Regulatory costs heat up PFAS controversy

NORTHEAST WIS. – The two women who ran for state senator in the 12th District are both concerned about PFAS, or “forever chemicals,” in Wisconsin.

Exactly what should happen when the chemicals are detected in groundwater on a property is an issue the Wisconsin Supreme Court is considering in the Wisconsin Manufacturers Commerce Inc. and Leather Rich Inc v. Wisconsin Department of Natural Resources case.

The Peshtigo Times asked incumbent Republican state Sen. Mary Felzkowski of the 12th District, who retained her seat, and Democrat Andi Rich, a clean water advocate from Marinette, who ran unsuccessfully against Felzkowski, to share their perspectives on the Spill Law in the context of the case.

The court’s seven chief justices will be considering the Spill Law as it applies to PFAS detected on dry cleaners Leather Rich’s property in Oconomowoc. The case could have ramifications for the PFAS groundwater contamination in Marinette County thought to stem from Johnson Controls’ Tyco unit and its aqueous firefighting foam.

PFAS are a group of perfluoroalkyl and polyfluoroalkyl substances used in a variety of products, including coatings, adhesives, carpet, apparel, cookware, packaging and aqueous film forming foams. They’re often called “forever chemicals” because they don’t break down and stay in the environment indefinitely.

“This case is important to follow for multiple reasons,” Felzkowski said. “The first is obviously dealing with PFAS contamination from Tyco in the Marinette and Peshtigo areas. If the Supreme Court decides that a maximum contamination level in rule isn’t necessary for the Department of Natural Resources to force cleanup, then Tyco would most likely be forced to clean up all of the PFAS contamination.”

“As the law is currently written, Tyco could be responsible for PFAS clean-up and so could anyone else who possesses it on their land, including farmers, homeowners and small businesses that had nothing to do with the contamination,” Felzkowski added.

The high court will be considering whether to require regulations be in place before parties are held responsible for a hazardous spill. Such a requirement would be unwieldly as thousands of PFAS compounds exist and the list of PFAS chemicals changes, Andi Rich said.

The U.S. Environmental Protection Agency has set Maximum Contaminant Level goals for PFOA and PFOS of zero and enforceable levels at 4 ppt, while PFHxS and PFNA have MCLs of 10 ppt.

In 2022, the Wisconsin Department of Natural Resources set Maximum Contaminant Levels in drinking water of 70 ppt for PFOA and PFOS, according to a state website. This level is considerably higher than the national limits, according to a state website.

The state Department of Health Services provides drinking water health advisories for 18 PFAS chemicals, which also are higher than the U.S. EPA’s maximum contaminant levels and goals. Its advisory levels for PFOA and PFOS are 20 ppt., while its limit for PFNA is 30 ppt and for PFHxS is 40 ppt.

Companies making products containing PFAS also change their formulations periodically. “They can swap them out for another untested variant. When we find out down the road they’re toxic, that’s when we can do something about it,” Rich said — but in the meantime, the chemicals pose a health risk.

Rich and others in the Marinette area recall student athletes from Marinette High School who contracted testicular cancer after playing on athletic fields near a ditch where foam containing PFAS in large quantity was detected, she said.

With so many different PFAS chemicals being used, determining which ones are most toxic and at what quantity isn’t clear.

“Currently, Wisconsin does not have a groundwater standard for PFAS. When the Department of Natural Resources began formulating this rule, they were forced to put it on hold because they projected it would cost more than $33 million in the first two-years for implementation and compliance,” Felzkowski said.

Felzskowski said the Supreme Court also will consider how the Spill Law applies to individual property owners and small businesses. “As the law is currently written, Tyco could be responsible for PFAS cleanup and so could anyone else who possesses it on their land, including farmers, homeowners and small businesses that had nothing to do with the contamination,” she said.

In practice, Rich said it would be unusual for Wisconsin to hold farmers and homeowners accountable for PFAS contaminations found on their property if they weren’t the responsible party. In the State v. Mauthe case, “the state went in and remediated,” she said.

According to a Midwest Environmental Associates report from March 26, 2024, “DNR is not enforcing the Spills Law against farmers or farming operations that accepted biosolids contaminated with PFAS for land spreading on their fields.”

Felzkowski said the Regulations from the Executive in Need of Scrutiny (REINS) Act, which was signed into law in 2017, halted the DNR’s work on groundwater standards in 2023 because of the cost.“They projected it would cost more than $33 million in the first two-years for implementation and compliance,” she said.

“The REINS Act allows for more public input throughout the unelected bureaucratic rule-making process, prevents specific legislation from moving forward on a rule that would cost more than $10 million in compliance and implementation over a two-year period, and gives the Joint Committee on Review of Administrative Rules the ability to indefinitely suspend administrative rules,” she said.

What to do about the PFAS contamination is the question of the day because of the costs involved in this growing environmental issue. “I think that the PFAS contamination we know about in Wisconsin is just the tip of the iceberg, and we have no clue how extreme this is because people are currently afraid to test — due to the fact that the Department will label them a responsible party even if they’ve had nothing to do with the contamination,” Felzkowski said.

The Spill Law was written to encourage property owners to come forward with information about a hazardous spill, but it doesn’t assign responsibility to property owners who haven’t caused the spill, according to the Midwest Environmental Advocates.

Felzkowski would like to see this explicitly stated. “We absolutely need innocent landowner provisions for those who truly had nothing to do with the contamination in state law before this groundwater standard goes into effect,” she said.

Just how low the groundwater standard for PFAS should be depends on whom you ask, which has contributed to the lack of action. “It would be ideal if we could find a compromise,” Felzkowski said.

“I think that it’s time for a PFAS groundwater standard, but we need to be cognizant of what compliance and implementation costs are going to be, whether these costs will impact family-supporting jobs in our communities, and who could be targeted as a polluter,” Felzskowski said. “Maybe it’s a groundwater standard with a phasedown to ensure that enough time is provided for implementation. Maybe it’s one exception to the rule of the REINS Act.”

Rich also sees a vicious cycle of political maneuvering that hasn’t moved the issue forward. Without limits for PFAS in groundwater and biosolids, farmers can’t hold the biosolids manufacturers accountable, she said. “Right now with a failure of regulatory limits, they can’t even sue.”

“Between the REINS Act and lobbying by companies to prevent any regulatory limits, I completely understand the concern of people to not be held liable,” she said, but noted, “The state isn’t going after innocent landowners. On the DNR’s website, it says the DNR has no intention of holding farmers accountable,” Rich said.

Cindy Boyle, a former Town of Peshtigo Town Board chair who continues to be involved with environmental efforts to remove PFAS, said the state has received hundreds of millions of dollars in federal funds that can be used for new infrastructure in areas contaminated by PFAS, but the Town of Peshtigo isn’t one of the areas receiving the funds.

Boyle said she was saddened to learn the Town of Peshtigo wasn’t among the recipients. “We knew all this funding was going to be rolling out and were completely prepared to make our ‘ask’ … instead of working toward a permanent safe solution we sit with nothing,” she said.

Boyle also said in an email she didn’t want anyone impacted by the contamination to be blamed for it as residents have suffered enough. Boyle was Town Board Chair when the Town of Peshtigo began a lawsuit against Tyco over the spill the company has said it would take responsibility for in groundwater.

The Town of Campbell is using about $1 million in federal funds to build a new municipal well because PFAS was detected in some private wells, according to media reports.

Felzkowski foresees a public-private partnership. “Bad actors should be held accountable—that’s an easy one,” she said. “For others, it isn’t that simple.”