Court rules against Michigan’s restrictions on PFAS in water

A new state appeals court ruling would kill Michigan’s restrictions on per- and polyfluoroalkyl substances (PFAS) levels in drinking water, if left standing.

In a split decision Tuesday, a three judge panel concluded the state failed to follow proper procedures when it became one of the first states in the nation to regulate the chemicals in 2020.

The Michigan Department of Environment, Great Lakes, and Energy (EGLE) implemented the restrictions on PFAS levels after the chemicals were found in drinking water sources around the state. It took the lead on the issue when the federal government did not –and still has not- put limits on PFAS in drinking water.

The U.S. Environmental Protection Agency has proposed federal standards that would apply to every state in the nation, but those have not yet been finalized.

If Tuesday’s ruling stands, Michigan would essentially have no enforceable limits on the so-called “forever chemicals” in drinking water.

The 2-1 ruling stems from a 2021 lawsuit by Minneapolis-based chemical manufacturer 3M, which argued Michigan’s process to develop drinking water standards was “rushed and invalid.”

The company’s primary argument was that EGLE violated the Administrative Procedures Act (APA) in making the rule because it did not properly account for all costs to business. 3M claimed that EGLE should have considered the additional costs for businesses to comply with cleaning up groundwater that was contaminated by PFAS.

The state had argued in response that it lacked the necessary information to do such an analysis, an argument that Murray wrote “does not save the day.”

The PFAS manufacturer won a partial victory in November, when Court of Claims Judge Brock Swartzle invalidated Michigan’s rules, agreeing with 3M that Michigan had skipped a necessary administrative step.

But Swartzle allowed the state to continue enforcing its rules while the two sides waited for appeal, noting that the federal government was working to establish its own nationwide standards.

A Tuesday ruling written by Judge Christopher Murray and joined by Judge Michael Gadola reached the same conclusion as Swartzle: “The rules were not promulgated in compliance with the APA, and are invalid.”

Judge Allie Greenleaf Maldonado dissented, saying the law does not require EGLE to provide the estimated costs of compliance with the “changes in the groundwater standards that were a ripple effect of the new rules governing drinking water.”

After a task force put together by then Governor Rick Snyder discovered how widespread the PFAS contamination was, the state felt some safeguards needed to be put in place. A report by the Michigan PFAS Action Response Team found about one out of ten public water systems had detectable levels of PFAS.

The Centers for Disease Control reports animal studies found PFAS can cause damage to the liver and the immune system. Exposure to PFAS also caused low birth weight, birth defects, delayed development, and newborn deaths in lab animals.

Under Governor Gretchen Whitmer, Michigan established its municipal PFAS drinking water standard in 2020. It was widely praised, following years of growing concern about widespread contamination from a largely unregulated class of chemicals. It then used the standard to establish cleanup criteria for PFAS-tainted groundwater.

In a statement, EGLE said “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.”

The lower court stayed the effect of its ruling until all appeals are exhausted. EGLE has the option to appeal to the Michigan Supreme Court.

Environmental groups have voiced disappointment in the court’s ruling.

“That is a pretty dire circumstance and I think that 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,” said Tony Spaniola, co-chair of the Great Lakes PFAS Action Network, in an interview with the Michigan Public Radio Network.

The Michigan Sector of American Water Works Association said nothing changes for the moment.

“Community water supplies will continue to monitor until they're told otherwise,” said Bonnifer Ballard, Executive Director of the organization, which works on behalf of water purification plant managers and workers.

“We would actually encourage communities who have known quantity of PFAS in their water supply to continue monitoring. It's really the best way to ensure they're appropriately treating the water that they have,” she added.

One treatment plant, Ann Arbor, confirmed it plans to continue to treat PFAS contaminated water.

“We have no intention of changing our treatment strategy for PFAS. We will content to do what we can do to remove the PFAS regardless what the state decides,” said Molly Maciejewski, Interim Water Treatment Services Manager.

There are now 280 sites of known or suspected PFAS contamination in Michigan, from former chrome-plating facilities to landfills and military sites. Attorney General Dana Nessel has relied on Michigan’s standards to sue companies in pursuit of cleanups. 

3M’s challenge to state standards comes as it faces a wave of litigation over its role in the country’s PFAS contamination crisis. In June, 3M reached a $10.3 billion settlement to address federal lawsuits from hundreds of water supplies across the country. Nessel has said that deal doesn’t affect her outstanding PFAS-related lawsuit against 3M.

The Attorney General’s office did not respond to requests for comment.

The federal government’s proposed PFAS drinking water standards, which would require water utilities to limit two notorious kind of PFAS to the lowest levels detectable by modern technology, could take effect by year’s end. The federal rules do not cover some other PFAS compounds that Michigan regulates.