Domtar Complaint
Domtar Complaint
Domtar Complaint
STATE OF MICHIGAN
JUDICIAL DISTRICT
31st JUDICIAL CIRCUIT SUMMONS 20 11111111111111111 IIIII IIIII IIIII IIIII IIIII IIIIIII II IIIII IIII
COUNTY PROBATE 22002604NZ
LANE
Court address
201 McMorran Blvd., Port Huron, MI 48060 810-985-203 l
Plaintiff's name(s), address(es), and telephone no(s). Defendant's name(s), address(es), and telephone no(s).
Attorney General Dana Nessel, on behalf of the People of Domtar Industries, Inc.
the State of Michigan, and the State of Michigan 234 Kingsley Park Drive
V Fort Mill, SC 29715
Civil Case
D This is a business case in which all or part of the action includes a business or commercial dispute under MCL 600.8035.
D MDHHS and a contracted health plan may have a right to recover expenses in this case. I certify that notice and a copy of
the complaint will be provided to MDHHS and (if applicable) the contracted health plan in accordance with MCL 400.106(4 ).
0 There is no other pending or resolved civil action arising out of the same transaction or occurrence as alleged in the
complaint.
DA civil action between these parties or other parties arising out of the transaction or occurrence alleged in the complaint has
*This summons is invalid unless served on or · r n e. This document must be sealed by the seal of the court.
RECEIVED JAY M. DEBOYER 12-16-2022 13:30:01 CLERK OF THE 31ST CIRCUIT COURT- FAX FILED
MC 01 (9/19) SUMMONS MCR 1.109(0), MCR 2.102(B), MCR 2.103, MCR 2.104, MCR 2.105
STATE OF MICHIGAN
CIRCUIT COURT FOR THE 31ST JUDICIAL CIRCUIT
ST. CLAIR COUNTY
Defendant.
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Polly A Synk (P634 73) Gregory M. Utter c, J.· - Or::2
Danielle Allison-Yokom (P70950) Joseph M. Callow, Jr. ~ "SJ O' ' · ~
Assistant Attorneys General Special Assistant Attorneys ? eh~ra~ ·.·~~;
Michigan Department of Attorney Sarah V. Geiger S~ r;-?
General Collin L. Ryan .: r.
Environment, Natural Resources, and Matthew M. Allen <.Ji
Agriculture Division Joseph B. Warnick
P .O. Box 30755 Keating Muething & Klekamp PLL
Lansing, MI 48909 1 East 4th St., Ste 1400
(517) 335-7664 Cincinnati, OH 45202
[email protected] (513) 579-6400
[email protected] gm u tter@kmkla w .com
[email protected]
[email protected]
[email protected]
mallen@kmkla w .com
[email protected]
RECEIVED JAY M. DEBOYER 12-16-2022 13:30:01 CLERK OF THE 31ST CIRCUIT COURT - FAX FILED
There is no other pending or resolved civil action arising
out of the transaction or occurrence alleged in the
complaint. MCR 2.113(A); MCR 1.109(D)(2)(a)(i).
COMPLAINT
State of Michigan, and the State of Michigan (collectively, State or Plaintiffs), seek
Environmental located at 4152 Dove Road, Port Huron, Michigan (the Techni-Comp
Site). 1
2. Michigan brings this civil action to recover monetary damages for the
actions causing releases of hazardous substances within the State and to protect
1This case only concerns PFAS contamination at the Techni-Comp Site and does
not concern contamination to the land surrounding Domtar’s paper mill located at
1700 Washington Avenue, Port Huron, Michigan, or any other site within the State
of Michigan where Domtar may have caused PFAS contamination.
1
PARTIES
4. The State maintains its principal office at 525 West Ottawa Street,
MCL 324.20101 et seq. MCL 324.20126a(6); MCL 324.20137(1). The State also
brings this action based upon its statutory authority to protect State natural
resources and property, and its common law police power. This power includes, but
is not limited to, the State’s power to prevent pollution of its natural resources and
property, to prevent nuisances, and to prevent and abate hazards to public health,
principal place of business at 234 Kingsley Park Drive, Fort Mill, South Carolina
29715.
National Registered Agents, Inc, 40600 Ann Arbor Road E., Suite 201, Plymouth,
Michigan 48170.
