Source: https://www.mlive.com, April 23, 2019
By: Garret Ellison
In a class action lawsuit filing, Georgia-Pacific is pointing the finger at Michigan regulators and several businesses it says may be at fault for the Parchment water contamination emergency, which affected 3,000 people and has since forced the suburban city to hand its municipal system over to neighboring Kalamazoo.
In the April 19 filing, Georgia-Pacific alleges the Michigan Department of Environmental Quality, or DEQ, (now renamed EGLE), “failed to repair and operate a vandalized lift station needed for leachate collection” at a landfill blamed for the PFAS in Parchment water.
Georgia-Pacific’s “nonparty at fault” list also named Cooper Township, which assumed ownership of the landfill in 2011 after the bankruptcy of Crown Vantage Corp. Named private sector parties include Hercules Inc., Hydro-Extrusion North America and AbsolutAire.
The class action case was filed in November against Georgia-Pacific and Minnesota giant 3M in U.S. District Court in Grand Rapids. Three Parchment residents, David Dykehouse, Kristina Boskovich and Elizabeth Hamblin, are seeking financial compensation and funding to evaluate the health of others exposed to PFAS.
Georgia-Pacific, a Koch Industries subsidiary, formerly owned the Parchment paper mill where food packaging was manufactured using PFAS chemicals made by 3M. The chemicals have been found at high levels in groundwater near the old mill and an adjacent industrial waste landfill. High PFAS contamination levels were found in Parchment municipal wells in July 2018.
Georgia-Pacific is paying for a local hydrogeological investigation. It claims there’s “no direct link” between contamination in Parchment’s municipal wells and the landfill, which closed in 2003 with approval from the MDEQ prior to the state’s knowledge of widespread PFAS contamination.
By itself, the filing does not add new parties to the case. Instead, it forces plaintiffs to decide whether or not to sue them. Attorneys for the residents say that’s unlikely but possible.
Unless new facts new were to arise that would make it appropriate, “we do not plan on amending the complaint to add any of these parties at this point in time,” said Nicholas Coulson of Liddle & Dubin in Detroit.
“We are confident the parties we’ve identified are the parties who are liable and from whom recovery can be had,” Coulson said.
The case is pending before Judge Janet T. Neff, who took it over in January. She also presides over two separate class actions and a regulatory case against Wolverine World Wide and 3M related to PFAS contamination.
Along with the Zimmerman class action against Wolverine, the Georgia-Pacific case survived 3M’s 2018 effort to consolidate all federal civil cases involving PFAS contamination into one huge lawsuit now pending in South Carolina. Georgia-Pacific argued against the consolidation.
Neither the Wolverine nor the Georgia-Pacific class actions have advanced to the discovery phase yet, where each side can seek evidence and documents via subpoena. Georgia-Pacific and 3M are expected to file dismissal motions following a May 3 conference.
Georgia-Pacific is represented by several of the same attorneys at Warner Norcross & Judd who are defending Wolverine against similar claims in state and federal court.
Other parties named by Georgia-Pacific include Hydro Aluminum North America, Hercules Incorporated, Absolutare Inc, Oakes Carton Company, Spray & Shine Auto Wash, and River Reach Partners, a Colorado developer which owns the former mill property.
Hydro Aluminum operates an extrusion and machining plant at 5575 N. Riverview Drive. Absolutaire makes building HVAC systems at 5496 N. Riverview Drive. Oakes Carton makes food packaging at 5575 Collingwood Avenue. The car wash is at 2411 Brackett Avenue. Hercules previously operated a paper chemicals facility at 411 Hercules Ave.
Georgia-Pacific also named the former Crown Vantage Corporation, which owned the landfill from 1995 to 2000. The company dissolved through Chapter 11 bankruptcy in 2001.
“They are trying to reduce their pool of risk by any means,” said Coulson.
Georgia-Pacific was the last owner of the Parchment paper mill, which closed in 2015. The company acquired former owner Fort James Corp. in 2000. Under Fort James ownership, paper was treated with a 3M PFAS polymer called Scotchban FX-845.
The company declined to share specific evidence for its allegations or specify actions that named parties like Cooper Township should have been taking. Georgia-Pacific said the investigation is wrapping up and it plans to submit a report in May.
“Since the recent filing is part of an ongoing legal proceeding, we’re not at liberty to respond to specifics,” said Georgia-Pacific spokesperson Karen Cole.
Jeff Sorenson, Cooper Township supervisor, said the township disputes that it bears any fault or responsibility for the contamination, despite owning the landfill. The township acquired the undesired property through a quitclaim deed from Kalamazoo County.
“We unfortunately received this property from the county in the aftermath of the bankruptcy of Crown Vantage,” Sorenson said.
Scott Dean, EGLE spokesperson, said the state is aware of the “procedural” filing.
“EGLE’s priorities in Parchment include investigating the reach of groundwater impacts outside the area currently reached by municipal water and to work with local and state health officials to ensure that alternate water is provided where unacceptable levels are found,” Dean said. “EGLE is also overseeing the ongoing investigation of the landfill, which was owned and used by various paper companies, including Georgia-Pacific.”