We previously wrote regarding a Michigan state court ruling that struck down Michigan’s PFAS regulations related to drinking water enforceable limits. In December, the state’s environmental agency appealed the ruling. While several arguments were advanced by 3M in challenging Michigan’s PFAS drinking water standards, the lower court ultimately found in favor of 3M because it felt that the state, when creating the drinking water standards, did not adequately consider the cost implications of the standards. The Court stayed the ruling to allow for the parties to appeal and in the coming days, the state will likely file briefing detailing its arguments.
The significance of the legal battle in Michigan is that the arguments and lower court ruling provide clues as to similar arguments that we predict will be advanced when certain companies challenge federal drinking water standards and the CERCLA PFAS designation in courts.
Michigan PFAS Regulations
Michigan recently enacted PFAS drinking water standards for seven types of PFAS – PFOA (8ppt), PFOS (16ppt), PFNA (6ppt), PFHxA (400,000ppt), PFHxS (51ppt), PFBS (420 ppt) and the Gen-X chemical HFPO-DA (370 ppt). 3M challenged the regulations in court on three grounds: (1) Michigan had not shown that the standards were necessary, (2) the standards were enacted in a manner such that they were arbitrary and capricious and (3) there were deficiencies in the state’s regulatory-impact statement (a required part of the regulatory process). The Court dismissed the first two arguments; however, it found in favor of 3M on the third ground. In short, the Court found that Michigan had not properly considered the cost impacts of the standards to companies and so the impact statement that was written was faulty.
While the ruling technically does strike down the Michigan regulations, the Court also ruled that it would stay its decision and not make it effective until final judgment is entered. As such, the Michigan PFAS regulations will remain in effect during the period of time when the current appeal is pending. The Court also made note that the entire lawsuit and the drinking water standards could be moot if the EPA’s drinking water standards are ultimately more aggressive than Michigan’s.
Impact On PFAS Developments
The Michigan court ruling certainly demonstrates to companies contemplating whether to legally challenge the EPA’s upcoming PFAS drinking water MCLs or the proposed CERCLA designation of PFOA and PFOS that there are courts willing to scrutinize the undertaken legislative process to ensure that all necessary procedures were followed. This will be especially important as we have previously predicted that the drinking water standards are likely to be challenged on grounds similar to the Michigan lawsuit (as well as others) and the CERCLA designation is likely to be heavily opposed in court proceedings due to the EPA not conducting a rigorous RIA process.
CMBG3 Law is following judicial, legislative, administrative, and scientific developments relating to PFAS. More information about the services we can provide, including risk assessments, to ensure your business is ready for any intersection with these substances can be found on our PFAS Litigation page.
Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact the Chair of our PFAS – Toxic Torts Team: John Gardella.