2
9. In or about the year 1998, Domtar acquired all assets and liabilities of
E.B. Eddy Paper, Inc. (E.B. Eddy). Hereinafter, E.B. Eddy and Domtar are
the management, direction, operation, or control of the affairs of Defendant, and did
12. Any and all references to Defendant in this Complaint include any
named Defendant.
13. This Court has jurisdiction over the subject matter of this action
MCL 324.20137(5) because the causes of action arose in St. Clair County.
3
THE TECHNI-COMP SITE
paper mill located at 1700 Washington Avenue, Port Huron, Michigan (the Port
Huron Mill).
chemicals at the Port Huron Mill as part of its industrial process, including, but not
17. From approximately 1998 until 2020, Domtar released and/or arranged
for the transport, disposal, and/or treatment of PFAS-containing paper waste from
cubic yards of PFAS-laden waste to the Techni-Comp Site for composting over an
22-year period, contaminating the property and surrounding lands, ground waters,
19. A canal referred to as the Huffman Drain runs through the Techni-
Comp Site and into Bunce Creek, a tributary of the St. Clair River. On information
and belief, water run-off from the Techni-Comp Site has caused contamination to
4
its paper sludge to be inert pursuant to Part 115, Solid Waste, of the NREPA, MCL
324.11501 et seq., and in compliance with the Type B criteria 2 developed pursuant
21. Based upon Domtar’s self-declaration of its paper sludge as inert, free
of hazardous substances, and in compliance with Type B criteria for Part 201, in
March of 1998 the DEQ approved Domtar’s request to compost its paper sludge at
the Techni-Comp site. The approval provided: (1) that Domtar “shall be
responsible for ensuring that the Material continues to meet the inert criteria”; (2)
that “any discharges to the environment (which include ground water, surface
water, air, etc.) from the composting process may subject [Domtar] to potential
liability”; and (3) that Domtar shall “prepar[e] a report by January 31 of each year,
which details the volume of Material that was reused in the previous year to
because, in part, its paper sludge contained toxic and hazardous PFAS substances.
23. On information and belief, Domtar knew at the time that it self-
declared its paper sludge as inert that the paper sludge contained hazardous and
toxic PFAS chemicals, and that PFAS were toxic contaminants that posed a direct
threat to the health and safety of the environment and public health, but failed to
2Type B criteria was the residential criteria category under Act 307; the provisions
of Act 307 and other environmental statutes were collected and recodified into the
NREPA.
5
24. Even if Domtar did not know prior to 1998 that its paper sludge
contained PFAS and that PFAS are toxic, Domtar acquired this information
thereafter during the 22-year period from 1998 to 2020 in which Domtar continued
to release and/or arrange for transport, disposal and/or treatment of its PFAS-laden
arranging for the disposal of its contaminated sludge with full knowledge that the
material was not inert and contained hazardous PFAS contaminants. During this
period, Domtar continued fraudulently misrepresenting to the State that its paper
sludge was inert, free of hazardous substances, and in compliance with Type B
responsible for ensuring that the paper sludge continues to meet the inert criteria
specified in Michigan status and rules and that Domtar is subject to liability for any
26. The DEQ’s approval of the transport and composting of Domtar’s paper
sludge to the Techni-Comp Site is void as it was based on upon Domtar’s ongoing
Domtar that its self-declared inert designation is invalid and that the transport and
6
disposal of Domtar’s paper sludge must be managed as a regulated solid waste
28. Part 201 of the NREPA requires that parties liable for a release or
29. Part 201 places the responsibility for response activities and for
caused by a release or threat of release on the person or persons liable for that
30. Under Part 201, EGLE is authorized to develop generic criteria for
hazardous substances, which apply broadly and designate the level of a hazardous
substance above which the hazardous substances are defined to pose a risk to
generic criteria are not met, Part 201 requires the development and use of site-
specific criteria based on more specific or detailed information for the particular site
or circumstances. MCL 324.20120b; see also Mich Admin Code, R 299.14(2) and
R 299.24(2).
7
32. Liable parties can undertake their own, voluntary actions to stop
protect the public health, safety, or welfare, or the environment, or if a liable party
is not “diligently pursuing” such action, EGLE can take enforcement actions, up to
MCL 324.20126a(6).
