PFAS Chaos and the Politics of Liability

My name ain’t Billy

In modern Wisconsin politics, compromise has become something other than a deal made after a little give-and-take.

It no longer means meeting in the middle. Used to be, the essence of compromise was baking half a loaf of pumpernickel and half a loaf of standard rye—even if you disliked standard rye and fudged a bit on the pumpernickel. These days, if you’re a conservative, you just bake a whole loaf of rye and kiss your taste buds goodbye.

If that’s true bipartisanship, then you can call me Billy. But spoiler alert: My name ain’t Billy.

Nonetheless, that’s what passes for compromise these days in the Wisconsin legislature. Our legislative chefs start out strong, and maybe they even watch the Great British Bake Off. First, they set out very fine ingredients for tasty reform and put them on display for all the media to see. They don their aprons, prepare the batter, and promise the most delicious conservative agenda the world will ever see.

Then, little by little, no matter the popular majority they have, they wipe the counter clean. In place of the finest ingredients, they sneak in cheap substitutes that weaken the dough and ultimately undermine it. They rush the preparation and add too much processed sugar. In the end, we are left with only an aftertaste of flavor. We hold in our hands only a fragile crumb.

Welcome to the legislative kitchen in Madison. We start out with butter but somehow end up with margarine, and that’s very sad in America’s Dairyland.

We saw it in the Stewardship reform saga. GOP lawmakers railed against ingredient creep (namely, too much state spending for out-of-control land buying), but when the legislative loaf was pulled from the oven, it turned out the GOP had turned the bakery over to a chef who had tripled the recipe. Common sense has, for now, taken back control of that oven, though, just this past week, the lunatics who want the state to own every acre of Wisconsin were back lurking around the Senate, oinking for more, always oinking for more.

And now we see it again. This time, the pastry is labeled PFAS reform.

For years, the governor and legislature have tried—and failed—to create a workable PFAS remediation framework. The 2023-25 budget stashed $125 million in the PFAS Trust Fund to support contamination cleanup efforts, but, of course, the money has gone mostly unused. And it wasn’t spent because a standoff over liability—the same issue we have today—prevented the enactment of enabling legislation to spend that money.

Make no mistake, the Democrats and Gov. Tony Evers were the problem, along with their environmental allies, as they sought punitive liability strikes against productive economy. What’s good for prosperity is always bad in the eyes of progressives.

So last year, GOP lawmakers, led by state Sen. Eric Wimberger (R-Gillett) and state Rep. Jeff Mursau (R-Crivitz), introduced a viable bill. It included protections for innocent landowners, public and private. It would also have provided the framework needed to release the long-sequestered $125 million PFAS Trust Fund, and it balanced enforcement with fairness. It wasn’t perfect or universally embraced, but it was supported by major business and manufacturing groups and viewed by many in agriculture and local government as workable.

But it wasn’t palatable to environmentalists. They converged on Madison in a whimper of discontent. And so soon enough, after obligatory name-calling, Republicans showed up waving the white flag of surrender. The only difference between this behavior and the conduct in the Stewardship saga is that the Republicans surrendered before their original Stewardship bill was even introduced, but at least waited until the second round to surrender in the PFAS debate.

Specifically, as 2026 began, the half loaf of pumpernickel was nowhere to be found in the kitchen. Assembly Substitute Amendment 1 was introduced, significantly rewriting the bill’s original liability provisions. This version exempts certain local governmental entities while leaving manufacturers and other private businesses fully subject to strict liability, and, in doing so, it raises serious equal protection concerns that lawmakers are blithely pretending do not exist.

In testimony on the bill at a January 21 public hearing, Adam Jordahl, director of environmental policy at Wisconsin Manufacturers & Commerce (WMC), described what happened this way:

Just to clarify, the proposed amendment does indeed release $125 million from the PFAS Trust Fund. It also creates new community and airport grant programs, expands the Well Compensation Program, and funds PFAS testing and research initiatives. So far, so good.

But then there is the poison pill: It restructures PFAS-specific liability under Wisconsin’s Spills Law. The funding provisions are not controversial, but the liability restructuring is. Here’s how Lane Ruhland, legal counsel for the Wisconsin Paper Council, put it:

Yeah, constitutional risks. Lawmakers might want to check that out. Let’s help them.

How Strict Liability Works

Wisconsin’s Spills Law operates under a strict liability regime. That is to say, as Ruhland explained it, if you possessed or controlled a hazardous substance at the time of discharge—or “caused or contributed” to the discharge—you may be a responsible party. There’s no negligence or intent required, and the DNR does not need to prove negligence or intent.

Under current law, that liability applies uniformly—to municipalities, landfills, publicly owned treatment works (POTWs), industrial facilities, and transporters. It’s the same standard for everybody with no exemptions.

The amended PFAS bill, Ruhland observes, retains strict liability but abandons its uniform application by creating PFAS-specific exemptions for certain categories of entities. Specifically, it carves out broad exemptions for municipalities, publicly owned treatment works, landfills, certain land spreaders, and fire departments, while excluding industrial and manufacturing facilities from those protections.

