LANSING, Mich. (Legal Newsline) - A Michigan appeals court has struck down the state's limits on chemicals known as PFAS in drinking water, finding regulators failed to show how much it would cost businesses to comply.
That violates the Administrative Procedure Act, a three-judge panel of the Court of Appeals held Aug. 22 in affirming a Court of Claims decision. 3M's success in the case comes two weeks after a similar challenge to New Jersey limits failed.
Michigan was one of the first states to set is own limits on PFAS, which bioaccumulate in the body and have been dubbed "forever chemicals." Michigan Attorney General Dana Nessel was also one of many state AGs who hired private lawyers on contingency fees to sue businesses like DuPont and 3M that made products containing PFAS, which are found in consumer products like nonstick cookware, as well as firefighting foam on military bases.
Michigan and other states passed their own PFAS limits while the federal government had only an advisory level of 70 parts per trillion. State limits came in much lower.
Rules setting maximum contaminant levels have been resisted by critics who say scientific research on their exact effects on the human body is lacking. Some studies link the chemicals to some cancers.
The Michigan Court of Appeals found the regulatory impact statement (RIS) issued while the Department of Environment, Great Lakes, and Energy was crafting its maximum contaminant level lacked key information and was therefore invalid.
The RIS included estimated costs to state and local governments, as well as businesses that operated their own water supplies. However, 3M filed suit, arguing EGLE did not provide estimates for businesses to comply with groundwater-cleanup standards.
A six-page opinion affirmed 3M's argument, though the issue could still head to the Democrat-controlled state Supreme Court (a 4-3 majority).
The Court of Appeals said EGLE was required to provide an estimate "of the actual statewide compliance costs of" the proposed rule.
"And as we have described above, and as the parties agree, 'the proposed rule[s]' resulted in modified groundwater criteria, which triggered the possibility of additional 'statewide compliance costs,'" the decision says.
"It is that triggering effect from adoption of 'the proposed [drinking water]' rules that brought into play EGLE's statutory obligation to provide 'an estimate of the actual statewide compliance costs' of any required groundwater cleanup resulting from adoption of the proposed drinking water rules."
Earlier this century, DuPont faced dozens of cases from the alleged release of PFOA around its western West Virginia plant, leading to an agreement that created a so-called "science panel." The residents around the plant won medical monitoring damages, and their health was analyzed by the science panel.
The panel believed there were links to six health issues, and litigation has continued in a multidistrict litigation proceeding in South Carolina. Though other research projects on the effects of PFAS have been debated, 3M has agreed to pay $12.5 billion to settle claims from local water districts. A group of AGs have objected to the agreement.