By Mickey Schommer
BROWN COUNTY – The member communities of the Central Brown County Water Authority (CBCWA) are opting out of a class-action lawsuit against 3M and DuPont.
The two companies are offering a class-action lawsuit settlement to protect themselves against legal liability concerning PFAS (per- and polyfluoroalkyl substances), as two primary manufacturers of products containing these substances.
The CBCWA does not work directly with either company, however, the member communities are choosing to opt out of this lawsuit because of the indirect impact that 3M and DuPont pose for the future, said CBCWA General Manager Nic Sparacio.
PFAS are found in many products, even the human body.
“Firefighting foam seems to be the culprit for some of the worst known contaminated areas in the state,” said Sparacio. “AFFF — aqueous [film] forming foams — which are often used for airports, fires that happen at airports or military bases. They’re very common; which is why they can be found almost everywhere in some concentrations, even in most peoples’ bodies because they show up in our clothing. They show up in our cookware, you know; there’s a whole list of places where these products have been used for their water resistance, their heat and stain resistance, those kinds of things.
“By not being in the settlement, we preserve the opportunity to pursue legal action on our own.”
Currently, the CBCWA member communities have not seen a significant impact of PFAS in the sampling that has taken place; however, if this were to rise, they have protected their right to pursue legal action.
“If we were to receive settlement funds, what would we spend it on? The utilities that need those funds are those that need to install additional water treatment to reduce PFAS concentrations and that’s not something that we anticipate doing,” Sparacio said.
In addition to protecting the right to legal action, Sparacio identified other reasons for opting out of the lawsuit: the strange nature of the settlement, its timing and its health impact.
“What’s strange about it? It’s an opt-out class-action settlement. In other words, there’s an assumption that there’s widespread contamination and that every single water utility is going to be included in it unless they specifically opted out. That’s not normal. Usually, it’s the other way around,” noted Sparacio.
“The timing is also poor because we just started to learn from a nationwide perspective where the impacts of PFAS are. Water utilities have sampled for these things in the past, but the methods of sampling are much more sensitive now and water utilities have just started to use those more sensitive tests within the last year or so. We’re just starting to learn where PFAS is.
“There’s some research that’s happened and we want to respect that and there’s more research that’s needed, especially on these lower concentrations that are being found. How concerned should we be about those lower concentrations? Currently, there’s no federal regulation for the amount of PFAS in drinking water. That’s still in the works.”
The CBCWA purchases treated water from Manitowoc, which is the primary source of water for the member communities.
The communities are not directly responsible for the water treatment, therefore Sparacio noted that “The city of Manitowoc had an important decision to make on the class-action lawsuit as it applies to their water treatment plan and future costs they might have there.”
“Water utilities still have their groundwater wells — their old water supply — that are not used anymore. They’re available for use as an emergency backup,” Sparacio added. “It’s good quality water as well, just not as good of quality as what we receive from Manitowoc.”
Combined with the unique nature of this lawsuit, the settlements include sweeping legal releases.
“For those municipalities that stay in the class-action lawsuit, they are releasing 3M from a broad list of responsibilities related to any past use of that AAAF firefighting foam, any land-spreading of wastewater solids that may have PFAS in them; there’s quite an extensive list. It’s a very broad release; they’re giving up a lot of rights,” said Sparacio.
The CBCWA communities recognize the rights they will lose if they do not deliberately opt out of the settlement; therefore, the seven municipalities — Allouez, Bellevue, Denmark, De Pere, Howard, Lawrence and Ledgeview — have withdrawn from the class-action lawsuit settlement.