outside of the dynamic of the enforcement issue, I think we’re probably going to have a meeting of the minds with the executive branch on a lot of this,” he said. “We’re not going to let some of the technical distractions be a poison pill for coming up with a solid grant program for people in need.”

Evers’ spokesperson Britt Cudaback said in an email the governor supports the PFAS spending Republicans included in the budget but added that PFAS “deserve immediate attention and effort.”

“Our administration will continue working with Republican legislators to improve this bill to help make sure it receives broad, bipartisan support while ensuring these funds get out the door quickly to Wisconsinites and communities who need them,” Cudaback said Monday.

Spills Law impact

Environmental groups have raised concerns that the bill could hamstring Wisconsin’s 1978 “Spills Law,” which requires anyone who “possesses or controls a hazardous substance which is discharged or who causes the discharge of a hazardous substance” to take the necessary actions to restore the affected air, land or waters. The law does not define “hazardous substance.”

Rob Lee, staff attorney with Midwest Environmental Advocates, said components of the bill limiting DNR’s ability to enforce hazardous substances could undermine the 45-year-old Spills Law, particularly when it comes to settlements through various lawsuits related to contaminations nationwide. Chemical manufacturer 3M Co. agreed just last month to pay $10.3 billion to water providers to settle a lawsuit over PFAS contaminations.

“When you’re messing with the Spills Law, that can really amount to a significant shift,” Lee said. “We have to be very careful that this bill doesn’t have unintended consequences … we can’t purport to spend $125 million on this issue while potentially giving way much more.”

On July 11, Wisconsin Conservation Voters called on the bill’s authors to remove from it any measures that would limit enforcement of the Spills Law.

“We’ve seen how the Spills Law has been really critical for identifying contamination across the state and making sure we are providing immediate relief to impacted Wisconsinites,” Burress said. “From our perspective, any legislation that undermines that law has to be a nonstarter because it’s just not worth it to take money in the short term and undermine long term remediation efforts.”

Limits on PFAS

Another factor at play is the Environmental Protection Agency’s proposed limits on PFAS in public water supplies, which were proposed earlier this year and are considerably stricter than current state rules.

The EPA has sought to regulate two common fluorinated compounds, collectively known as PFAS, at a maximum rate of 4 parts per trillion in drinking water. Last year, the DNR approved setting a standard for those chemicals — PFOA and PFOS — that was more than 17 times higher, at 70 ppt, in line with EPA guidance put in place in 2016.

The agency plans to issue a final rule sometime later this year.

What’s more, a study released earlier this month by the U.S. Geological Survey estimated that 45% of the nation’s tap water contains one or more PFAS. The Milwaukee Journal Sentinel last summer tested water from 40 Wisconsin communities and found about 40% of those samples had detectable levels of at least one type of PFAS.

Cowles said his hope is the final bill creates the legislative framework to begin to address PFAS in the state while also providing the flexibility to adapt to new research and updated federal standards.

“I really think this is the kind of issue that’s going to be with us for a long time. I don’t think there’s any silver bullet that just ends the discussion,” Cowles said. “As we find more stuff in the ground and in our drinking water, there will be pressure — and that’s justified — to deal with it. People want to drink water that they’re not questioning.”

As of June 2021, more than 500 wells in the town of Campbell tested positive for PFAS, with some wells registering levels thousands of times higher than federal recommendations.

The Associated Press reported last month that a law firm representing hundreds of French Island residents served the city of La Crosse with claims totaling $42.4 million related to the contamination. The city has 120 days to pay or deny the claims brought by the residents of Campbell. If the city denies the claims, claimants are able to file lawsuits seeking compensation.