MCL 324.20137(2).
remediating the Techni-Comp Site without court intervention. Domtar has refused
to comply with its Part 201 obligations, forcing Plaintiffs to initiate the instant
action.
on human health. The toxicity of PFAS has been evaluated in many human and
8
hypertension, increases in serum liver enzymes, increases in serum lipids,
(PFHxA). The criteria relevant to the Techni-Comp Site pertain to two pathways of
exposure: groundwater used as drinking water and, for PFOA and PFOS, the
37. In January 2018, Michigan established criteria for PFOA and PFOS at
70 parts per trillion (ppt) either singly or combined in groundwater used as drinking
water. 5 The criteria were developed to address adverse health impacts linked to
exposures. 6
3Agency for Toxic Substances and Disease Registry, Toxicological Profile for
Perfluoroalkyls (May 2021), p 6, available at
https://www.atsdr.cdc.gov/ToxProfiles/tp200.pdf (accessed December 16, 2022).
4The GSI is “the location at which groundwater enters surface water.”
MCL 324.20120e(23)(c). This criteria is designed to protect surface water, water
quality standards. MCL 324.20120e.
5EGLE, Table 1. Groundwater: Residential and Nonresidential Part 201 Generic
Cleanup Criteria and Screening Levels (June 25, 2018), available at
https://semspub.epa.gov/work/05/2001990.pdf (accessed December 16, 2022).
6MDEQ, Establishing PFOA & PFOS Criteria (January 9, 2018), available at
https://content.govdelivery.com/accounts/MIDEQ/bulletins/1d1db52 (accessed
December 16, 2022).
9
38. Subsequently, the Michigan PFAS Action Response Team’s Science
Advisory Workgroup reviewed the current science on PFAS and human health and
are state drinking water standards. Those Maximum Contaminant Levels were
39. Under the terms of Section 20120a(5) of Part 201, MCL 324.20120a(5),
if a federal or state drinking water standard differs from an existing Part 201
stringent of the two by operation of law. The state drinking water standards for
PFOA (8 ppt) and PFOS (16 ppt) became effective in August 2020 and replaced the
singly or combined.
criteria for groundwater used for drinking water for seven types of PFAS:
acid (PFBS) (420 ppt), perfluorohexane sulfonic acid (PFHxS) (51 ppt),
10
ppt), perfluorooctanoic acid (PFOA) (8 ppt), and perfluorooctanesulfonic acid (PFOS)
41. EGLE also has PFAS criteria for the GSI. The generic GSI criteria
“are the water quality standards for surface waters developed by the department
pursuant to [P]art 31,” Water Quality, of the NREPA, MCL 324.3101 et seq.
MCL 324.20120e(1)(a). EGLE has developed water quality standards under Part 31
disposal and/or treatment of its paper sludge to the Techni-Comp Site caused the
release of PFAS into the environment and the State’s natural resources.
43. The PFAS released by Defendant have migrated into the environment,
including, but not limited to, groundwater, surface waters, soils, and sediments at
44. On November 21, 2019, EGLE collected six surface water samples and
three compost samples from the Techni-Comp site. EGLE received the results of
the samples on December 17, 2019, showing all surface water samples contained
PFOS and PFOA above water quality standards, as high as 53,000 ppt for PFOA.
11
45. The results evidence that PFAS contamination from the Techni-Comp
Site has impacted the Huffman Drain which discharges to Bunce Creek and
ultimately the St. Clair River. Plaintiffs are actively investigating the extent of the
contamination to Bunce Creek and the St. Clair River emanating from the Techni-
Comp Site.
September 7, 2021, EGLE received the sampling results, which again showed all
samples above Part 201 criteria for PFAS. The highest result was 170,000 ppt for
PFOA.
47. EGLE sampled two residential wells in the surrounding area which did
not contain PFAS levels above criteria. EGLE is aware of at least four other
residential wells in the surrounding area that may have been impacted by PFAS
contamination emanating from the Techni-Comp Site; however, EGLE has not been
able to access these properties for sampling. The extent of PFAS contamination to
48. Despite the State’s efforts to date, defining the extent of Domtar’s
contamination will require more investigation and sampling, and the scope of the
12
49. The extent of Domtar’s contamination has not been fully identified,
and the State reasonably anticipates further testing will reveal additional
historical operations.
public health, safety, welfare, and the environment and requires immediate
remediation and other response activity to abate the hazards Domtar has created.
51. PFAS contamination at and around the Techni-Comp Site has injured
the State’s natural resources and/or adversely impacted its beneficial public trust
uses including those for drinking water, recreation, fishing, agriculture, and other
uses.
