SB 128

This bill creates several new programs and requirements relating to PFAS, which is defined in the bill to mean any perfluoroalkyl or polyfluoroalkyl substance.

Municipal PFAS grant program

The bill requires the Department of Natural Resources to create a municipal PFAS grant program, which applies only to types of PFAS for which there is a state or federal standard, a public health recommendation from the Department of Health Services, or a health advisory issued by the federal Environmental Protection Agency. Under the bill, the municipal PFAS grant program provides all of the following grants:

1. Grants to municipalities (defined under current law as a city, town, village, county, county utility district, town sanitary district, public inland lake protection and rehabilitation district, or metropolitan sewage district) for PFAS testing at municipal water systems and municipal wastewater treatment facilities, or for reimbursement for such testing if performed at properties owned, leased, managed, or contracted for by municipalities and if there are promulgated standards for those types of PFAS.

2. Grants to nonmunicipal entities regulated as public or community water systems, distributed in equal shares up to $1,800, to test their drinking water supply for PFAS, if required to do so by DNR, or for reimbursement for such testing.

3. Grants to privately owned landfills, in equal shares up to $15,000, to test for the presence of PFAS in leachate.

4. Grants to municipalities to test for PFAS levels at municipally owned, leased, managed, or contracted locations where PFAS may be present, including testing for PFAS levels in leachate at landfills. If the property to be tested is not owned by the municipality, DNR may not issue a grant unless the property owner gives the municipality written consent to enter the property and conduct testing. These grants are not available to municipalities that receive a grant under this program to test for PFAS at municipal water systems and municipal wastewater treatment facilities. For these grants, DNR may require matching funds of up to 20 percent from the applicant.

5. Grants to municipalities and privately owned landfills to dispose of PFAS-containing biosolids or leachate at facilities that accept such biosolids or leachate or to purchase and install on-site treatment systems to address PFAS contained in biosolids or leachate. For these grants, DNR may require matching funds of up to 20 percent from the applicant and the grants may not be used for costs associated with landspreading.

6. Grants for capital costs or debt service, including for facility upgrades or new infrastructure, to municipalities that are small or disadvantaged or in which rates for water or wastewater utilities will increase by more than 20 percent as a direct result of steps taken to address PFAS contamination. When issuing these grants, DNR must give priority to projects that are necessary to address an exceedence of an applicable state or federal standard.

7. Grants to municipalities for capital costs or other costs related to PFAS that are not otherwise paid from the segregated environmental improvement fund, including costs for addressing landfills or other contaminated lands owned, leased, managed, or contracted for by municipalities or costs incurred by fire departments; grants to municipalities for the preparation and implementation of pollutant minimization plans; and grants to municipalities for costs incurred by public utilities or metropolitan sewerage districts for pretreatment or other PFAS reduction measures in certain circumstances. For these grants, DNR may require matching funds of up to 20 percent from the applicant.

For all of the grants provided under the municipal PFAS grant program, DNR may not require a grant recipient to take any action to address PFAS unless PFAS levels exceed any applicable standard under state or federal law. The bill also prohibits DNR from publicly disclosing the results of any PFAS testing conducted under this grant program unless DNR notifies the grant recipient at least 72 hours before publicly disclosing any test result, with certain exceptions.

Current law provides that whenever a state agency is authorized to provide state funds to any county, city, village, or town for any purpose, funds may also be granted by that agency to any federally recognized tribal governing body for the same purpose.

Innocent landowner grant program

The bill also requires DNR to create an innocent landowner grant program, which applies only to types of PFAS for which there is a state or federal standard, a public health recommendation from the Department of Health Services, or a health advisory issued by the federal Environmental Protection Agency.

Under the program, DNR may provide grants to an eligible person or to a person who is applying on behalf of multiple eligible persons that are located in the same geographic region, if the applicant will be the entity performing any authorized activities. Under the program, an “eligible person” is 1) a person that spread biosolids or wastewater residuals contaminated by PFAS in compliance with any applicable license or permit, 2) a person that owns land upon which biosolids or wastewater residuals contaminated by PFAS were spread in compliance with any applicable license or permit, 3) a fire department, public-use airport, or municipality that responded to emergencies that required the use of PFAS or that conducted training for such emergencies in compliance with applicable federal regulations, 4) a solid waste disposal facility that accepted PFAS, and 5) a person that owns, leases, manages, or contracts for property on which the PFAS contamination did not originate, unless the person also owns, leases, manages, or contracts for the property on which the PFAS discharge originated.

The total amount of grants awarded to each eligible person may not exceed $250,000 and DNR may require grant recipients to provide matching funds of not more than 5 percent of the grant amount.

Under current law provisions known as the “spills law,” a person that possesses or controls a hazardous substance or that causes the discharge of a hazardous substance must notify DNR immediately, restore the environment to the extent practicable, and minimize the harmful effects from the discharge. If action is not being adequately taken, or the identity of the person responsible for the discharge is unknown, DNR may take emergency action to contain or remove the hazardous substance; the person that possessed or controlled the hazardous substance that was discharged or that caused the discharge of the hazardous substance must then reimburse DNR for expenses DNR incurred in taking such emergency actions. The spills law allows DNR to enter property to take emergency action if entry is necessary to prevent increased environmental damages, and to inspect any record relating to a hazardous substance for the purpose of determining compliance with the spills law. DNR may also require that preventive measures be taken by any person possessing or having control over a hazardous substance if existing control measures are inadequate to prevent discharges.

Spills law exemptions

Under the bill, if a person is eligible for a grant under the innocent landowner grant program, the person is exempt from all of the provisions under the spills law described above with respect to PFAS contamination, if the person grants DNR permission to remediate the land at DNR’s expense.

