The Wisconsin Department of Natural Resources (DNR) has issued an interim decision expanding voluntary parties’ future liability for PFAS and other hazardous materials.
DNR’s Voluntary Party Liability Exemption Program (VPLE), in accordance with Wis. Stat. § 292.15, allows property owners to clean up properties and then receive exemptions from liability for historic contamination on the properties. DNR issues a Certificate of Completion when cleanup is complete. With a Certificate of Completion, property owners are no longer liable for historic contamination.
The recently issued decision states that DNR will not issue Certificates of Completion covering liability for substances discovered in the future that were not originally investigated in the VPLE process. The decision names PFAS (per- and polyfluoroalkyl substances) as a particular concern, stating that PFAS cannot be ruled out on a property without confirmation testing.
DNR cites the statutory authority for this decision as Wis. Stat. § 292.15(2)(am), which allows the department to issue a Certificate of Completion stating that a property is only partially cleaned up. Under the statute, the Certificate of Completion for a partial cleanup allows DNR to have access and undertake activities on the property to address problems with remaining hazardous substances. However, it is not entirely clear that the DNR has the authority to make this policy change based on a plain reading of the statute.
While the interim decision does not affect properties that have already received a Certificate of Completion, the new enforcement decision exposes those properties pursuing certificates to broad liability in the future.