“The mechanism for this distinction is a status-based test, asking whether an entity ‘has used or is using PFAS,’” Ruhland testified. “This test does not require that the exempted entity have discharged PFAS, nor does it require that PFAS associated with the non-exempt entity match the PFAS found in the environment. From a legal standpoint, this does not expand strict liability, but rather reallocates who may be subjected to that strict liability.”

Jordahl made the same point and underscored the political result of reallocation: “Responsibility under the spills law will be amplified and directed towards the businesses that do not receive exemptions, even though municipal facilities are just as likely to function as pass-through conduits for PFAS contamination.”

That’s problematic because, as Ruhland observed, under equal protection principles, government classifications must at least have a rational basis. If municipalities and industrial facilities are both passive receivers of PFAS through upstream consumer pathways, what is the rational basis for exempting one and not the other?

All of which, Jordahl testified, raises multiple concerns.

“First, this discrimination raises a significant constitutional concern under the concept of equal protection,” he testified. “A successful lawsuit raising an equal protection claim could result in the invalidation of the unfairly applied exemptions.”

In plain English, one class is shielded; another is exposed, and lawmakers may be crafting a bill that collapses in court.

Second, Jordahl argued, the logic of the amendment makes no sense as a policy matter.

“The failure to protect private waste disposal operations, and materials recycling and scrapping more broadly, is a significant policy issue,” he testified. “Excluded facilities may be driven out of business, which will make it more expensive and difficult for homes, businesses, and governments to dispose of waste of all kinds. Remaining facilities will be much more likely to reject waste or materials containing PFAS, making PFAS cleanup more expensive and difficult.”

The “circular economies” created by recycling, scrapping, materials recovery, and beneficial reuse—all activities that Jordahl says are environmentally beneficial and that divert materials from waste streams—would be undermined because of both actual and imagined fear of regulatory action against innocent landowners and passive receivers, he said.

“This will lead to further environmental harm,” Jordahl testified. “Manufacturers are an important part of this chain, as companies like paper mills, metal foundries, scrap services, and auto recyclers serve to recycle and repurpose many materials that might otherwise be landfilled.”

Detection Is Not Guilt

Beyond the constitutional and environmental questions, though they are inextricably linked, lies a deeper concern, namely, that those who did not cause the environmental harm may be punished for it anyway.

There’s a question inside all this talk about strict liability and “responsible parties”: If you possess or control the PFAS at the time of discharge, how are you innocent? That’s a question most people want to have clearly resolved and one that is too often misunderstood. Unfortunately, except for environmentalists, the answer is buried inside the structure of strict liability itself, and it’s quite like a dangling participle—guilt can easily attach to the wrong subject.

It’s the old temptation to pin the crime on the delivery driver because he was the last one seen in the neighborhood. After all, the case must be solved, a villain must be hanged, so why not pin it on the innocent if it will just make the whole thing go away, and we can get back to our bureaucratic impositions and environmental scams?

That thinking prioritizes administrative state convenience over fact-finding, and it should trouble anyone who cares about justice. When the state assigns responsibility to those who did not cause the harm simply because they are the most convenient target—not to mention the ones least liked by the bureaucracies—something fundamental has shifted.

It’s an understated point in this whole issue but it must be said: This bill, if amended, will inevitably punish the innocent, and that’s just not right as a matter of principle. What have we come to?

David Orcutt, an environmental manager representing paper mill operator Domtar, explained best how both innocence and possession can and do occur.

“Today, paper mills in the United States do not intentionally add PFAS to our processes,” he testified. “Low levels of PFAS may arrive at our facilities through incoming recycled fiber and other upstream raw materials and resources that we do not control, such as water withdrawn from Lake Nepco and the Wisconsin River.”

Their role is one of managing and treating what comes to them, not creating new PFAS, Orcutt said.

“Domtar is what is called a ‘passive receiver’ of PFAS,” he testified. “In fact, our industry phased out the intentional use of PFAS chemistry more than a decade ago, and long before that for the legacy long-chain PFAS compounds of greatest concern. Any PFAS that is present in our residuals or wastewater today is almost always tied to upstream contributions, not ongoing mill chemistry or operations.”

Orcutt testified that their facilities operate under comprehensive environmental permits, including wastewater, stormwater, air, and solid waste management, and that they sample regularly, report to state agencies, undergo inspections, and adjust operations as standards evolve.

“Because mills are point sources with rigorous monitoring, we are often the first place where PFAS can be detected—but detection does not mean the mill generated or introduced the PFAS,” he testified. “That distinction matters for policy that aims to fairly address environmental impacts and outcomes.”

Orcutt pointed to the land application of biosolids and certain paper byproducts as an example.

