State Court of Appeals rejects Michigan PFAS water rules after chemical company 3M sues
The Michigan Court of Appeals has struck down state regulators' stricter drinking water rules on potentially health-harming nonstick "forever chemicals" known as PFAS, finding that regulators didn't adequately consider the costs to businesses to comply with the new rules.
The appellate court, in a ruling published Tuesday, upheld a lower court's finding that the Michigan Department of Environment, Great Lakes and Energy should have better considered that its new rules to restrict PFAS compounds in drinking water also impacted requirements to clean up the compounds in groundwater.
Under Michigan's Administrative Procedures Act of 1969, or APA, state agencies are required to prepare a regulatory impact statement that includes an estimate of how much compliance with the proposed rules will cost "businesses and other groups." EGLE, in its PFAS drinking water rule-making process, found that it could not make an estimate of those compliance costs to businesses, but the appellate judges said that was an unacceptable answer.
"(State law) requires an estimation, and if EGLE cannot provide one, then it cannot propose the rule in a way that complies with the APA," the unanimous court stated in its ruling. The case was heard by presiding Judge Michael Gadola and Judges Christopher Murray and Allie Greenleaf Maldonado.
What PFAS does in the body
Per- and polyfluoroalkyl substances — PFAS — were chemical compounds used in a host of consumer products since the second half of the 20th century for their nonstick and water-repellent characteristics. They're known as forever chemicals because they don't break down in nature.
Two of the most common and most studied PFAS compounds, known as PFOS and PFOA, have been linked to cancer; conditions affecting the liver, thyroid and pancreas; ulcerative colitis; hormone and immune system interference; high cholesterol; pre-eclampsia in pregnant women, and negative effects on growth, learning and behavior in infants and children.
Michigan had previously used the U.S. Environmental Protection Agency's nonenforceable "health advisory level" for PFOS and PFOA, allowed at a combined 70 parts per trillion in drinking water. But in recent years, researchers have concluded that standard was not sufficiently protective of public health, and many other types of PFAS found commonly in the environment — unaddressed in federal guidelines — also appear potentially harmful.
Michigan's multiagency PFAS Action response team, or MPART, spent more than a year reviewing existing science on PFAS compounds, and enlisted scientists from around the country, as well as business leaders and others, in forming its own standards. The state in 2020 adopted some of the toughest new standards in the country, limiting allowable PFOS and PFOA in drinking water to 16 and 8 parts per trillion (ppt), respectively, and for the first time assigning limits to five other PFAS compounds.
More: PFAS contamination is Michigan's biggest environmental crisis in 40 years
The lawsuit challenging Michigan's new PFAS water rules was brought by the Minnesota-based 3M Corp., one of the leading manufacturers of PFAS compounds historically. The company argued that EGLE had not fully accounted for all costs associated with the rules and had not estimated costs for businesses to comply with the related groundwater cleanup standards that would automatically result from new drinking water rules.
The state Court of Claims in 2021 rejected most of 3M's contentions, but the court affirmed that the state's required regulatory impact statement was deficient for lack of a cost estimate to businesses for groundwater cleanup. The appellate court's ruling Tuesday upheld that earlier Court of Claims finding.
EGLE, in an emailed statement, responded to the appeals court ruling.
"It is disappointing that 3M, one of the major chemical manufacturing companies responsible for bringing PFAS to market, continues to push back on efforts that protect residents from toxic products," agency officials stated.
More: Here's which pitcher filters took 100% of PFAS 'forever chemicals' out of drinking water
"While EGLE respectfully disagrees with the court's decision, we appreciate that it has allowed the health standards to remain in effect while we appeal, because the safety of our citizens should not be compromised while the legal process moves forward."
In a statement to the Free Press, 3M officials said the company "supports fluorochemical regulation that is based on the best available science and established regulatory processes."
Contact Keith Matheny: kmatheny@freepress.com.
This article originally appeared on Detroit Free Press: State Court of Appeals rejects Michigan PFAS water rules after 3M suit
