Appeals court nixes Michigan PFAS water limits in ruling for 3M

A Michigan Court of Appeals panel has struck down state restrictions on per- and polyfluoroalkyl substances (PFAS) levels in drinking water, but left the regulatory rules in place as the state pursues an appeal. 

In a split decision Tuesday, the 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. Most critically, the judges found, the state had failed to fully consider the costs to businesses of complying with the new limits.

The Michigan Department of Environment, Great Lakes, and Energy (EGLE) implemented the restrictions on PFAS levels in 2020 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. 

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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 filed 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 said 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 appeals court Judge Christopher Murray  wrote “does not save the day” for the state’s position. 

3M won a partial victory in November, when state 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 an appeals ruling, noting that the federal government was working to establish its own nationwide standards.

The ruling Tuesday, with Murray and Judge Michael Gadola in the majority, 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 administrative law in question did 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-Michigan Gov. Rick Snyder discovered how widespread 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-in-10 public water systems had detectable levels of PFAS.

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

Under Gov. 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. The state then used the stricter 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.”

EGLE now has the option to appeal the ruling to the Michigan Supreme Court.

The agency said that while it “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.” 

Environmental groups also voiced disappointment.

“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 Section of the American Water Works Association noted that 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 (a) 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 said.

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

“We have no intention of changing our treatment strategy for PFAS. We will continue 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. Michigan 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 involving hundreds of water supplies across the country. Nessel has said that deal doesn’t affect her outstanding PFAS-related lawsuit against 3M.

Nessel’s office did not immediately respond to requests for comment Wednesday on the court ruling.