53. Michigan and its residents have been deprived of the full use,
enjoyment, and benefit of the State’s public trust resources, and the intrinsic value
of such State natural resources, and have been substantially harmed by PFAS
54. The State’s natural resources and property will continue to be harmed
and injured for the foreseeable future by the ongoing release and/or spread of PFAS,
as identified above.
13
55. Domtar’s acts and/or omissions have caused and/or contributed to
Groundwater.
resource that is used for drinking water, irrigation and agriculture, and other
important purposes.
58. State natural resources, including groundwater, are vital to the health,
safety, and welfare of Michigan residents, and to the State’s economy and ecology.
60. Domtar’s PFAS have contaminated and injured drinking water that is
drawn from groundwater sources in locations at and around the Techni-Comp Site.
virtually certain that this additional testing will reveal further PFAS contamination
14
Surface waters.
62. Surface waters are precious, limited, and invaluable State natural
resources that are used for drinking water, irrigation, recreation such as swimming
contamination and injury of surface waters at and around the Techni-Comp Site. It
surface waters including, but not limited to, Bunce Creek and St. Clair River.
64. Wildlife, soils, and sediments are precious, limited, and invaluable
65. Domtar has contaminated and injured the State’s wildlife, soils, and
67. Michigan’s fish and other wildlife are used for food, recreational
purposes, and provide a significant economic benefit to the State, including through
68. Injuries to wildlife affect not only individual wildlife, but the entire
15
and around the Techni-Comp Site. It is virtually certain that this additional testing
will reveal further PFAS contamination and injury of soils, sediments, and wildlife.
remediate PFAS contamination at the Techni-Comp Site and monetary recovery for
the cost of all past and future monitoring, identification, response activities, and
71. There are proven and preliminary remedial techniques for cleaning up
contamination will continue to spread through the State’s natural resources and
at significant expense.
73. The presence and migration of PFAS in State natural resources and
property, absent large-scale and costly remediation and/or treatment, will continue
indefinitely, and will continue to indefinitely threaten such natural resources and
property.
16
74. Because of the injury PFAS have caused and are causing to State
75. The State reserves its right to amend this Complaint as additional
evidence of PFAS contamination comes to light including, but not limited to, PFAS
Techni-Comp Site.
76. The State repeats, re-alleges, and incorporates by reference each and
every allegation contained in the preceding paragraphs, as though fully set forth
herein.
77. Part 201 of the NREPA authorizes the Attorney General, on behalf of
the State, to commence a civil action seeking, among other things, “[t]emporary or
MCL 324.20137(1). Part 201 defines “response activity costs” or “costs of response
17
78. Part 201 of NREPA also allows the State to recover “[d]amages for the
MCL 324.20126a(1)(c).
80. Part 201 of NREPA authorizes the Attorney General, on behalf of the
injunctive relief necessary to protect the public health, safety, or welfare, or the
liability for future response activity costs and damages.” MCL 324.20137(1).
81. PFOA, PFOS, GenX, PFBS, PFHxS, PFHxA, and PFNA are
“hazardous substances” under Section 20101(1)(x) of Part 201 of the NREPA, MCL
324.20101(1)(x).
83. EGLE has established cleanup criteria for certain PFAS for exposure
pathways including the groundwater-surface water interface for PFOA and PFOS
and groundwater as a source of drinking water for PFOA, PFOS, GenX, PFBS,
18
PFHxS, PFHxA, and PFNA. MCL 324.20120e(1)(a); MCL 324.20120a(5); Mich
85. The levels of PFOA and PFOS in groundwater at and around the
Techni-Comp Site exceed the concentrations that satisfy the cleanup criteria under
Part 201.
water, soil, and sediments at and around the Techni-Comp Site pose an
natural resources.
the concentrations that satisfy the cleanup criteria for unrestricted residential use
***
19
(b) The owner or operator of a facility at the time of
disposal of a hazardous substance if the owner or operator
is responsible for an activity causing a release or threat of
release.
***
89. Domtar owned and operated a facility, the Port Huron Mill, and
through its operations at the Port Huron Mill caused a release or threat of release of
PFAS at the Techni-Comp Site. Specifically, Domtar’s operations at the Port Huron
2020 consisted almost entirely of Domtar’s waste; and the compost was intended for
for the disposal or treatment of PFAS, and/or arranged with a transporter for
20
(a) All costs of response activity lawfully incurred by the
state relating to the selection and implementation of
response activity under this part.
