AG Nessel Announces Landmark Settlement in First PFAS Case

LANSING – Michigan Attorney General Dana Nessel announced that a settlement has been reached in a lawsuit filed against Asahi Kasei Plastics North America, Inc. (Asahi) to address releases of PFAS (per- and polyfluoroalkyl substances) at Asahi’s former facility near Brighton, Michigan.  The settlement requires Asahi to investigate PFAS in soil, groundwater, and surface water discharged from their former facility, and to undertake response actions to address levels that exceed state criteria.   The Consent Decree was filed with the Livingston County Circuit Court on January 30, 2023, and will be effective upon entry by the Court.

“I started the PFAS Litigation project in 2020 to bring relief to communities impacted by PFAS contamination, and this settlement is another step in the right direction,” said Nessel.  “I am pleased with this resolution, and I look forward to seeing the important investigation and work get underway.”  

The Consent Decree (as signed by both parties) requires Asahi to investigate PFAS released into soil, groundwater, and surface water from its former facility on Whitmore Lake Road.  If concentrations that exceed state criteria are found, additional steps are required to cut off harmful exposures.  Asahi’s investigation and proposed work plans must be submitted to and approved by the Michigan Department of Environment, Great Lakes, and Energy (EGLE).  In addition, the Consent Decree provides that work plans that are of significant public interest can be made available for public comment prior to their approval.    

“The agreed-upon framework for compliance at this site requires work under an enforceable schedule and is a favorable outcome for Michigan,” said Nessel.  “This settlement reflects my promise to protect the public and the environment from the harmful impacts of PFAS and hold companies responsible for contamination.  My office and I will continue to pursue that goal, in court or cooperatively.”    

“EGLE is pleased with Attorney General Nessel’s work to help protect Michiganders from PFAS contamination and ensure the responsible party takes appropriate action to investigate and address hazardous releases,” said Dan Eichinger, EGLE acting director. “EGLE continue to work to identify, assess and address PFAS sites throughout the state, holding polluters accountable and protecting our state’s resources and people.” 

Asahi was one of the 17 PFAS defendants named in Attorney General Nessel’s first lawsuit against PFAS manufacturers filed in 2020 under a state-approved contract with Special Assistant Attorneys General (SAAGs) retained specifically to assist with complex PFAS litigation.  The case against Asahi was separated out from the larger suit and moved to Livingston County Circuit Court, where the case proceeded before Judge Michael P. Hatty.  There are currently six PFAS cases filed under the SAAG contract that are pending in both state and federal court, and the Asahi case is the first to be resolved. [i] 

In addition to the required investigation and response actions to address exceedances of PFAS criteria, the settlement requires Asahi to pay the State’s past and future oversight costs and costs of litigation, including the attorney fees of the SAAGs for this matter, which means that these costs will not be shifted to taxpayers. 

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[i]   Pending PFAS cases include Nessel v 3M, et al, (PFAS manufacturers) removed from Kent Circuit Court (No. 20-03366-NZ (Quist)) to Multi-District Litigation Case No. 3873 in U.S. District Court in South Carolina (Gergel); Nessel v Chemguard, et al  (manufacturers of commercial firefighting foam), pending in MDL No. 3873; Nessel v EI Dupont de Nemours, et al, (manufacturers of mil-spec firefighting foam), pending in MDL No. 3873; Nessel, et al v FKI Hardware, Inc., pending in Kent Circuit Court (No. 2022-09032-CE (Quist)); and Nessel v Domtar Industries, Inc.,  pending in St. Clair Circuit Court (No. 22-002604-NZ (Lane)).