DNR Interim Decision on Voluntary Party Liability Exemption (VPLE) Program and Emerging Contaminants

Wisconsin’s Voluntary Party Liability Exemption (VPLE) program allows a person to clean up a property and receive an exemption from future liability for historic contamination. Once cleanup is complete, the VPLE Certificate of Completion (COC) provides liability protection for the owner of the property. It is also transferrable to future owners. Since 1995, the DNR has issued 186 COCs. Eighty-three voluntary parties are currently pursuing a VPLE COC.

Recent concerns over emerging contaminants, particularly per- and polyfluoroalkyl substances (“PFAS”) chemicals in Wisconsin and nationally have prompted the DNR to evaluate the potential for historical discharges of PFAS and other emerging contaminants at properties enrolled in the VPLE program that are pursuing a COC.

As part of this evaluation, the DNR reviewed the most recent national guidance documents on the types of materials, industries, and manufacturing sectors, that historically used PFAS chemicals, from both the U.S. Environmental Protection Agency (EPA) and the Interstate Technology and Regulatory Council (ITRC). The DNR also requested supplemental site investigation information for properties enrolled in VPLE.

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. Based on these concerns, the DNR has concluded that the risk of a PFAS release cannot be ruled out at a VPLE property without confirmation testing.

A VPLE Certificate of Completion, once issued under Wis. Stat. § 292.15(2), transfers to state taxpayers an expectation to remediate health and safety threats that were not identified if the department determines that there is a priority concern, and there are no other responsible parties to address the potential or actual threat posed. 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 interim decision is to offer a voluntary party a COC for the individual hazardous substances that are investigated after all the VPLE requirements have been met. DNR will not issue a COC that covers all potential hazardous substances, including substances that were not investigated but could be discovered in the future. The agency has the legal authority to offer this interim approach under Wis. Stat. § 292.15(2)(am).

This interim decision does not affect properties that have already received a Certificate of Completion.

Questions on hazardous substance specific COC may be directed to Christine Haag, Brownfields and Outreach Section Chief.

 

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