***
(c) Damages for the full value of injury to, destruction of,
or loss of natural resources, including the reasonable costs
of assessing the injury, destruction, or loss resulting from
the release.
***
***
21
(c) Damages for the full value of injury to, destruction of,
or loss of natural resources resulting from the release or
threat of release, including the reasonable costs of
assessing the injury, destruction, or loss resulting from
the release or threat of release.
(e) A civil fine of not more than $10,000.00 for each day of
noncompliance without sufficient cause with a written
request of the department pursuant to section
20114(1)(h). A fine imposed under this subdivision shall
be based on the seriousness of the violation and any good
faith efforts of the person to comply with this part.
(f) A civil fine of not more than $1,000.00 for each day of
violation of this part. A fine imposed under this
subdivision shall be based upon the seriousness of the
violation and any good faith efforts of the person to
comply with this part.
***
substances for which Domtar is responsible, the State has incurred and is
Domtar is responsible has also caused injury to, destruction of, and loss of the
95. Due to the injury, destruction, and loss of natural resources, Domtar is
liable to the State for the cost of restoring, repairing, replacing, or acquiring the
22
equivalent of the natural resources injured or acquiring substitute or alternative
96. Accordingly, under Part 201 of NREPA, the State seeks an order
addition to holding Domtar liable for all past and future natural resource damages,
loss-of use damages, response activity costs, costs of investigation, costs of testing
and monitoring, costs of providing water from an alternate source, costs of installing
reaches wells, costs of remediating PFAS and other hazardous substances from
incurred to address PFAS contamination and injury at and around the Techni-
Comp Site, interest on the damages according to law, any applicable civil fines, and
any other relief necessary for the enforcement of Part 201 to remedy PFAS and
for future response activity costs and damages pursuant to MCL 342.20137(1)(d)
including, but not limited to, costs related to providing an alternative water supply
for any impacted or threatened drinking water wells that may be identified in the
23
effect studies carried out under the supervision, or with the approval of, the
interest, and oversight of any future response activities that Domtar may perform.
98. The State repeats, re-alleges, and incorporates by reference each and
every allegation contained in the preceding paragraphs, as though fully set forth
herein.
State, to maintain a civil action “for declaratory and equitable relief against any
person for the protection of the air, water, and other natural resources and the
groundwater contamination.
101. As set forth in more detail above, surface water and groundwater have
allows the court to fashion standards in the context of actual problems as they arise
in individual cases.
24
103. Accordingly, the State seeks an order compelling Domtar to remediate
for all past and future natural resource damages, loss-of use damages, response
early warning system to detect PFAS before it reaches wells, costs of remediating
surface waters, soils, sediments, and other natural resources, costs of remediating
Site, any other costs or other expenditures incurred to address PFAS and hazardous
substance contamination and injury at and around the Techni-Comp Site, interest
on the damages according to law, and any other relief necessary for the enforcement
for future response activity costs and damages including, but not limited to, costs
assessments or health-effect studies carried out under the supervision, or with the
approval of, the Michigan Department of Health and Human Services related to
response activities, interest, and oversight of any future response activities that
25
THIRD CAUSE OF ACTION
LIABILITY UNDER PART 31 OF NREPA
105. The State repeats, re-alleges, and incorporates by reference each and
every allegation contained in the preceding paragraphs, as though fully set forth
herein.
pollution control statute. Part 31 of NREPA has the dual purpose of protecting
water quality and regulating water-waste disposal. Under MCL 324.3103(1), EGLE
has the duty and authority to “protect and conserve the water resources of the
state.” “Waters of the state” includes both surface and underground waters.
107. MCL 324.3115(1) provides that the Attorney General may commence a
substance into the waters of the State that is or may become injurious to: (a) “the
recreational, or other uses that are being made or may be made of such waters”; (c)
“the value or utility of riparian lands”; (d) “livestock, wild animals, birds, fish,
aquatic life, or plants or to their growth, or propagation”; and (e) “the value of fish
and game.” EGLE has also developed water quality standards under Part 31 for
26
109. “Waters of the state” means groundwaters, lakes, rivers, and streams
and all other watercourses and waters, including the Great Lakes within the
110. Through its release and/or arrangement for transport, disposal and/or
directly or indirectly caused PFAS to be discharged into the waters of the state, and
these discharges are or may become injurious to public health, fish, plants, aquatic
life, and other designated uses of the waters of the state and, therefore, these
a public nuisance and “may be abated according to law in an action brought by the
112. The State is entitled to relief requiring Domtar to take such action as
may be necessary to abate the injurious PFAS discharged to the waters of the state
113. The State further seeks statutory penalties, fines, and any other relief
indirectly discharged substances that are or may become injurious to public health,
fish, plants, aquatic life, and other designated uses of the waters of the state.