If a person is not eligible for a grant under the innocent landowner grant program, the person is exempt from all of the provisions under the spills law described above, based on the results of any PFAS testing conducted on samples taken from lands not owned by the state, unless PFAS levels violate any applicable state or federal law, including any standard promulgated under state or federal law.

Limitations on DNR actions relating to PFAS

Under the bill, DNR may not prevent, delay, or otherwise impede any construction project or project of public works based on a presence of PFAS contamination unless DNR determines that 1) the project poses a substantial risk to public health or welfare, 2) there is a substantial risk that the project will create worsening environmental conditions, 3) the entity proposing to complete the project is responsible for the original contamination, as a result of conduct that was reckless or was done with the intent to discharge PFAS into the environment, or 4) DNR is specifically required under the federal Clean Water Act to prevent, delay, or otherwise impede the project. “Public works” is defined to mean the physical structures and facilities developed or acquired by a local unit of government or a federally recognized American Indian tribe or band in this state to provide services and functions for the benefit and use of the public, including water, sewerage, waste disposal, utilities, and transportation, and privately owned landfills that accept residential waste.

In addition, under the bill, if DNR seeks to collect samples from lands not owned by the state based on permission from the landowner, such permission must be in writing, and DNR must notify the landowner that such permission includes the authority to collect samples, to test those samples, and to publicly disclose the results of that testing. The landowner may revoke such permission at any time prior to the collection of samples. Under the bill, DNR also may not publicly disclose such PFAS testing results unless it notifies the landowner of the test results at least 72 hours before publicly disclosing them.

The bill also requires DNR, or a third-party contract by DNR, to respond in a timely manner to requests from any person to conduct PFAS testing on samples taken from the person’s property if practicable and if funds are available to do so, if there is a reasonable belief that PFAS contamination may be present on the property, and if existing information such as public water supply testing data is not available.

The bill also requires DNR, in the 2025-27 fiscal biennium, to increase its voluntary PFAS testing activities.

Firefighting foam

The bill requires DNR to survey or resurvey local fire departments about their use and possession of PFAS-containing firefighting foam, send communications and information regarding PFAS-containing firefighting foam, and contract with a third party to voluntarily collect PFAS-containing firefighting foam.

Well compensation grant program

Under current law, an individual owner or renter of a contaminated private well, subject to eligibility requirements, may apply for a grant from DNR to cover a portion of the costs to treat the water, reconstruct the well, construct a new well, connect to a public water supply, or fill and seal the well. The bill provides that a grant for costs to treat the water may be used to cover the cost of a filtration device and up to two replacement filters.

In addition, under the bill, if DNR determines that a claimant who is applying for a grant under the well compensation grant program on the basis of PFAS contamination would be eligible for a grant under the innocent landowner grant program created under the bill, and funding under that program is available, DNR must refer the claimant’s application to that program instead of processing it under the well compensation grant program. If the claimant is denied under the innocent landowner grant program, DNR must refer the claim back to the well compensation grant program.

Portable water treatment system pilot project

The bill requires DNR to contract with an entity to conduct a pilot project in which PFAS-contaminated surface water is partially or fully diverted to a portable treatment system and treated water is returned to the surface water. DNR and the entity must conduct tests to evaluate the success of the pilot project.

Remedial action at sites contaminated by PFAS

The bill allows DNR, or a contracted third party, to begin response and remedial actions, including site investigations, at any PFAS-contaminated site where a responsible party has not been identified or where the responsible party qualifies for a grant under the innocent landowner grant program. The bill directs DNR to prioritize response and remedial actions at sites that have the highest levels of PFAS contamination and sites with the greatest threats to public health or the environment because of PFAS.

Assistance for testing laboratories

The bill requires DNR and the Board of Regents of the University of Wisconsin System to enter into a memorandum of understanding to ensure that the state laboratory of hygiene provides guidance and other materials, conducts training, and provides assistance to laboratories in this state that are certified to test for contaminants other than PFAS in order for them to become certified to test for PFAS, and to assist laboratories certified to test for PFAS in this state to reduce their testing costs and shorten the timeline for receiving test results.

Under the bill, the Board of Regents, in coordination with DNR, may provide grants to laboratories in this state that are certified to test for PFAS, or that are seeking such certification, to assist with up to 40 percent of the costs of purchasing equipment necessary for testing for PFAS.

The bill requires the state laboratory of hygiene to prepare a report on these efforts and provide the report to the legislature.

PFAS studies and reporting

The bill requires DNR and the Board of Regents of the University of Wisconsin System to enter into a memorandum of understanding to 1) study and analyze the cost, feasibility, and effectiveness of different methods of treating PFAS before they are released into a water system or water body; 2) conduct a cost-benefit analysis of different options for disposing of biosolids or sludge that contains or may contain PFAS; 3) study and analyze the cost, feasibility, and effectiveness of different destruction and disposal methods for PFAS; 4) study and analyze the cost, feasibility, and effectiveness of different methods for remediating PFAS that leave the contaminated medium in place and methods that remove the contaminated medium; 5) study and analyze the migration of PFAS into the bay of Green Bay; 6) study and analyze the migration of PFAS into the Wisconsin and Mississippi Rivers and their tributaries; 7) conduct any additional studies related to PFAS, as approved by the Joint Committee on Finance; and 8) create a comprehensive, interactive map showing all available PFAS testing data and, for each data point, whether it exceeds any applicable state or federal standard for PFAS. Such data may not contain any personally identifiable information unless the entity to which the data applies is a municipal entity that is required to test and disclose its results under state law.