Ahlstrom defendants challenge strict liability claim in Stella PFAS lawsuit

The four defendants affiliated with pulp and paper company Ahlstrom-Munksjo have come out swinging in defending themselves against a lawsuit filed by a group of Town of Stella property owners who allege the spread of PFAS-contaminated sludge/fibercake from the Ahlstrom-owned Rhinelander paper mill on local farmlands contaminated their drinking water.

On March 22, attorneys for Ahlstrom Rhinelander LLC, Ahlstrom NA Specialty Solutions LLC and Ahlstrom NA Specialty Solutions Holdings Inc., filed a motion to dismiss the plaintiffs’ sixth cause of action (strict liability/abnormally dangerous activity).

The case was filed in August 2023 in the U.S. District Court for the Western District of Wisconsin. At that time, there were six plaintiffs. In February, a second amended complaint was filed listing 43 plaintiffs.

Chemical giant 3M, which is alleged to have sold and supplied PFAS products to the Rhinelander mill, is also a defendant as is Wausau Paper, the former owner.

“At the Rhinelander facility, Ahlstrom and its predecessors used PFAS products manufactured by 3M. Ahlstrom then improperly disposed of PFAS-containing waste by spreading tons of this waste on farms in the Rhinelander area” causing extensive contamination of private well water, the plaintiffs contend.

PFAS (per- and polyfluoroalkyl substances) are a group of human-made chemicals used for decades in numerous products, including non-stick cookware, fast food wrappers, stain-resistant sprays and certain types of firefighting foam. These contaminants have made their way into the environment through accidental spills of PFAS-containing materials, discharges of PFAS-containing wastewater to treatment plants and certain types of firefighting foams, according to the DNR. These chemicals are known to accumulate in the human body, posing several risks to human health including certain cancers, liver damage and decreased fertility. 

Among the health issues listed by the named plaintiffs in this suit are kidney cancer, kidney disease, thyroid disease and high cholesterol.

Ahlstrom, Wausau Paper, and their predecessors “knew or should have long known of the dangers associated with PFAS in products made and used at the Rhinelander Paper Mill and knew that disposal of PFAS-containing waste on farmlands could lead to groundwater contamination,” the plaintiffs contend.

As a direct result of defendants’ alleged acts “plaintiffs’ properties have been contaminated, and will continue to be contaminated, with PFOA and PFOS,” they claim.

The Ahlstrom defendants’ brief in support of their partial motion to dismiss focuses on only one of the six causes of action included in the plaintiffs’ amended complaint. 

“In the complaint, among negligence and other common law claims, plaintiffs claim that land application of the Mill’s papermaking waste is an ‘abnormally dangerous activity’ giving rise to strict liability against Ahlstrom,” the defendants’ motion reads. “This claim fails as a matter of law.”

“The complaint does not contain factual allegations to show that land application of papermaking fibercake qualifies as an abnormally dangerous or ultrahazardous activity, as required to support a strict liability claim under Wisconsin law,” the defendants contend.

The defendants go on to allege there is a “critical difference between Ahlstrom’s alleged conduct and the limited types of activities that courts have found abnormally dangerous or ultrahazardous to justify imposition of liability without proof of fault.”

 For example, “the complaint does not (and cannot) allege facts demonstrating that land application of papermaking fibercake is an uncommon activity in Wisconsin; to the contrary, state regulations and facts alleged in the Complaint show that land application is regulated and permitted by the State. Nor does the Complaint allege facts showing that land application presents risks that cannot be eliminated through reasonable care, as required under the narrow doctrine of abnormally dangerous activity reserved for inherently dangerous activities such as the use of explosives, blasting, and pile driving.”

The brief also includes a recitation of the mill’s ownership history and use of PFAS products.

“The Rhinelander Paper Mill was established in approximately 1903 and was acquired by Expera Specialty Solutions, LLC, Ahlstrom’s alleged ‘successors in interest,’ in August 2013,” the brief states. “In approximately 2002, more than ten years before Expera acquired the Rhinelander Paper Mill, 3M phased out the production of PFOS. The Complaint alleges that Ahlstrom plans to completely phase out PFAS use by the end of 2023. The Complaint does not (and cannot) allege that Ahlstrom used PFOA or PFOS at the Mill.”

Repeatedly, the defendants note there is a “high bar” in Wisconsin tort law as to what qualifies as an abnormally dangerous activity. They also argue that the doctrine applies only when an activity itself is abnormally dangerous. The fact that a particular activity may involve potentially dangerous materials “does not suffice,” they insist.

“Under Wisconsin law, the doctrine of strict liability for harm caused by ‘abnormally dangerous activity’ is narrow,” the brief states. “Courts ‘apply the doctrine cautiously,’ recognizing that its application should not swallow negligence as the ‘baseline common law regime of tort liability.’”

When deciding whether an activity is abnormally dangerous, Wisconsin courts apply a multi-factor test. According to the brief, the factors include: “the “[a] Existence of a high degree of risk of some harm to the person, land, or chattels of others”; the “[b] Likelihood that the harm that results from it will be great;” the “[c] Inability to eliminate the risk by the exercise of reasonable care”; the “[d] Extent to which the activity is not a matter of common usage”; the “[e] Inappropriateness of the activity to the place where it is carried on”; and the “[f] Extent to which its value to the community is outweighed by its dangerous attributes.” 

Finally, the defendants cited a very recent decision in a PFAS contamination lawsuit in Maine.

“Just two months ago, a court dismissed a strict liability claim for abnormally dangerous activity premised on the disposal and land application of papermaking waste that contained PFAS,” they wrote. “Like the Amended Complaint here, the ‘gist of the complaint’ in (the Maine case) was ‘that PFAS is dangerous, but [PFAS] is a substance, not an activity.’ Because the (Maine) plaintiffs had not alleged that papermaking ‘separate and apart from the presence of PFAS’ was a dangerous activity, the court dismissed their strict liability claim. Further, courts routinely hold that the disposal or application of even allegedly hazardous substances is not an abnormally dangerous activity giving rise to strict liability.”

The courts have been cautious because a broader interpretation could lead to “virtually any commercial activity involving substances which are dangerous in the abstract” to be deemed “abnormally dangerous,” they added.

Stella, located approximately 10 miles east of Rhinelander, has been at the epicenter of PFAS-related investigations in Wisconsin since late 2022 when testing of several private wells showed very high levels of the dangerous chemicals in the drinking water.

Earlier this year, the DNR completed a preliminary assessment of the PFAS-contaminated lands in Stella and recommended the site for inclusion in the national Superfund inventory.

“The Town of Stella site was selected to move forward in the process based on the number of impacted wells and impacted surface water,” according to  John Sager, the DNR hydrogeologist who prepared the preliminary assessment report. 

Superfund, also known as the Comprehensive Environmental Response, Compensation, and Liability Act  or CERCLA, is a 1980 law that allows the EPA to clean up contaminated sites. It also forces the parties responsible for the contamination to either perform cleanups or reimburse the government for EPA-led cleanup work, according to the EPA website.

The Stella plaintiffs are represented by the Baron & Budd law firm of Dallas, a Louisiana-based firm and Crooks Law Firm of Wausau.

The Ahlstrom defendants are represented by Arnold & Porter Kay Scholer LLP of Washington D.C. and Michael Best & Friedrich LLP of Milwaukee. Wausau Paper and 3M have yet to file written responses to the lawsuit.

Heather Schaefer may be reached at [email protected].