27
115. As a result, the value and function of the natural resources of the State
have been significantly damaged. In addition, the State has incurred, and
for all past and future natural resource damages, loss-of-use damages, costs of
maintaining an early warning system to detect PFAS before it reaches wells, costs
contamination at and around the Techni-Comp Site, any other costs or other
expenditures incurred to address PFAS contamination and injury at and around the
Techni-Comp Site, interest on the damages according to law, any applicable civil
fines, and any other relief necessary for the enforcement of Part 31 to remedy PFAS
for future costs and damages including, but not limited to, costs related to providing
studies carried out under the supervision, or with the approval of, the Michigan
28
Department of Health and Human Services related to response activities, interest,
and oversight of any future response activities that Domtar may perform.
118. The State repeats, re-alleges, and incorporates by reference each and
every allegation contained in the preceding paragraphs, as though fully set forth
herein.
misrepresented that its paper sludge was free of hazardous substances and in
compliance with criteria for Part 201, and materially omitted that its paper-sludge
material misrepresentations and omissions for decades, including, but not limited
to, through continuing representations to the DEQ that its paper sludge continued
120. Domtar knew that its paper sludge was not inert, free of hazardous
substances, or in compliance with Type B criteria for Part 201 because Domtar
knew that its paper sludge contained PFAS contaminants and further knew that
PFAS are toxic chemicals that pose significant risk to the welfare of the
121. Domtar intended that Plaintiffs rely upon these representations and
29
122. As a direct and proximate result of the Defendant’s acts and omissions
as alleged herein, the State seeks an order compelling Domtar to remediate PFAS
contamination at the Techni-Comp Site in addition to holding Domtar liable for all
past and future natural resource damages, loss-of use damages, response activity
costs, costs of investigation, costs of testing and monitoring, costs of providing water
system to detect PFAS before it reaches wells, costs of remediating PFAS from
the Techni-Comp Site, any other costs or other expenditures incurred to address
PFAS contamination and injury at and around the Techni-Comp Site, interest on
the damages according to law, any applicable civil fines, and any other relief
123. The State repeats, re-alleges, and incorporates by reference each and
every allegation contained in the preceding paragraphs, as though fully set forth
herein.
124. Defendant had a duty to the State to exercise due care in the release
and/or arrangement for transport, disposal and/or treatment of PFAS and products
containing PFAS.
30
125. Defendant breached its duty of care in that it negligently, carelessly,
and/or recklessly released and/or arranged for the transport, disposal and/or
proximately caused PFAS to contaminate the State’s property and its groundwater,
surface waters, fish, wildlife, marine resources, and other natural resources,
126. As a direct and proximate result of the Defendant’s acts and omissions
as alleged herein, the State and its residents, which the State represents parens
trial.
127. As a direct and proximate result of the Defendant’s acts and omissions
as alleged herein, the State seeks an order compelling Domtar to remediate PFAS
contamination at the Techni-Comp Site in addition to holding Domtar liable for all
past and future natural resource damages, loss-of use damages, response activity
costs, costs of investigation, costs of testing and monitoring, costs of providing water
system to detect PFAS before it reaches wells, costs of remediating PFAS from
the Techni-Comp Site, any other costs or other expenditures incurred to address
PFAS contamination and injury at and around the Techni-Comp Site, interest on
31
the damages according to law, any applicable civil fines, and any other relief
128. The State repeats, re-alleges, and incorporates by reference each and
every allegation contained in the preceding paragraphs, as though fully set forth
herein.
129. The PFAS that was released and/or arranged for transport, disposal
and/or treatment by Defendant affecting the State’s property and its groundwater,
surface waters, fish, wildlife, marine resources, and other natural resources
which the State and/or a substantial number of its residents have exclusive
possessory interests.
