Read the full article by Beth LeBlanc and Carol Thompson (The Detroit News)
“A state appeals court panel has sided with chemical giant 3M Company and invalidated Michigan’s rules setting limits for the amount of pre- and polyflouralkyl substances, generally known as PFAS, that can be contained in groundwater, but the rules will remain in effect as the state contemplates an appeal.
In a 2-1 decision, the three-judge Court of Appeals panel ruled on Tuesday the state failed to follow the rulemaking process required for such edicts because it didn’t estimate how much it would cost businesses to come into compliance with the new limits on PFAS chemical levels.
The litigation filed by 3M challenged the new state rules created in 2020 that are thought to be some of the toughest limits in the nation on the ‘forever chemicals,’ which have been used in manufacturing and consumer products, such as food packaging, dental floss and fire-fighting foam, since the 1940s. The manmade chemicals don’t break down in the environment and experts believe they can build up in people, animals and the environment over time.
Michigan’s rule-making process ‘requires an estimation’ of the costs to business, said the majority opinion written by Court of Appeals Judges Christopher Murray and Michael Gadola.
‘And if EGLE cannot provide one, then it cannot propose the rule in a way that complies with the (Administrative Procedures Act),’ wrote Murray, a former deputy legal counsel for Republican ex-Gov. John Engler, and Gadola, who was appointed by Republican former Gov. Rick Snyder after serving as Snyder’s legal counsel.
Judge Allie Greenleaf Maldonado, an appointee of Democratic Gov. Gretchen Whitmer, dissented based on a technicality in the law. Michigan law only requires a state agency to calculate the business costs of a ‘proposed rule,’ not a rule indirectly changed by the proposed rule, Maldonado said.
St. Paul, Minn.-based 3M, which has a Detroit plant at Eight Mile and Groesbeck Highway subject to the rules, issued a brief statement Wednesday on the court victory.
‘3M supports fluorochemical regulation that is based on the best available science and established regulatory processes,’ the company said in a statement.
At its Detroit plant, 3M makes products for wood floor resurfacing, collision repair, metal applications and the automotive aftermarket finishing industries, according to 3M’s website.
The Michigan Department of Environment, Great Lakes and Energy called the legal push by 3M ‘disappointing,’ noting the company is ‘responsible for bringing PFAS to market.’
‘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,’ said Hugh McDiarmid, a spokesman for the agency. ‘Michigan will continue to aggressively work to protect the water we all rely on.’
An earlier state Court of Claims opinion also ruled the groundwater rules were invalid, but issued a stay that allowed Michigan to continue using the rules until all chances at appeals were exhausted. Because of that, Michigan’s PFAS limits for drinking water and groundwater remain in place pending an appeal to the Michigan Supreme Court.
Concern about PFAS’s impact
Exposure to PFAS may be harmful and lead to reproductive problems, developmental delays in children, increased cancer risk, reduced immunity and more. Researchers are still studying how different levels of exposure affect health.
Theresa Landrum, a Detroit resident and member of the Michigan PFAS Action Response Team, said the ruling is ‘disappointing … in light of the damage and concern’ that PFAS causes to Michigan residents.
‘If (the state) appeals to the Supreme Court, I would hope it would be favorable for the residents of Michigan and throughout the United States who have been exposed to PFAS,’ Landrum said.
The Court of Appeals panel based its opinion on ‘a very narrow, technical, esoteric issue’ of administrative procedure, said Anthony Spaniola, a Troy attorney and co-chair of the Great Lakes PFAS Action Network. If the state loses future appeals, he said the health of Michigan residents, wildlife and the Great Lakes would be at risk.
‘The important point I think for everyone to remember here is that the ruling in no way challenges the science that supports the drinking water and groundwater standards,’ Spaniola said.
The ruling doesn’t side with Michigan residents who are at risk of PFAS exposure and related health effects, including decreased fertility, suppressed immune function and a higher risk of some cancers, said Sandy Wynn-Stelt, Great Lakes PFAS Action Network co-chair.
‘We know that this is still dangerous,’ Wynn-Stelt said. ‘We know that we still shouldn’t be drinking it, or eating it or having it in our air. This just feels like another step back.’
What the rules did, didn’t do
The rules established by the Michigan Department of Environment, Great Lakes and Energy sought to crack down on the ‘forever chemicals’ used to create non-stick surfaces for products such as firefighting, foam, Scotchgard, Teflon and food wrappers. They have been associated with such health risks as thyroid disease, increased cholesterol levels and kidney and testicular cancers.
The rules, which applied to roughly 2,700 public water systems, set maximum contaminant levels at 6 parts per trillion for PFNA; 8 ppt for PFOA; 16 ppt for PFOS; 51 ppt for PFHxS; 420 ppt for PFBS; 370 ppt for HFPO-DA or Gen X; and 400,000 ppt for PFHxA.
The rules outlined the costs of sampling, monitoring and treatment of drinking water for state and local governments but, when it came to businesses, only identified costs for businesses with their own water supplies.
At the same time, the state department acknowledged the drinking water rules would bring costs to other businesses, including ripple effect changes to groundwater cleanup rules. But the agency said the cost would vary from business to business, and it would not be ‘practical’ to tally an exact cost.
‘If an entity is responsible for either causing a PFAS release or being responsible for the due diligence associated with a PFOS or PFOA release under Part 201, then they would be obligated to meet these standards,’ EGLE’s Regulatory Affairs Officer David Fiedler said in 2019, according to Tuesday’s decision.
3M filed suit after the August 2020 effective date of the rules change, arguing the state had not accounted for all the costs to businesses related to the groundwater cleanup standards that were tightened as a result of the changes to the drinking water standards. Those cost estimates are required under Michigan’s rule-making statute, called the Administrative Procedures Act.
Court of Claims Judge Brock Swartzle, a Snyder appointee, had earlier ruled in 3M’s favor and declared the drinking water rules invalid, but stayed the effect of his decision until all chances at appeal were exhausted. The Court of Appeals on Tuesday followed suit.
‘Although EGLE identified the estimated actual statewide compliance costs of the proposed drinking-water rule on businesses and groups, it did not estimate costs that these changes automatically imposed on groundwater cleanup,’ Murray and Gadola wrote in the majority opinion.
‘Failing to do so resulted in EGLE’s noncompliance with MCL 24.245(3)(n), which in turn means the rules were not promulgated in compliance with the APA, and are invalid.’
It’s undisputed that the changes to the drinking water rules had a ripple effect on groundwater guidelines, Maldonado wrote in her dissent, but ‘the groundwater-cleanup rules were not the rules that were part of this specific regulatory process.’
‘This appears to be a loophole in the rulemaking process, but this Court defers to the Legislature regarding matters with complex social and policy ramifications,’ Maldonado wrote.
‘That a statute appears to be inconvenient, unnecessary, or unwise is not a reason for this court to avoid the application of plain statutory language.’”