By Shereen Siewert
Wausau will explore a lawsuit to identify polluters and recover costs for cleaning up the city’s drinking water, joining in the thousands of legal challenges nationwide addressing decades of PFAS contamination.
The Wausau City Council on Tuesday voted unanimously to move forward, with one member abstaining.Dist. 11 Alder Chad Henke, who is an employee at 3M, did not enter closed session and recused himself from the vote.
The company, which has a manufacturing plant in a west-side neighborhood adjacent to the Wisconsin River, has been at the center of the PFAS fight in recent years in communities throughout the country.
The council went into closed session after a presentation by Stephen Aquario, of counsel with Napoli Shkolnik, PLLC. “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.
Other Wisconsin municipalities have filed similar lawsuits that seek to recover cleanup costs. In 2021, for example, the City of La Crosse claimed products containing PFAS chemicals caused contamination of public and private wells in their lawsuit, which was filed against nearly two dozen chemical companies including 3M.
But city officials are facing their own criticism over a failure to act earlier to protect the public. City documents obtained by Wausau Pilot & Review show that some officials were even aware that the city would need to address toxic chemicals in drinking water while a new treatment facility was being planed, but did not inform the public.
A review of Wausau Water Works Commission agendas shows that members were advised in August 2019 that the city had been asked by the DNR to sample water for possible contaminants. But commission members were told that “wastewater organizations have recommended that we not test at this time.”
And minutes from an Oct. 1, 2019 Water Works Commission meeting show that Public Works Director Eric Lindman downplayed the risk by telling commissioners that “our history of testing is anywhere from 8-15 parts per trillion” – despite having June 2019 results that showed levels ranging from 18 to 27.5. Lindman later defended the assertion by saying he was referring to individual compounds, rather than combined compounds. Unclear is why he would have done so, as the DNR referred to the federal 70 ppt level and the state 20ppt level as combined PFAS, not individual toxins.
The Wausau Water Works Commission last year approved implementing granular activated carbon (GAC) technology in city’s filtration system in response to PFAS discovered in all six of the city’s drinking water wells. The cost to taxpayers will be in the millions.
“The use of these chemicals is so widespread that it will be an issue in every almost state at some point,” Aquario, who presented at the “PFAS in Wisconsin” collaborative workshop on May 2, told Wausau Pilot & Review. “The cost of cleanup should not be the responsibility of the people who live in these communities.”
Now, the city will need to investigate the source of the contamination, which Aquario said could include existing industries operating in Wausau or those that operated in the past.
Identifying responsible parties is central to the legal strategy of municipalities seeking to recover PFAS removal costs, but doing so is no easy task. Still, 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.
Government regulators have filed dozens of suits seeking compensation and remediation for alleged PFAS contamination. Minnesota’s Attorney General filed one of the earliest such cases against chemical manufacturers, seeking $5 billion from 3M for harm to drinking water and the environment in the Twin Cities metropolitan area. In 2018, 3M settled the case for $850 million without conceding liability.
Late last year, California Attorney General Rob Bonta announced that California was suing eighteen companies for “staggering” damage caused by PFAS, as well as the fraudulent transfer by some defendants alleged to have attempted to shield assets from potential financial liabilities. Meanwhile, the EPA recently announced claims against Inhance Technologies for allegedly violating the Toxic Substances Control Act by releasing PFAS into plastic containers that later contaminated pesticides.
Dist. 4 Alder Doug Diny asked Aquario Tuesday whether the federal government would also be a target of the investigation. But Aquario said the government has “stepped up” and will be providing billions of dollars in what is now a problem that will cost trillions of dollars nationwide to address. The federal government, he said, will not be a target.
Following closed session, Dist. 1 Alder Carol Lukens put forward a motion to engage Napoli Shkolnik, PLLC “to represent the interests of the City of Wausau, in any legal proceeding, on a contingent fee basis, and to do all things necessary in that representation to seek to recover from the responsible parties, the costs to the City associated with the remediation of PFAS.” Council President Becky McElhaney seconded the motion, which was approved 10-0.
What Are PFAS? According to the National Institute for Environmental Science:
Per- and polyfluoroalkyl substances (PFAS) are a large, complex group of synthetic chemicals that have been used in consumer products around the world since about the 1950s. They are ingredients in various everyday products. For example, PFAS are used to keep food from sticking to packaging or cookware, make clothes and carpets resistant to stains, and create firefighting foam that is more effective.
PFAS molecules have a chain of linked carbon and fluorine atoms. Because the carbon-fluorine bond is one of the strongest, these chemicals do not degrade easily in the environment.
How Are People Exposed to PFAS?
Human exposure to PFAS is widespread but variable by geography and occupation. PFAS are used in the aerospace, automotive, construction, and electronics industries. Over time, PFAS may leak into the soil, water, and air.
People are most likely exposed to these chemicals by consuming PFAS-contaminated water or food, using products made with PFAS, or breathing air containing PFAS. Because PFAS break down slowly, if at all, people and animals are repeatedly exposed to them, and blood levels of some PFAS can build up over time.
Why Be Concerned About PFAS?
Multiple health effects associated with PFAS exposure have been identified and are supported by different scientific studies. Concerns about the public health impact of PFAS have arisen for the following reasons:
- Widespread occurrence. Studies find PFAS in the blood and urine of people, and scientists want to know if they cause health problems.
- Numerous exposures. PFAS are used in hundreds of products globally, with many opportunities for human exposure.
- Growing numbers. More than 9,000 PFAS have been identified.
- Persistent. PFAS remain in the environment for an unknown amount of time.
- Bioaccumulation. People may encounter different PFAS chemicals in various ways. Over time, people may take in more of the chemicals than they excrete, a process that leads to bioaccumulation in bodies.
Because there are many types of PFAS chemicals, which often occur in complex mixtures and in various everyday products, researchers face challenges in studying them. More research is needed to fully understand all sources of exposure, and if and how they may cause health problems.