3M sues Michigan, seeks to invalidate PFAS drinking water rules

By Garret Ellison | gellison@mlive.com

LANSING, MI — Minnesota chemical manufacturing giant 3M has sued the state of Michigan, claiming the state’s new drinking water limits for the toxic “forever chemicals” known as PFAS are flawed because they were created through a “rushed and invalid regulatory process.” The lawsuit, filed in the state Court of Claims on April 21, seeks to invalidate the state’s drinking water limits and groundwater cleanup criteria for seven different per- and poly-fluoroalkyl substances, or PFAS, that went into effect last summer. The state regulatory standards, known as Maximum Contaminant Limits, or MCLs, restrict the amount of PFAS allowed in public water supplies and require regular testing. Michigan is the latest state with PFAS standards to face a challenge by 3M, which makes and sells the chemicals and has fought regulations meant to limit their exposure to humans. In its filing, 3M called the state’s rules “scientifically flawed” and alleged the Michigan Department of Environment, Great Lakes and Energy (EGLE) did not follow proper administrative procedure; instead, developing the rules in haste to meet an “unrealistic timeline requested by the governor.” The company alleges the state failed to properly evaluate costs of compliance with the rules for water providers who may have to upgrade their systems to filter the contaminants. The case has been assigned to Judge Colleen O’Brien, who was appointed in 2015 by former Gov. Rick Snyder. In a statement, Michigan Attorney General Dana Nessel called the lawsuit an “irresponsible attack” that she’ll move to have dismissed in court. “We will not tolerate these poisons in our environment and our drinking water, and we will not tolerate a corporation like 3M putting its dollars ahead of our health and our water,” she said. With the filing, Michigan becomes the lates state to face a challenge to its PFAS limits in drinking water from chemical makers. 3M is pressing a similar case in New Jersey and lost a challenge in New Hampshire after the state legislature passed a law adopting that state’s standards. States have filled the regulatory gap with drinking water limits for PFAS in recent years because the U.S. Environmental Protection Agency does not regulate the chemicals in drinking water. The EPA only relies on an unenforceable health advisory level that multiple states and numerous advocates and academics have called inadequate protection. Michigan delegates in Congress are pushing the EPA to develop national standards for the individual compounds PFOS and PFOA within two years though bipartisan legislation. In March, the EPA under President Joe Biden said it was moving forward with developing standards under the Safe Drinking Water Act after the agency pledged its long-awaited commitment to do that on Donald Trump’s last full day in office. In Michigan, Gov. Gretchen Whitmer, a Democrat, ordered EGLE to begin drafting PFAS drinking water standards in March 2019 for seven different PFAS compounds following toxicology reviews that started in 2018 under Gov. Snyder, a Republican. The new rules took effect in August 2020 after a joint committee on administrative rules in the Republican-controlled state legislature declined to block them. The rules cleared a controversial environmental rules oversight panel last summer. They were opposed by 3M, the Michigan Manufacturers Association (MMA) and the Michigan Chemistry Council (MCC), and supported by environmental and citizen groups. Their passage marked the first time Michigan developed its own drinking water standards for a contaminant rather than adopting or modifying existing federal standards. The new limits (in parts-per-trillion, or ppt) are: PFNA (6-ppt); PFOA (8-ppt); PFOS (16-ppt); PFHxS (51-ppt); GenX (370-ppt); PFBS (420-ppt); PFHxA (400,000-ppt). The rules require PFAS testing and compliance from about 2,700 utilities, schools, hospitals and large businesses in Michigan that provide water to the public. PFAS chemicals are considered harmful at the low parts-per-trillion level in the bodies of people exposed to them. Some are known to increase the risk of kidney and testicular cancer, suppress immune system response, and cause pregnancy complications and low birth weights. Statewide drinking water testing launched in 2018 following the discovery of widespread contamination in Kent County groundwater subsequently found the chemicals at some level in public water serving about 1.9 million people in Michigan. The most egregious example was in Parchment, where PFAS were found at very high levels in the public water system. 