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PFAS Rulings in South Carolina & Michigan Shine a Light on the Fact We Have No Idea What Removing PFAS From Our Environment is Going to Cost
Thursday, August 24, 2023

This week Judge Gergel tentatively approved the $1.2 billion settlement between DuPont (and related companies) and water suppliers now dealing with the fact that EPA and many States have concluded that the most minute concentrations of PFAS in drinking water present an unacceptable risk to human health.

In approving the settlement Judge Gergel overrode an objection that the "allocation procedures" specified in the settlement do not provide water suppliers sufficient information to make an informed decision about whether or not to join the settlement.  Attorneys Generals for three States and the District of Columbia had also objected to the settlement but those objections were withdrawn.  A "Final Fairness Hearing" will now take place on December 14.

A separate $12.5 billion settlement between the same water suppliers and 3M awaits the resolution of objections by 20 states, including the Commonwealth of Massachusetts, plus the District of Columbia and the Commonwealths of Puerto Rico and the Northern Mariana Islands. 

One might think almost $24 billion (when you also count the $10 billion appropriated by Congress last summer) seems like a lot of money to deal with the PFAS in our drinking water. 

That brings me to the decision on the very same day by two of three Judges of the Michigan Court of Appeals invalidating, for now, new limits on concentrations of PFAS in drinking water set by the Michigan Department of Environment, Great Lakes, and Energy (EGLE).

3M sued the Michigan EGLE for violating the State's Administrative Procedures Act in failing to estimate the costs of complying with the new state groundwater clean up standards that would automatically flow from the new PFAS in drinking water limits.

The regulators responded that they were not required to estimate these costs because they lacked the necessary information to do so.   

Two of the three Judges of the Michigan Court of Appeals who heard the case agreed with the Trial Court Judge that Michigan law doesn't excuse the regulators from estimating the costs of complying with the new drinking water limits even if the regulators say that any such estimate wouldn't be worth the paper on which it is printed.

Undoubtedly Michigan's highest court will be getting involved in the litigation between 3M and the Michigan regulators but, in the meantime, it is worth noting that these regulators readily admit that they have no idea how much it will cost to comply with the PFAS standards they have determined are necessary to protect human health.  It is highly doubtful that EPA or any other State Regulator is better situated to make this calculation.   

Regardless of what Michigan law requires of its regulators, we should be working as hard as we can to estimate the costs of removing PFAS from our drinking water, and the costs of removing PFAS from our environment.   Whatever those costs are, they aren't the same and we should  make sure we have the resources necessary to meet our goals, or to adjust them.

A Michigan Court of Claims judge in November agreed with 3M and ruled that EGLE violated the state's Administrative Procedures Act by failing to include a cost analysis in its regulatory impact statement of the rules. The judge paused enforcement of the ruling in December while the state appealed. The panel majority on Tuesday rejected regulators' claim that estimating the compliance costs would be too complicated and likely inaccurate since EGLE didn't know the number of PFAS contamination sites in Michigan or what it would take to clean up each site. Michigan law includes no exception that would allow the department to avoid including a cost analysis in its impact statement just because regulators concluded an estimate was impossible, the judges said.

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