3M’s Win Overturns Michigan ‘Forever Chemicals’ Water Rules (1)

Some of the country’s most stringent standards limiting forever chemical pollution are at risk after a Michigan appellate court said state regulators botched the rule-making process and failed to calculate cleanup costs imposed on industry.

When Michigan Department of Environment, Great Lakes, and Energy regulators ushered through drinking water standards targeting seven types of per- and polyfluoroalkyl substances (PFAS) in roughly a year, they violated the state’s Administrative Procedures Act by refusing to calculate costs businesses or the public might have to shoulder for cleaning up groundwater contamination, a divided Michigan Court of Appeals ruled Tuesday.

3M had challenged the regulations, which could mean potentially steep cleanup costs for companies such as Wolverine World Wide, Georgia Pacific, and DuPont if their chemicals are found to have polluted state groundwater.

“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,” Judge Christopher M. Murray wrote in his 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.”

‘Ripple Effects’

The lower court opinion referred to the state’s refusal to calculate costs as a “shell game with the public.” In a dissenting opinion, Court of Appeals Judge Allie Greenleaf Maldonado said the state did what it had to.

“The APA does not require a regulatory-impact statement for one proposed rule to account for ripple effects in other rules, which is what has occurred in this case,” she said.

The ruling “stands in the way of protecting Michigan citizens from unsafe drinking water,” Katie Garvey, an attorney with the Environmental Law and Policy Center, said in an email. “Michigan stepped up by providing standards and clarity around these dangerous and emerging chemicals, and we hope the ruling is appealed and eventually corrected.”

The long-term impact of the decision remains unclear. Legal experts familiar with the lower court ruling were unsure whether EGLE would have to go back to the drawing board and redo the lengthy notice-and-comment rulemaking process, or if the state could find a way to remedy its procedural violation by issuing a new cost estimate.

When asked for what it believed the long-term impact would be, 3M said in an email that the company “supports fluorochemical regulation that is based on the best available science and established regulatory processes.”

EGLE issued a statement pledging to appeal the ruling to the Michigan Supreme Court.

“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,” the agency said.

The case is 3M Co. v. Michigan Dep’t of Env’t, Great Lakes, and Energy, Mich. Ct. App., No. 364067, 8/22/23.