Read the full article by Garret Ellison (MLive)
“LANSING, MI — The state of Michigan did not follow proper administrative procedure when setting groundwater cleanup standards for PFAS chemicals, according to a judicial order which invalidated those rules this week but did not immediately prohibit their continued usage.
In a 20-page Nov. 15 order, Court of Claims Judge Brock Swartzle sided with 3M Corp., agreeing that Gov. Gretchen Whitmer’s administration violated administrative procedure by failing to properly account for certain business costs while setting groundwater cleanup rules in late 2020.
Swartzle invalidated the rules, but, citing their public benefit and expected standard-setting at the federal level, paused that effect pending the outcome of appeals.
‘The interests of public health weigh in favor of this stay, so that the parties can pursue appellate relief and the Department can consider, if it wishes, whether additional regulatory actions should be taken in the meantime,’ Swartzle wrote.
The decision arises from 3M’s challenge last May to Michigan’s new drinking water standards for PFAS, which the company claimed had been developed by the Michigan Department of Environment Great Lakes and Energy (EGL) through a ‘rushed and invalid regulatory process.’
Swartzle sided with EGLE on that count, agreeing that the standards, called maximum contaminant levels or MCLs, were properly developed under the Safe Drinking Water Act.
Michigan begin drafting PFAS drinking water standards in March 2019 for seven different PFAS compounds following toxicology reviews that started in 2018. The new rules took effect in August 2020 after the state legislature declined to block them. It marked the first time Michigan developed its own drinking water standards for a contaminant rather than adopting or modifying existing federal standards.
However, the judge says EGLE violated the state Administrative Procedures Act when it subsequently attempted a second round of rulemaking to codify those MCLs as groundwater cleanup criteria under Part 201 of the Natural Resources and Environmental Protection Act (NREPA).
According to Swartzle, EGLE deferred a consideration of business compliance costs when developing PFAS standards for drinking water systems and then, when applying those standards to groundwater cleanups, cited “the prior promulgated rules as, in effect, a ‘done deal.’”
Swartzle likened that to playing ‘a shell game with the public.’
Under state law, such cleanup rules are used to govern the remediation of toxic pollutants like PFAS, which have been often referred to as ‘forever chemicals’ because of their resistance to degradation in the environment and within the bodies of people exposed to them.” …