Citing “national and state dialogue” on risks posed by emerging contaminants, including per- and polyfluoroalkyl substances (PFAS), the Wisconsin Department of Natural Resources (WDNR) recently announced changes to its administration of the Voluntary Party Liability Exemption (VPLE) program.
On January 4, 2019, the Wisconsin Department of Natural Resources (WDNR) announced an “interim decision” under which parties who voluntarily undertake cleanup of contaminated properties will receive only partial relief from future liability for historic site contamination.
Under Wisconsin’s VPLE program, a party may voluntarily remediate contaminated properties and obtain a VPLE Certificate of Completion from WDNR exempting that party from future liability for historic site contamination. For sites where there are no other responsible parties who could address historic site impacts, the issuance of a Certificate of Completion effectively transfers liability to the state to cover cleanup costs for potential threats that were not identified during the voluntary cleanup. Investigations conducted pursuant to the VPLE program are normally very comprehensive, given the workings of this statutory exemption. Since 1995, WDNR reports that is has issued 186 Certificates of Completion. Eighty-three voluntary parties are currently pursuing a Certificate of Completion.
In light of increasing awareness of risks posed by PFAS and other emerging contaminants, the Department announced that it will, as an interim measure, offer parties only a “substance specific” Certificate of Completion covering those individual hazardous substances that have been investigated as part of the VPLE investigation. WDNR will not offer a Certificate of Completion that covers all potentially hazardous substances, including substances that were not investigated but which could be discovered in the future.
“The DNR is aware that the fate and transport of PFAS and site characterization for PFAS are complicated by the number and diversity of substances involved, their frequent occurrence in complex mixtures that can change over time, and by the variety of PFAS source material,” the WDNR wrote in its announcement. “The department would be remiss in its responsibility to protect public health and safety, and serve as good stewards of state taxpayer dollars, if it issued a Certificate of Completion for PFAS contamination that was not sampled given the national and state dialogue on this concern.”
The WDNR’s interim decision does not affect properties that have already received a Certificate of Completion.
Receiving liability exemption for only specific substances represents a significant departure from the way the VPLE program has been historically administered and removes a significant incentive for voluntary parties to undertake costly site remediation efforts. While WDNR’s recent announcement is characterized as an “interim decision,” the Department did not indicate when it would announce a long-term strategy with respect to PFAS and emerging contaminants under the VPLE program.