130. The trespass of PFAS alleged herein has varied over time and has not
ceased.
its groundwater, surface water, fish, wildlife, marine resources, and other natural
resources.
132. Defendant knew with substantial certainty that its acts would
contaminate the State’s property and its surface waters and groundwater, fish,
32
133. The State has not consented to and does not consent to the trespass
alleged herein.
134. The State brings this claim as the exclusive owner of the property and
interests in property, as well as in both its public trustee and parens patriae
capacities.
135. The State has a duty to protect and restore its natural resources and
136. In its parens patriae capacity, the State may protect its quasi-
sovereign interests, including the State’s interest in the well-being of its residents,
as well as its residents’ interest in the integrity of the State’s natural resources.
137. Accordingly, the State is bringing this action for the invasion of its
139. As a direct and proximate result of the Defendant’s acts and omissions
as alleged herein, the State and its residents, which the State represents parens
trial.
140. As a direct and proximate result of the Defendant’s acts and omissions
as alleged herein, the State seeks an order compelling Domtar to remediate PFAS
contamination at the Techni-Comp Site in addition to holding Domtar liable for all
33
past and future natural resource damages, loss-of-use damages, response activity
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,
waters, soils, sediments, and other natural resources, costs of remediating PFAS
contamination at and around the Techni-Comp Site, any other costs or other
expenditures incurred to address PFAS contamination and injury at and around the
Techni-Comp Site, interest on the damages according to law, any applicable civil
fines, and any other relief necessary to remedy PFAS contamination at and around
141. The State repeats, re-alleges, and incorporates by reference each and
every allegation contained in the preceding paragraphs, as though fully set forth
herein.
or injures the property, health, safety, and welfare of the general public and the
State of Michigan.
34
143. Defendant, by its negligent, reckless, and willful acts and omissions as
set forth above, have, among other things, knowingly released PFAS contamination
in State natural resources and property throughout Michigan, having concealed the
threat, thereby causing and threatening to cause PFAS contamination of the State’s
contaminate more State natural resources and property throughout the State.
and/or threatening, among other things, (i) Michigan residents’ common public
rights to enjoy State natural resources and property free from unacceptable health
risk, pollution, and contamination, and (ii) the State’s parens patriae and public
trust abilities to protect, conserve, and manage the State’s natural resources.
145. Defendant has, at times relevant to this action, caused, contributed to,
its acts and omissions, Defendant knowingly released PFAS into the environment,
known, that the introduction and use of PFAS would unreasonably and seriously
endanger, injure, and interfere with the ordinary comfort, use, and enjoyment of
natural resources and property relied upon by the State and its residents, as it has.
35
147. Defendant has caused, contributed to, maintained, and/or participated
in a public nuisance that has caused substantial injury to the State’s natural
resources and property, in which the public has interests represented by and
protected by the State in its trustee and parens patriae capacities. Defendant’s
conduct also threatens to cause substantial additional injury to the State’s natural
resources and property. The public nuisance has caused and/or continues to
148. The contamination of the State’s natural resources and property with
PFAS is ongoing. PFAS continue to threaten, migrate into, and enter the State’s
natural resources and property, and cause new contamination in new locations.
149. As a direct and proximate result of Defendant’s acts and omissions, the
150. The State has incurred, is incurring, and will incur investigation,
property.
151. Defendant’s acts and omissions have caused and/or threatened to cause
injuries to the State’s natural resources and property that are indivisible.
152. As a direct and proximate result of the Defendant’s acts and omissions
as alleged herein, the State seeks an order compelling Domtar to remediate PFAS
contamination at the Techni-Comp Site in addition to holding Domtar liable for all
past and future natural resource damages, loss-of-use damages, response activity
36
costs, costs of investigation, costs of compliance and enforcement, 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,
waters, soils, sediments, and other natural resources, costs of remediating PFAS
contamination at and around the Techni-Comp Site, any other costs or other
expenditures incurred to address PFAS contamination and injury at and around the
Techni-Comp Site, interest on the damages according to law, any applicable civil
fines, and any other relief necessary to remedy PFAS contamination at and around
153. The State repeats, re-alleges, and incorporates by reference each and
every allegation contained in the preceding paragraphs, as though fully set forth
herein.
