Memo: GOP bill to fund PFAS grants could prevent enforcement of pollution laws

By Chris Hubbuch

A Republican bill to help local communities clean up toxic “forever chemicals” would protect polluters from lawsuits and also prevent the state from enforcing its pollution laws, according to a new memo.

The bill, passed by the Assembly last month on a party-line vote, would create a $10 million grant program to help communities clean up contamination from compounds known as PFAS.

Under the bill, any local government that accepts a grant would be barred from bringing legal action against whoever is responsible for the contamination. Anyone who has received money through a lawsuit would be barred from receiving grants.

A memo from the nonpartisan Legislative Counsel says in addition to precluding those claims, the bill may also prevent the Department of Natural Resources from bringing enforcement action under the state’s environmental remediation law.

While it does not explicitly reference DNR enforcement actions, the memo says, the bill precludes any action against a person responsible for contamination that is the basis for a grant.

So, if grant money were used for remediation or some other improvement to a property, “then a plain language reading of the bill suggests that DNR could be precluded from bringing an enforcement action with respect to that property.”

According to the memo, the bill could even preclude enforcement actions unrelated to PFAS contamination, including crimes.

“While a court would likely view such an interpretation as absurd or unreasonable, it is significantly less clear how a court would interpret the provision in the context of DNR enforcement actions under the environmental remediation law,” it states.

Rep. Katrina Shankland, D-Stevens Point, who requested the memo, said the bill is an attempt to undermine the state’s spills law, which is also being challenged in the courts by Wisconsin Manufacturers and Commerce, the state’s largest business group.

“It is deeply troubling that WMC and its allies appear to be working to gut this bedrock environmental protection in the courts and in the Legislature, while at the same time, we continue to uncover more and more PFAS contamination across Wisconsin,” Shankland said. “This law is the only tool the DNR has in its toolbox right now to hold polluters accountable and clean up PFAS-contaminated water and soil.”

In testimony supporting the bill, WMC lobbyist Scott Manley said it would address the harm caused by PFAS while protecting businesses and local governments from “costly and frivolous lawsuits,” noting that the Evers administration has sought bids from law firms to investigate and potentially sue polluters.

Shankland called on the Senate, which has yet to schedule a vote on the bill, to “stop it in its tracks.”

“This was a broad approach to try and help our municipalities,” bill sponsor Rep. Elijah Behnke, R-Marinette, told The Associated Press last month. “Is it perfect? No. But I don’t think any legislation is.”

With thousands of variations, PFAS have been used for decades in hundreds of products, including firefighting foam and water-resistant fabrics. Some compounds have been linked to cancer, liver disease and problems with the immune system.

The DNR is monitoring more than 40 PFAS contamination sites across the state, including in Madison, where they have resulted in health advisories for fish. PFAS have affected dozens of private drinking wells in La Crosse and Marinette.

Marinette City Council member Doug Oitzinger said corporate polluters must be responsible for environmental damages.

“This bill threatens to make it more difficult — or even impossible — to do that,” he said. “The people of this community can’t afford to sign away their rights to hold polluters accountable.”