By Shereen Siewert | Wausau Pilot & Review

As the national debate rages on about who should shoulder the burden of preventing contamination of waterways with toxic PFAS chemicals – and the costs involved – Wausau will consider its next steps from a legal perspective.

An attorney who specializes in governmental litigation will speak Tuesday to members of the City Council about holding polluters accountable for PFAS contamination in Wausau’s drinking water.

Stephen Aquario, of counsel with Napoli Shkolnik, PLLC, is slated to speak at the start of Tuesday’s Wausau City Council meeting. “Of counsel” refers to an attorney who often has a relationship with a law firm or an organization but is neither an associate nor partner.

Aquario, who will be appearing Tuesday in person, told Wausau Pilot & Review he will bring several options to the table for the city to consider and hopes the discussion will highlight the urgency and seriousness of the issue. As an attorney, Aquario has been at the forefront of holding polluters accountable for years and said he believes PFAS are the greatest threat to the quality of our drinking water in a generation.

“The use of these chemicals is so widespread that it will be an issue in every almost state at some point,” said Aquario, who presented at the “PFAS in Wisconsin” collaborative workshop on May 2 in Wausau. “The cost of cleanup should not be the responsibility of the people who live in these communities.”

Mayor Katie Rosenberg made an announcement about the appearance on social media last week.

“Over the last year and a half, the City of Wausau has been approached by a lot of law firms and organizers who want to work with us on our PFAS situation,” Rosenberg’s Facebook post reads. “I even talked to someone who works with Erin Brockovich. Now, I think we’re finally ready to have a conversation with one of those law firms on next steps for Wausau.”

Rosenberg, in her social media post, said she asked Aquario to brief the council and the public on the work his firm is doing so far to address these issues. Rosenberg said Aquario and his firm have been involved in large tort settlements in the past, such as action taken against opioid manufacturers.

Per-and Polyfluoroalkyl Substances, known as PFAS, have been used in the production of Teflon, Scotchgard, cardboard packaging and other products since the 1960s. Manufacturers stopped using the chemicals in 2006, but because they don’t deteriorate, these potentially harmful chemicals pose a long-term risk. In addition the U.S. Department of Defense has long mandated use of a particular firefighting foam that contains chemicals in the PFAS family.

Thousands of lawsuits, 3M a common target

Corporations nationwide including 3M Co., Chemguard Inc., National Foam Inc., and Dynax Corp. are facing a multitude of lawsuits related to the toxic chemicals. E.I. du Pont de Nemours was named as a defendant in more than 6,100 PFAS lawsuits since 2005, a Bloomberg Law analysis found. But no company’s degree of legal jeopardy may be rising faster than that of 3M, which operates a plant in Wausau that employs roughly 100 people. 3M was named in an average of more than three PFAS-related lawsuits a day last year, according to the analysis. The company’s most recent annual report dedicated more than 15 pages to its legal exposure from PFAS.

Total PFAS liabilities could reach $30 billion in a “worst-case scenario” for 3M, according to some estimates.

“It’s looking like 3M is going to bear the most liability, if there is any,” Bloomberg Intelligence analyst Holly Froum said. It becomes more apparent as the court splits defendants into the different roles they had in manufacturing PFAS-containing products, she said.

“Some of them only made surfactant and some were the finished product manufacturers. 3M did everything.”

City Attorney Anne Jacobson told Wausau Pilot & Review no decisions have been made and no specific source of contamination has been identified.

“Since the Council has not discussed this topic yet, and has not decided to litigate, nor with any particular firm, it is premature to identify potential defendants in a suit brought by the City of Wausau,” Jacobson said.

One 3M employee is also a Wausau alderman. Chad Henke represents Dist. 11. Typically, employees of companies that could be involved in litigation with the city recuse themselves from such discussions. Jacobson said that decision is made personally by the alder either on his or her own own or upon the advice of counsel, per council rules.

Safe level is “near zero,” scientists say

The Environmental Protection Agency in June announced that PFAS are far more toxic than previously thought, prompting a sharp shift in advisory levels for public health.

Exposure to 1-4 Dioxane, PFOA, and PFOS has been linked to kidney cancer, testicular cancer, pre-eclampsia, thyroid disease, developmental defects in fetuses, liver tissue damage, and immune system impairments, among other potentially life-threatening conditions, EPA and health officials say.

Radhika Fox, the EPA’s assistant administrator for water, announced the proposed new contaminant levels at the Third Annual National PFAS Meeting in North Carolina. The meeting was attended by scientists and community members from areas dealing with PFAS contamination who applauded when the announcement was made.

The agency sent four draft scientific documents on the two most commonly-cited “forever chemicals,” PFOA and PFOS, to its Science Advisory Board, including a finding that PFOA likely causes cancer, even at much lower levels than earlier advisories warned. The more than 400 studies cited prompted the EPA to lower interim health advisory levels for lifetime exposure from a combined 70 parts per trillion to .004 ppt for PFOA and .02 ppt for PFOS.

What is a safe level of PFAS in drinking water?

“Near zero. Near zero,” Fox said, according to a News & Observer report.

After discovering Wausau’s drinking water showed PFAS above recommended levels in all the city’s wells, officials this year began working toward a solution to add technology to the new roughly $120 million water treatment facilities now being built that would reduce levels to below 20 ppt, a level that would match state health officials’ recommendations. Health advisories are not regulatory and are not enforceable, but are intended to provide guidance to state regulators and health officials.