154. By common law and the principles of justice, a person may not be
155. The principles of unjust enrichment are violated where a party steps in
to address a duty owed by another to the public to protect the public from an urgent
threat to their health, safety, or general welfare and pays expenses that rightfully
37
156. To address PFAS and hazardous substance contamination in the State
of Michigan in order to protect its residents and natural resources, the State has
157. Defendant has received a benefit from the State’s response activities
because Defendant should bear the cost of investigating and cleaning up the PFAS
and hazardous substance contamination caused by or related to the sale, use, and
PFAS contamination and injury of State natural resources and property, including
fish), and their associated soils, sediments, and uses, and other State natural
resources and property, according to proof, including, but not limited to:
38
(iii) past and future response activity costs;
B. Declare that Domtar is liable under Part 201 for causing the release or
threat of release of hazardous substances from its facility and that such actions
require Domtar to conduct response activities under Part 201 to address the
environment;
another person, and that such actions require Domtar to conduct response activities
39
under Part 201 to address the exceedances of criteria and unacceptable risks to
D. Order Domtar to prepare and submit for approval to EGLE, for review
and comment, all necessary reports or plans, and to perform all further response
activities necessary to protect the public health, safety, and welfare or the
from Domtar’s actions, releases or threatened releases in compliance with Part 201;
local units of government regarding the status and progress of response activities
endangerment to human health and the environment including, but not limited to:
(a) sampling for PFAS in drinking water using U.S. EPA-approved Method 537
supplies; and (c) provision and maintenance of drinking water treatment systems,
PFAS released into the environment from its manufacturing processes and disposal
practices, including potential releases via air deposition, and analyze the impact of
40
such releases to drinking water wells, surface waters, and stream biota, subject to
continuing nuisance and trespass by enjoining the further disposal, use, sale,
J. Impose statutory penalties, fines, and any other relief available under
M. Order any other and further relief as the Court deems just, proper, and
equitable.
JURY DEMAND
Respectfully submitted,
Dana Nessel
Attorney General
41
Danielle Allison-Yokom (P70950)
Assistant Attorneys General
Michigan Department of Attorney
General Environment, Natural
Resources, and Agriculture Division
P.O. Box 30755
Lansing, MI 48909
(517) 335-7664
[email protected]
[email protected]
Gregory M. Utter
Joseph M. Callow, Jr.
Special Assistant Attorneys General
Matthew M. Allen
Sarah V. Geiger
Collin L. Ryan
Joseph B. Womick
Keating Muething & Klekamp PLL
1 East 4th Street, Suite 1400
Cincinnati, OH 45202
(513) 579-6400
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
42
EXHIBIT A
STATE OF MICHIGAN
REPLY TO:
JOHN ENGLER, Governor
WASTE MANAGEMENT DIVISION
DEPARTMENT OF ENVIRONMENTAL QUALITY PO BOX 30241
'Better Service for a Better Environment" LANSING Ml 48909,7741
HOLLISTE R BUILDING, PO BOX 30473, LANSING Ml 48909,7973
INTERNET: www.deq.slate.ml.us
RUSSELL J. HARDING, Director
This is in response to your letter dated February 10, 1998, notifying the Michigan Department
of Environmental Quality (DEQ) of your intent to reuse the paper fiber waste (Material)
generated at the E.B. Eddy Paper, Inc. (E.B. Eddy) facility located in Port Huron, Michigan.
Your notification was being made pursuant to Part 115, Solid Waste Management, of the
Natural Resources and Environmental Protection Act, 1994 PA 451, as amended, and its
administrative rules. Your letter states that the Material will be mixed with yard wastes at a
composting facility owned by Techni-Comp Environmental.
Since E.B. Eddy had previously notified the DEQ, in a letter dated June 3, 1996, per
Rule 114(2)(g), that their Material met the inert criteria contained in Rule 115, then they have
the right to self-declare their wastes as inert. You have fulfilled your obligations pursuant to
Rule 114(2)(g). You should realize that any discharges to the environment (which include
ground water, surface water, air, etc.) from the composting process may subject E.B. Eddy to
potential liability. In addition, E.B. Eddy shall be responsible for ensuring that the Material
continues to meet the inert criteria contained in Rule 115.
E.B. Eddy shall be responsible for preparing a report by January 31 of each year, which details
the volume of Material that was reused in the previous year to produce compost. The report
should be sent directly me. If you have any questions regarding this approval, please contact me.
Sincerely,
Dllpll~, Ro§~pskey
Environmental Quality Specialist
Solid Waste Program Section
Waste Management Division
517-335-4712