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.
Existence of such rules gives the state leverage to force cleanup or sue polluters at sites where the chemicals exceed the allowable levels in groundwater.
The state has aggressively moved to search out PFAS contamination following the onset of statewide drinking water testing in 2018. There are more than 230 sites under investigation around Michigan where PFAS in the groundwater exceeds the state’s cleanup criteria.
Michigan Attorney General Dana Nessel’s office has used that criteria to sue 3M and other chemical manufacturers and PFAS users in an effort to force cleanups and recoup other public costs. The latest case was filed in September against a corporate successor to Keeler Brass, a manufacturer which left contamination scattered around Kent County.
A trial in one case, versus Asahi Kasei Plastics North America over PFAS contamination at the site of a Brighton factory fire, is scheduled for March after being pushed several times.
Nessel’s office would not provide comment about the Swartzle order. EGLE did not immediately responded to inquiries.
Sean Lynch, a spokesperson for 3M, said the company “supports fluorochemical regulation that is based on the best available science and established regulatory processes.”
“We agree with the court’s decision reinforcing the importance of following established processes,” Lynch said. “We are committed to continuing our work with community and government stakeholders to chart a path forward.”
3M has attempted to knock down similar PFAS rules in New Jersey and New Hampshire. It is potentially facing billions in liability costs related to PFAS litigation, many cases of which have been consolidated in a massive federal action in South Carolina. Multiple cases filed by Nessel’s office in 2020 have been consolidated there.
Paul Albarran, an attorney at Varnum Law who has litigated PFAS cases against 3M and Wolverine Worldwide, said the issue appears to be “fixable” for the state.
“The regulations are in place. The court found that the state had done just about everything right except for one small thing,” Albarran said. “I think ultimately this is going to end up being like the status quo, but it’s just a matter of how it’s going to get there.”
“It’s a good thing the order was stayed.”
Oday Salim, an environmental law professor at the University of Michigan, called the order “sensible” for leaving the rules in place and giving the state a chance to fix them.
“3M basically lost,” Salim said. “They lost on everything that was substantive. They wanted to throw the whole thing out. They were saying the state doesn’t even have the authority to promulgate these rules.”
“And the judge shut that down pretty quickly.”
In the order, Swartzle noted that 3M’s challenge to Michigan’s drinking water standards might become “effectively moot” once the U.S. Environmental Protection Agency (EPA) finalizes national drinking water standards for some PFAS chemicals, which is expected next fall.
The EPA is also adding two individual chemicals from the PFAS family, PFOS and PFOA, to the list of substances regulated as “hazardous” under federal Superfund law, which will give the agency authority to order cleanups similar to what Michigan previously developed.
Mike Johnston, vice president of government affairs at the Michigan Manufacturers Association (MMA), which opposed the PFAS standards during development, said the organization appreciated Swartzle “holding this state government accountable for creating rules according to the recorded procedures.”
Charlotte Jameson, chief policy officer for Michigan Environmental Council, which supported the standards during development, called on Democrats to use their new control over the state Legislature in 2023 to reform state rulemaking.
“For decades, industry in Michigan has eroded good governance by making our rule adoption process convoluted and evaded accountability by opposing legislation that would require them to truly clean up their pollution,” Jameson said. “We need legislative reforms that put public health and our environment, instead of industry’s bottom line, back at the center of both rulemaking and our contamination cleanup programs.”
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