Michigan Sues 17 Chemical Companies for PFAS Contamination
Michigan spends $25 million per year on finding PFAS contamination. Cleanup of the “forever chemicals” could cost multiples more of that amount.
While the state is trying to protect residents and the environment from the per- and poly-fluorinated compounds, now Attorney General Dana Nessel is targeting chemical companies - and the funding they could bring to solve the problem.
“Despite their explicit knowledge of the potential dangers of PFAS, they deliberately and intentionally concealed these dangers,” she said of the 17 companies the state sued on Tuesday.
They did that, she said, "to protect their profits.”
Michigan will be pursuing damages from the 17 chemical companies that it asserts is responsible for 74 known sites contaminated with PFAS, which travels in groundwater and surface water, affecting wildlife and drinking water. According to state data, at least 1.9 million Michigan residents are drinking water with some PFAS; another 2.5 million people on public wells haven’t had their water tested.
Without the lawsuit, said Gov. Gretchen Whitmer, the public will be left with the costs.
“Companies … must be held accountable,” she said. “Polluters must pay.”
Now that claim moves into a Michigan courtroom, as the state becomes one of just a handful to pursue damages against the sources of PFAS. It’s a move drawing support from environmental groups and some Democratic legislators, who say it’s a start toward highlighting the need to improve the state’s polluter pay laws.
The lawsuit asserts that the companies “deliberately concealed the dangers of PFAS and withheld scientific evidence.” Some made the chemicals. Some used them in products. Among each of them, the lawsuit says, they used them "in a way that they knew would contaminate natural resources and expose Michigan residents to harm.”
The list of companies include the three that testified before congress last fall as representatives explored the role of the businesses in contamination: 3M, DuPont and Chemours, created as a spinoff of DuPont.
Others named as defendants: Corteva Inc; Dyneon; Archroma; Arkema; AGC Chemicals Americas Inc; Daikin Industries; Solvay Specialty Polymers and Asahi Kasei Plastics North America, along with all of their entities. Several of them have operations in Michigan.
The lawsuit specifically excludes PFAS used on AFFF, or fire-fighting foam. That type of contamination is typically found near airports and military installations, including the former Wurtsmith Air Force Base in Oscoda.
It was filed in Washtenaw County, where PFAS was found in the municipal water supply in Ann Arbor in 2014. By 2018, a source had been discovered: Tribar, a metal plater in Oakland County, was sending it through a wastewater plant and into the Huron River, which is the source of 85 percent of the city’s drinking water.
The suit tackles head-on issues that confound legislators and public health officials when they attempt to regulate the chemicals: Accepting public-facing health research and the impacts of PFAS on people; the role of short-chain PFAS and precursors - the chemicals related to PFOS and PFOA, but touted as less-harmful; and the ability of chemical companies to hide or obscure what they know and when they knew it.
“Defendants possess—and have always possessed—vastly superior knowledge, resources, experience, and other advantages, in comparison to anyone or any agency, concerning the manufacture, distribution, nature, and properties of PFAS and PFAS-containing products,” according to the filing.
It also says that the defendants undermined any research or risks associated with PFAS, while at the same time making “partial and incorrect statements regarding the nature and impacts” of the chemicals.
"Defendants had a duty to disclose the truth and to act in accordance with the truth about PFAS.”
Information on dozens of the state’s contaminated sites is listed in the lawsuit, spanning the map of both peninsulas and touching community after community: Grand Rapids, Alpena, Manistee, Lansing, Saline. Some of the sites involve active businesses; some are long-closed. Some involve groundwater, while others have contaminated lakes and rivers, in some cases making their way to the Great Lakes.
The breadth of the problem prompted statewide water testing, which resulted in the shut-down of the municipal well in Parchment, near Kalamazoo. Residents there, like in Northern Kent County, Ann Arbor, Grayling and other areas wonder what years of consuming the chemicals mean for their health.
The lawsuit asks for compensation for natural resource damages; loss-of use damages; costs of investigation; costs of testing and monitoring; costs of providing water from an alternate source; costs of installing and maintaining an early warning system to detect PFAS before it reaches wells; costs of remediating PFAS from natural resources including groundwater, surface waters, soils, sediments, and other natural resources; costs of remediating PFAS contamination at release sites; any other costs or other expenditures incurred to address PFAS contamination and injury.
Former Gov. Rick Snyder in summer 2018 asked ex-Attorney General Bill Schuette to pursue litigation against 3M as state officials were recognizing just how widespread contamination reached in the state. At that time, known major sites included Northern Kent County and Oscoda. Lapeer Plating & Plastics had recently been identified as a polluter of the Flint River, and Ann Arbor’s levels were getting attention from the state.
“Because of the scale and the scope of this problem and the associated expenses, it is necessary to pursue legal action against those who continued to produce and market these products, even once they were identified as the cause of this environmental contaminant," Snyder said at the time.
Schuette didn’t act, then the idea continued to take shape after he lost the 2018 election to Gov. Gretchen Whitmer.
In May 2019, Nessel’s office issued a request for proposals from law firms willing to take on the litigation challenge - but without billing the state.
By the June 5 deadline, 15 firms had replied. Five were chosen as semi-finalists to make presentations, and two firms combined efforts during that process. The contract was announced on October 17.
While many states are considering PFAS litigation, Michigan is among the early filers. They all follow Minnesota, which sued 3M and won an $850 million settlement in early 2018.
Michigan’s legal strategy should benefit the state, said Sean Hammond, policy director at the Michigan Environmental Council. Many contamination issues end up focusing on containment instead of cleanup due to the costs and weak polluter pay provisions in the law.
“We continue to see the taxpayers of Michigan ... having to pay for their own drinking water to be clean, instead of the company that polluted it,” Hammond said.
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