3M and Georgia-Pacific, which owned a paper mill and landfill inked to the contamination, settled a class action lawsuit with local residents in April for $11.9 million In 2020, the city of Kalamazoo agreed to accept $5.4 million from 3M and Georgia-Pacific to cover costs from connecting its water system to homes in Parchment and Cooper Township. Nationally, litigation costs for 3M are mounting as the number of lawsuits over PFAS continues to build. Bloomberg reported in January that 3M spent about $214 million on PFAS litigation during the fourth quarter of 2019 alone. Last year, 3M agreed to pay $55 million to help footwear giant Wolverine World Wide cover the cost of extending water mains to contaminated areas of Kent County where Wolverine polluted the groundwater with 3M Scotchgard waste. In its filing, 3M cited a recent decision by Kent County Circuit Court Judge George J. Quist, who dismissed a lawsuit against 3M and Wolverine in January on the grounds that plaintiffs Ron and Mary Brimmer of Belmont did not have PFAS levels in their well that exceeded Michigan’s drinking water standards. Sandy Wynn-Stelt, a Belmont widow and PFAS activist whose husband Joel died in 2016 after drinking groundwater poisoned by Scotchgard waste from Wolverine’s House Street dump, called the 3M filing “deplorable.” “3M’s attempt to dismantle these standards now, when we are making real progress on identifying toxic PFAS contamination and protecting our drinking water, is deplorable,” she said. “PFAS contamination is impacting people’s lives across the state, and the drinking water standards set in place last year are a critical step to protecting others from being poisoned.” Paul Albarran, a Varnum law firm attorney who represents the Brimmers, Wynn-Stelt and hundreds of other Kent County plaintiffs suing the two companies, criticized 3M. “Talk about a company that just continues to shirk responsibility, and has gone so far as to now sue the government for trying to protect people’s health,” Albarran said. “I can’t believe it.” 3M is already involved in litigation with the state of Michigan over PFAS. Nessel has sued 3M and other PFAS manufacturers in court, claiming they hid the potential hazards of products made with the chemicals such as firefighting foam. Through two lawsuits, the state is seeking damages and cost recovery from 3M for tackling PFAS contamination, which has been found at more than 160 locations in across Michigan. In an emailed statement Friday afternoon, 3M reiterated its lawsuit claims against the state. “Environmental regulations should be set using established processes and rigorous science that provide public transparency and accountability for regulators,” wrote 3M spokesperson Sean Lynch, “In its rush to establish these regulations, the State of Michigan acted arbitrarily without measured consideration of the scientific evidence, nor serious consideration of the costs, particularly considering the speculative benefits of these regulations’ enforcement. This lawsuit aims to prevent these arbitrary, burdensome restrictions from being implemented unless regulators follow prescribed processes for rulemaking.” Nessel and EGLE issued a joint news release blasting the attempt to “gut” Michigan’s PFAS rules. “3M profited for years from its sale of PFAS products and concealed its evidence of adverse health impacts from state and federal regulators,” Nessel said Friday, May 7. “It is no coincidence that this out-of-state company is resorting to attempts to rewrite our state’s standards put in place to protect Michiganders from PFAS in their drinking water. 3M knows it is responsible to address contamination in Michigan and it has been unwilling to do so. Now, it wants to change the rules so that it can continue to shirk its responsibility to Michigan residents and to the health of the water resources that define our state.” Michigan EGLE director Liesl Clark expressed confidence in the state’s rules development process. “Michigan’s rules providing for limits on PFAS in drinking water are a critical part of our state’s work to protect our residents from exposure to these contaminants,” said Clark. “We take the job of protecting the public health seriously, and these rules are the product of rigorous scientific analysis, stakeholder input, public comment, and legislative review. We are confident in the process and the science that supports these important health protections for Michiganders’ drinking water.” Ironically, Saturday May 8 marks the conclusion of Drinking Water Awareness Week in Michigan.