“This practice has historically been encouraged by regulators because it recycles nutrients and organic matter back into soils, reduces reliance on synthetic fertilizers, keeps valuable materials out of landfills, improves soil structure, and reduces greenhouse gas emissions associated with disposal,” he testified. “Land spreading was adopted because it aligned with environmental and agronomic goals supported by farmers, regulators, agronomists, and soil scientists—not as a way to avoid oversight.”

Practically, Orcutt said, proposed spills-law changes would narrow the universe of parties who would be considered responsible for PFAS and leave manufacturers as one of the only categories not eligible for exemption.

The message to manufacturers is unmistakable, Orcutt said:

Sadly, in Wisconsin now, this is what some lawmakers are calling compromise.

The bottom line is, PFAS contamination in Wisconsin is largely the result of historical firefighting foam use and biosolid land application, practices that were legal and often encouraged at the time, as Orcutt observes. The DNR did not even regulate PFAS in permits until relatively recently, but now lawmakers propose to inoculate certain favored constituencies while concentrating liability on industrial facilities that did not originate contamination.

That is not environmental accountability, and it’s not even close.

Those harms are not policy abstractions but will play out in the real world, where many paper mills have been forced to shut down. Mark M. Kjorlie, a retired paper industry leader and engineer, described walking around shuttered paper mills in many declining communities in central and northern Wisconsin.

“Over the past two decades, Wisconsin has seen the closure of several pulp and paper mills in communities, such as Brokaw (now the Village of Maine), Kimberly, Niagara, Park Falls, and Wisconsin Rapids due to market conditions, operational challenges, and regulatory requirements,” Kjorlie testified:

In the case of Brokaw, Kjorlie added, it no longer exists, having dissolved into the village of Maine after the mill closed. Follow these trails of tears, and it is very clear that it’s not just big firms and major industries that would be impacted but service arteries and small businesses and main streets and entire communities.

Decades ago, Wisconsin’s paper industry employed more than 40,000 workers. Today, direct paper manufacturing employment is closer to 8,000. Punitive measures lacking logic and due process are the last thing these industries and these communities need.

The “Use” Trap

There are other problems with the substitute amendment. As WMC’s Jordahl pointed out, the list of entities that are not exempt under any circumstances is so broad that it will ensure that “virtually no business or manufacturer, no matter how benign their process or operation is, will be eligible for an exemption.”

Then, too, Jordahl asked: What exactly does it mean to use PFAS in a process or operation?

It’s a great question, and important, too, because it could factor in how the DNR interprets the rules of the process down the road.

“There is no such thing as a vehicle or electronic device that does not use a fluorinated compound (i.e., a PFAS),” he testified. “So, if an industrial, manufacturing, or commercial facility has people using vehicles or cell phones onsite, would that invalidate the facility’s exemption? Similarly, most refrigerants contain fluorinated chemistries. Would the use of a refrigerator in an office building prevent that business from obtaining an exemption?”

In addition, Jordahl testified, the phrase “caused or contributed to a discharge” is unlimited, and so it is unclear as to whether a commercial facility could be held responsible for indirect, downstream contributions, such as sending wastewater to a POTW that later applies biosolids to land, even if the commercial facility did not intentionally use PFAS.

“Also, a ‘pass-through’ entity of any kind would apparently lose its exemption under this exception,” he testified.

And he asked more questions: What is the policy justification for treating commercial and industrial/manufacturing facilities differently? Or for carving out landspreading of industrial byproducts? Or for discriminating between municipalities and businesses conducting the same activities?

None of those questions have really good answers in the substitute amendment, but here’s one that does: Is statutory ambiguity with billion-dollar consequences really good governance?

Sharp as a blade

Finally, environmental advocates argue that the substitute amendment “strikes the right balance.” Well, sure, but only if you’re trying to stay steady so the guillotine won’t miss.

Clean Wisconsin claims it “ensures responsible parties are held responsible while allowing passive receivers to qualify for liability exemptions,” but the definition of “passive receiver” is status-based rather than causation-based.

Municipal landfills are deemed passive receivers while industrial facilities that receive recycled materials often are not. The amendment protects the former and excludes the latter. If the goal is to protect innocent actors, exemptions should be based on causation, not ownership status. Their argument is as politically contaminated as the water they claim they can’t drink.

What’s more, environmentalists avoid the real solution—though, to be fair, so has everyone else in the legislature and in the governor’s office.

The truth is, the choice is not between the substitute amendment and inaction. The $125 million can be released. Community grants, airport remediation, and well compensation can move forward. None of those require rewriting the Spills Law in a way that discriminates against the private sector.

So it would seem to be a no-brainer for the legislature and the governor to quit playing games and fund those elements.

If they want to protect innocent landowners, too, they could tie liability to actual causation. On the other hand, if they want to shield government entities while isolating and targeting the private sector, pass the substitute amendment.

In its testimony, the Wisconsin Paper Council offered a clear and reasonable path forward:

“None of the PFAS funding, testing, mapping, well-compensation, or research components depend on changes to [the spills law],” Ruhland testified:

That is the sensible, conservative solution. Do not pick winners and losers.

Compromise does not require surrender, and Republicans should know the difference.