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Settlement announced in lawsuit over PFAS contamination at Brighton-area facility

A settlement has been reached with Fowlerville-based Asahi Kasei Plastics North America, Inc. over contamination at its former Brighton-area facility.

The deal, announced Monday by Michigan Attorney General Dana Nessel, addresses the release of PFAS (per- and polyfluoroalkyl substances) at the company’s former Thermofil factory on Whitmore Lake Road in Green Oak Township, which was the site of a large fire in 1997.

At the time of the fire, that facility was used for plastic compounding that formed resin with flame-retardants and other materials before being turned into pellets.

According to a press release, the settlement requires Asahi to investigate PFAS in soil, groundwater, and surface water discharged from the former Green Oak facility, and to undertake response actions to address levels that exceed state criteria. 

“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, which was filed Monday with the Livingston County Circuit Court, requires Asahi to investigate PFAS released into soil, groundwater, and surface water from Whitmore Lake Road site. 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.”

However, Monday’s announcement was not met with universal approval.

Bob Potocki of Brighton Township is a member of Michigan’s PFAS Action Response Team Citizen’s Advisory Workgroup (CAWG) and said in general EGLE is not transparent in how it notifies the public about contamination.

“EGLE actively resists disclosing test results,” said Potocki. “See the Traverse City situation.  Also the Livingston ground beef where EGLE knew PFAS was in the sludge spread on the field for 5 years.”

The Traverse City situation refers to an investigation by the Traverse City Record-Eagle into an 8-month delay by state environmental regulators in letting residents living near the area’s airport and Coast Guard station know about PFAS found in residential wells.

The ground beef reference was to PFAS contamination that Jason Grostic of Hartland Township blamed on Tribar Manufacturing last year. In January of 2022, after tests found elevated levels of PFAS in the meat he sold, the state of Michigan issued a consumption advisory against beef from Grostic’s farm.

A lawsuit says Grostic’s reputation was “destroyed overnight” by the state’s consumption advisory, which was the result of wastewater biosolids that came from the city of Wixom’s wastewater treatment plant and were used on his farm to stimulate the growth of plants used to feed the cattle.

Potocki claims state officials “appear to have known” the beef was tainted for more than a year prior to any public announcement.   

“EGLE’s new PFAS rules only require public water supplies to disclose contamination after long periods of monitoring,” he said. “Again,  there has been a 2 year debate at (CAWG) regarding public notice. There is a very aggressive program to immediately announce beach contamination, yet the regulators suppress disclosure in what is described as efforts to appease tourism and real-estate interests.”

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.

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.

Meanwhile, state officials have appealed a ruling last November that invalidated Michigan’s  regulations of PFAS in drinking water and groundwater that were some of the strictest in the nation. The ruling came in a lawsuit filed by Minnesota-based 3M Corp., one of the largest manufacturers of PFAS compounds, and said EGLE failed to adequately consider the costs businesses might incur as a result of the tougher regulations.

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