Nessel reaches $3.2M settlement in first PFAS case

The first settlement has been reached in Attorney General Dana Nessel’s ongoing legal fight against companies that have released toxic “forever chemicals” across Michigan, amounting to more than $3.2 million plus future costs incurred by cleanup efforts.

Nessel filed an October 2020 lawsuit in circuit court alleging that Asahi Kasei Plastics North America, a plastic resin manufacturer based in Fowlerville, had released illegal levels of per- and poly-fluoroalkyl substances (PFAS) into a swath of land near Brighton.

A judge ruled via consent decree Monday that Asahi must investigate PFAS discharged from their former facility into the soil, groundwater and surface water, then perform response actions to address chemical levels that exceed state limits.

Within 60 days (by March 31, if the consent decree filed Monday is entered into court on the same day), Asahi is also required to pay $175,000 to cover the state’s litigation costs related to the case, $2.4 million to plaintiffs’ counsel for their attorneys’ fees and $63,686.33 to the state for all past response activity costs.

The company will also have 60 days to pay $600,000 to cover all of the state’s future response activity costs, as well as the Michigan Department of Environment, Great Lakes and Energy’s (EGLE) costs to enforce the degree and all of the department’s future response activity costs going forward.

The ongoing costs will be periodically invoiced to Asahi by the state as they are incurred. They are required to be paid within 60 days of receipt.

Not including future payments, Asahi is required to pay about $3,238,686 by March 31.

“The agreed-upon framework for compliance at this site requires work under an enforceable schedule and is a favorable outcome for Michigan,” Nessel said in a statement Monday.  “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.” 

If Asahi fails to make full payment to EGLE by the set deadlines, interest will accrue until the costs are fully paid. For every failure or refusal to comply with any term or condition of the consent decree, the penalty per violation per day will begin at $250, then $750, then escalate to $1,500 after a month.

Asahi was one of 17 companies named in a major PFAS lawsuit Nessel brought in 2020. The case against Asahi was then separated out from the larger suit and moved to the Livingston County Circuit Court, where it has become the first case to reach a resolution.

There are six other PFAS cases still pending in state and federal 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,” Nessel said.  “I am pleased with this resolution, and I look forward to seeing the important investigation and work get underway.”  

Asahi’s plans to address PFAS at its old facility must be submitted to and approved by EGLE before they are carried out. Any work plans that are deemed of significant public interest may also be available for public comment before being approved.

“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[s] to work to identify, assess and address PFAS sites throughout the state, holding polluters accountable and protecting our state’s resources and people.”