Letter suggests Bill Schuette shrugged off request to sue 3M over PFAS

• Update: Dana Nessel sues 3M, DuPont over ‘unconscionable’ PFAS pollution in Michigan

LANSING  — In June 2018, Michigan Gov. Rick Snyder instructed Attorney General Bill Schuette to “immediately” sue chemical manufacturer 3M and “all other responsible parties”  for damage its chemicals, known as PFAS, inflicted on Michigan’s waterways.

Schuette, who was running for governor as a Republican at the time, never followed through. 

Now, his successor, Democratic Attorney General Dana Nessel, said Schuette didn’t seriously pursue the case during his final five-plus months in office. Asked what work Schuette’s office left behind on the 3M suit, Nessel’s spokeswoman Kelly Rossman-McKinney responded: “nothing.” 

But nearly a year into office, Nessel hasn’t filed suit either –  demonstrating the slow pace of litigation and bureaucracy that frustrates residents affected by the toxins. Nine years after the detection of widespread PFAS in Oscoda, neither the state nor federal government has implemented a standard for how much of the chemicals are unsafe for drinking water.

“If you’re a citizen, a resident who’s affected by PFAS, you’re looking for action today,” said Aaron Phelps, a partner with Grand Rapids-based law firm Varnum, which represents more than 400 Kent County residents suing shoemaker Wolverine World Wide for widespread contamination. 

“It’s a bit dismaying when it takes years and there’s still no solution.”

Litigation is a common method to generate money to pay for environmental cleanups, and at last three states have sued 3M, a Minnesota-based conglomerate, over PFAS. Last year, New York sued 3M and five other companies over the chemical contamination, seeking to recoup more than $39 million in cleanup costs. In May, New Hampshire filed a PFA suit against 3M and seven other companies, including DuPont and its spinoff, Chemours. And 3M last year paid $850 million to settle a lawsuit with Minnesota in the biggest environmental lawsuit in the state’s history. Minnesota originally sought $5 billion. The settlement allowed 3M to avoid admitting liability while sealing many internal 3M documents Minnesota lawyers gathered in the case.

Schuette declined to comment about his actions regarding the lawsuit request. Bridge Magazine obtained a Dec. 18, 2018, letter he sent to Snyder five months after the governor’s request that blames the inaction on Snyder’s former environmental chief, Heidi Grether.

Schuette wrote that Grether never approved a suit nor provided “the factual, technical and scientific support for any legal action.”

“My attorneys have been providing legal support whenever it was requested, and in that time have dedicated thousands of hours working on PFAS-related issues,” Schuette wrote in the letter 13 days before his term ended as attorney general.

Grether told Bridge the explanation is “pretty bogus.” She accused him of a “stonewall” and “playing it safe” to protect his campaign for governor and avoid actions that might upset political allies.

“I was unaware that the governor's letter was not a sufficient request,” Grether said. “I didn’t know I held more sway than the governor.

Grether said her agency met with Schuette’s office countless times about a potential lawsuit against 3M — even before Snyder requested that Schuette take action. The Department of Environmental Quality continually provided Schuette’s office with information when asked, she said, but the agency could not force 3M to disclose valuable information for building a legal case; it lacked the legal tools Schuette had.

Rusty Hills, a former top aide to Schuette, bristled at the accusation that politics influenced any decisions.

“That never played a role, and I was in the meetings — so I can I can vouch for that,” he told Bridge. 

“We launched massive investigations against large, powerful organizations and individuals — Michigan State University, the Catholic Church. We investigated the Snyder administration (for the Flint water crisis) for goodness’ sake.” 

Hills noted that the attorney general division chief who drafted Schuette’s letter to Snyder, Peter Manning, still works for Nessel.

The back-and-forth comes as Michigan, after years of delays, is ramping up its response to PFAS chemicals.

Formally called perfluoroalkyl and polyfluoroalkyl substances, PFAS are a class of non-stick, waterproof and stain-resistant compounds that also serve as fire retardants. Such chemicals may have been used at as many as 11,300 Michigan fire stations, landfills, industrial sites, military bases, airports and other locations, according to state estimates. 

Research has linked PFAS compounds to developmental and behavioral problems for infants and children, hormonal and immunity problems as well as certain cancers.

Michigan is now monitoring PFAS-contaminated groundwater at 67 sites in 34 counties. Testing data show at least trace amounts of PFAS in more than 100 public water systems.

In his 2018 letter instructing Schuette to sue, Snyder wrote that PFAS in Michigan’s waters “are directly attributable to the products 3M designed, manufactured, marketed and sold since the 1960s,” including Scotchgard and firefighting foams known as AFFF and AR-AFFF.

“It is generally understood that 3M was aware of the nature of its products and the threats they posed to public health,” Snyder wrote.

“Despite this knowledge, 3M continued to manufacture, market and sell its products containing the contaminant without disclosing to its customers and regulatory agencies the threat they posed to the general public.”

The company denies the allegations.

“3M acted responsibly in connection with products containing PFAS and stands behind its record of environmental stewardship,” spokeswoman Fanna Haile-Selassie told Bridge in a statement.

A 3M web page touts the benefits of PFAS, calling the compounds “critical to the manufacture of electronic devices such as cellphones, tablets and semiconductors.”

Nessel, Michigan’s current attorney general, has vowed to sue 3M, though six months have passed since she requested proposal from experts who would offer insight on litigating PFAS cases. She announced the chosen legal team last month and has said her office plans to be “as aggressive as possible.” 

Nessel’s office declined to comment on whether a more aggressive stance from Schuette would have benefitted Nessel in her case against 3M. 

But Rossman-McKinney, the spokeswoman, told Bridge her office wouldn’t need an agency director’s authorization to pursue a lawsuit. 

“The issue is whether a particular lawsuit requires information and expertise possessed by a state agency. In that context, the attorney general would want the cooperation of the relevant agency,” Rossman-McKinney wrote in an email. 

Schuette did file a separate, narrower PFAS lawsuit during his tenure — against Wolverine in early 2018, following revelations that toxic chemicals leached from dumping sites in Kent County.

In that federal suit to force a cleanup, Wolverine denies liability and, in turn, sued 3M. Wolverine says 3M bears responsibility for the contamination because it manufactured PFAS used to make shoes and withheld information about the risks.

Phelps, the attorney representing Kent County residents, said even that lawsuit came late — and only because Phelps’ firm pressed the issue. The firm filed an intent to sue Wolverine in October of 2017 to force remediation. That gave the state 90 days to take its own action against Wolverine. Schuette filed his suit one day ahead of the deadline.

“They didn’t do that until they were really forced to,” Phelps said. 

Michigan would join Minnesota and New York in suing 3M over PFAS if Nessel follows through. A Minnesota environmental regulator last year told Bridge that during their case Minnesota officials had shared some documents with Schuette’s office. 

Among the documents that emerged publicly in court: A 1999 resignation letter from a 3M scientist-turned-whistleblower named Richard Purdy, who called PFOS (a compound used in the company’s Scotchgard stain remover), “the most insidious pollutant since PCB,” referring to a group of carcinogenic chemicals the United States banned in 1979. 

In the letter, Purdy wrote that internal scientists had called for ecological risk testing on PFOS for more than 20 years to no avail. 

“I have worked within the system to learn more about this chemical and to make the company aware of the dangers associated with its continued use,” he wrote. “But I have continually met roadblocks, delays, and indecision. For weeks on end I have received assurances that my samples would be analyzed soon — never to see results.”

Bridge reporter Jonathan Oosting contributed to this report.