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Court of Appeals upholds ruling invalidating state’s PFAS rules

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During the rulemaking process, the state Department of Environment, Great Lakes and Energy (EGLE) was required by law to outline expected costs of compliance in a regulatory impact statement

The Michigan Court of Appeals has ruled against the state’s 2020 PFAS drinking water standards.

Per- and polyfluoroalkyl substances, or PFAS for short, are a group of chemicals known for taking a very long time to break down. They’ve earned the nickname “forever chemicals” and have been tied to certain types of cancer.

In 2019, after discovering the presence of PFAS in many of the state’s drinking water sources, regulators moved to set limits. Those rules took effect in 2020.

During the rulemaking process, the state Department of Environment, Great Lakes and Energy (EGLE) was required by law to outline expected costs of compliance in a regulatory impact statement.

It did so for public water supplies but not for groundwater, leading the company, 3M, to sue. The company argued the rules affected groundwater regulations too, and the impact statement should have accounted for that.

In 2022, the Court of Claims ruled in 3M’s favor.

“A department cannot skirt this statutory requirement during Rulemaking A by promising to address the costs later in Rulemaking B, but then when later comes, ignoring the costs in Rulemaking B because the criteria were already set in Rulemaking A,” Judge Brock Swartzle wrote in his opinion.

Now, a split appeals court affirmed that decision. In the court’s opinion, Appellate Judge Christopher Murray acknowledged EGLE’s stance that it didn’t have enough information to make estimates for groundwater compliance.

“According to EGLE, it was permitted to determine that it was factually incapable of making an estimate and that the Court of Claims should have deferred to its administrative expertise when making that determination. However, MCL 24.245(3)(n) does not contain any such exception,” Murray wrote for the court.

The dissenting judge on the panel, Judge Allie Greenleaf Maldonado agreed that EGLE appeared to have found a loophole against needing to calculate the extra costs. But she concluded, it was up to the state Legislature to fix, not courts to decide.

“The Legislature decided to tie groundwater-cleanup standards directly to drinking-water standards. 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,” Maldonado wrote.

The lower court’s ruling left the rules in place while the state exhausts the appeals process. The state’s interpretation of the Court of Appeals’ decision is that the higher court’s ruling keeps that stay intact.

EGLE said it plans to appeal.

“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.

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,” department spokesperson Hugh McDiarmid said in a written statement.

For its part, 3M said it’s not against regulation.

“3M supports fluorochemical regulation that is based on the best available science and established regulatory processes,” the company said in an emailed statement.

Meanwhile, environmental activists are supporting the state’s efforts to keep its PFAS drinking water standards alive.

Tony Spaniola co-chairs the Great Lakes PFAS Action Network. He said the decision is based around a narrow technical issue.

“What is important to note is that nowhere either in the Court of Claims decision, which is the trial court, or in the Court of Appeals decision has there been any statement or any challenge to the scientific basis for the standards that were set by the State of Michigan,” Spaniola said.

He added a rollback of the drinking water standards would lead to a “dire circumstance.”

“I think that some folks are going to have to think long and hard in the court system and beyond as to why they would allow a rollback of a regulation that’s there to protect public health,” he said.

EGLE notes other PFAS and water quality standards remain untouched by the lawsuit.

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