So far the Wisconsin Dept. of Natural Resources has declined to adopt the advisory and instead set a regulatory standard at a much higher level for PFAS, 70 ppt, which may have contributed to skepticism about the severity of the situation in the city.

Last year, WSAU Radio’s Chris Conley called Dist. 3 Alder Tom Kilian an “alarmist” who is “hell bent on convincing people that the drinking water is not safe.” Conley also sharply criticized the Wisconsin Dept. of Health, which issued a letter in response to a request by Kilian that stated Wausau’s water posed a human health risk.

“I dare them to declare a public health emergency,” Conley said in his commentary, while questioning the need to spend money on remediation efforts. Conley previously criticized Kilian’s persistent efforts to test for contamination on west-side properties- efforts that resulted in DNR investigations and subsequent cleanup directives.

Kilian on Monday told Wausau Pilot & Review he was unaware that an environmental attorney would be making a presentation about potential litigation this week until the meeting packet came out.

In her Facebook post, Rosenberg said she heard from many residents who say it’s unfair that taxpayers are shouldering the burden for contamination cleanup.

“The end goal with this lawsuit is to recover some of those costs and put that money back into our water utility,” Rosenberg said. “Thanks to everyone who reached out.”

Litigation landscape

In recent years, PFAS litigation has expanded exponentially to include a wide range of new defendants including paper companies, packaging producers, fast food chains, refineries and other businesses. Traditional litigation tends to seek remediation and damages for alleged land and water contamination.

Often, communities or individuals who sue seek damages on the basis of negligence, trespass, nuisance, and products liability, along with actions under state and federal statutes.  These cases present substantial financial risks to defendants.  As just one example, late last year, an appeals court upheld an Ohio jury’s $40 million verdict for an individual cancer survivor, who claimed PFAS-contaminated water caused his illness.

Establishing or refuting a causal link between human harm and PFAS exposure is a central issue for contamination claims, where plaintiffs seek compensation for alleged health problems. In legal terms, causation refers to the relationship of cause and effect between one event or action and the result. It is the act or process that produces an effect.

That means, in a personal injury case, it’s not enough to show that the defendant was negligent, according to Stanford University’s legal philosophy.

Causal issues also play a role in cases in which property owners seek remediation for alleged PFAS contamination. In this case, plaintiffs who sue are required to show the defendants were responsible, at least in part, for the alleged discharge. This has met with mixed success, particularly given the complex causal chain between potentially responsible parties.

But, scientists say, multiple lines of evidence can indeed be pieced together to identify the sources of the PFAS that are identified—whether it be in the water, sediment, or soil. EPA officials say doing so will require a multidisciplinary expert team that covers chemistry, hydrogeology, and fate and transport.

What about Wausau?

The council is set to enter into closed session Tuesday to discuss their options, which could include a potential lawsuit to recover PFAS removal costs. Aquario said the city could consider joining in a class action or filing an individual lawsuit of its own.

To identify polluters responsible for PFAS contamination in Wausau’s water will require significant testing, but to date no such testing has been reported despite the city’s previously identified Superfund and Brownfield sites and their proximity to contaminated wells and manufacturing operations.

Jacobson said it is possible no action will be taken following closed session. 

“As always, citizens have a right to address the Council under their rules, both at the beginning and end of the Council meetings,” Jacobson said. “The public will be kept informed about any actions taken by the Council.  Whatever decisions the body makes, and whatever the body directs the staff to carry out, we will implement.”

From the EPA: PFAS explained

EPA is committed to providing meaningful, understandable, and actionable information on per- and polyfluoroalkyl substances – known as PFAS – to the American public. The information provided here is intended to explain some of the important background information needed to understand the details of specific actions EPA takes to address PFAS, and other emerging events related to PFAS. It covers the following topics:

  1. Our current understanding of the human health and environmental risks PFAS
  2. Increasing our understanding of the health risks from PFAS and how to address them
  3. Meaningful and achievable action steps that can be taken to reduce risk

What EPA Has Learned So Far

  • PFAS are widely used, long lasting chemicals, components of which break down very slowly over time.
  • Because of their widespread use and their persistence in the environment, many PFAS are found in the blood of people and animals all over the world and are present at low levels in a variety of food products and in the environment.
  • PFAS are found in water, air, fish, and soil at locations across the nation and the globe.
  • Scientific studies have shown that exposure to some PFAS in the environment may be linked to harmful health effects in humans and animals.
  • There are thousands of PFAS chemicals, and they are found in many different consumer, commercial, and industrial products. This makes it challenging to study and assess the potential human health and environmental risks.
  • Learn more about our current understanding of PFAS.

What We Don’t Fully Understand Yet

  • EPA’s researchers and partners across the country are working hard to answer critical questions about PFAS:
    • How to better and more efficiently detect and measure PFAS in our air, water, soil, and fish and wildlife
    • How much people are exposed to PFAS
    • How harmful PFAS are to people and the environment
    • How to remove PFAS from drinking water
    • How to manage and dispose of PFAS
  • This information will help EPA and state, local, and tribal partners make more informed decisions on how best to protect human health and the environment.