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Published in Michigan Environmental Law Journal, Summer 2019, Vol. 37, No. 1, Issue 106 [view full issue].
Cite: 37 Mich Env Law J 1 (2019)

by Elizabeth Burns, J.D. Candidate 2020, Elisabeth Haub School of Law at Pace University

Thanks to scientific advancements, scientists can detect and track chemicals in the environment today that they could not before. For example, they have developed the ability to test for and identify chemicals in the parts per trillion range, allowing them to quantify substances previously understudied. When new evidence is published about these chemicals, one question always comes to mind: how are these chemicals going to be regulated? Sometimes, current statutes are already addressing these chemicals or have the means for doing so. Other times, statutes need to be amended to accommodate new scientific findings of toxicity. Especially at the federal level, this process can take years. If leaders and concerned citizens want a more expedited solution, they can turn to the statutes already enacted in their states. Many states have comprehensive environmental statutes that address issues of environmental pollution and human health. 

This article explores one of those statutes, the Michigan Environmental Protection Act, in the context of new scientific studies regarding per- and polyfluoroalkyl chemical substances. The first part of this article examines Michigan’s historical and current actions to address PFAS contamination.^[1] Then the article analyzes the Michigan Environmental Protection Act, reviewing its statutory language and interpreting caselaw to make a case for how its remedies could be used to address PFAS contamination, such as placing conditions on the use of PFAS, requiring polluters to clean up PFAS contamination, and forcing the State government to establish new PFAS regulations.

PFAS in Michigan

PFAS have now been detected in the water systems in 49 states.^[2] Michigan is one of these states experiencing a growing PFAS problem. This problem does not stop at Michigan’s borders. The drinking water contamination detected in sites throughout the State also contain tributaries to larger rivers and the Great Lakes, sources of water for neighboring states, and even Canada.^[3]

Six years ago, Robert Delaney, an employee at the Michigan Department of Environment, Great Lakes, and Energy (EGLE) (formerly the Michigan Department of Environmental Quality)^[4] and Superfund specialist, wrote a report to the Michigan government warning of an impending environmental crisis.^[5] He specifically noted how high levels of PFAS documented in fish and pollution in the Great Lakes and other water bodies of the state would pose a “significant exposure” to Michigan residents.^[6] “Communities with fire training facilities, other Department of Defense (DOD) bases, metal platers, other major airports, major transportation corridors, and other industrialized areas all could have extensive contamination by (PFAS),” Delaney wrote.^[7] Not until November 2017 did Governor Rick Snyder’s Administration begin taking the threat posed by PFAS contamination seriously. He created the Michigan PFAS Action Response Team (“MPART”) to begin testing drinking water sources around the State for elevated PFAS levels.^[8] With the creation of MPART, Michigan became a national leader in the fight against PFAS.^[9]

MPART is “the first multi-agency action team of its kind in the nation.”^[10] MPART brings together EGLE, the Michigan Department of Health and Human Services (“MDHHS”), and other agencies who work cooperatively to investigate sources of PFAS contamination in the State, identify areas with PFAS levels above the current standard set by the State, and keep the public informed about developments concerning PFAS research and monitoring.^[11] To date, MPART has identified 34 contaminated sites in communities around the State.^[12] Contaminated drinking water sources have been found in both the Upper and Lower Peninsulas; in rural communities, cities, and suburbs; and in poor and affluent areas.^[13] The sheer scale of this problem has people wondering if this is Michigan’s next water crisis or will rival the polybrominated biphenyl (“PBB”) crisis that affected nearly all of Michigan’s nine million residents in the 1970s.^[14] Given the recent Flint Water Crisis, the State is likely desperately trying to prevent another public health crisis.

While Governor Snyder established MPART, a multi-agency taskforce, in 2017 to begin addressing the issue of PFAS contamination in Michigan,^[15] it was not until January 2018 that Michigan’s EGLE set a Cleanup Criteria Requirement under Part 201 of the Michigan Natural Resources and Environmental Protection Act (NREPA) for PFOS and PFOA for ground water used as drinking water at 70 ppt (the same as EPA’s draft health advisory).^[16] In EGLE’s 2018-2019 Annual Regulatory Plan, EGLE listed comments and concerns it had received regarding its Cleanup Criteria Requirements.^[17] The criteria in Rules 299.44-299.49 are chemical-specific levels for groundwater and soil based on best available toxicology data to protect public health.^[18] EGLE noted in its summary that public comments were received that expressed concerns that “the criteria for PFOS/PFOA are not stringent enough.”^[19] The same criteria were also criticized as being extremely complex for compliance purposes.^[20] The Plan also notes that the criteria in these rules have not been significantly updated since 2001, noting that additional data may be available for 300 substances addressed by the criteria.^[21] Similarly, a December 2018 report commissioned by MPART and written by the Michigan PFAS Science Advisory Board concluded that the 70 ppt standard may not be “sufficiently protective.”^[22] The criticisms in EGLE’s Plan and MPART’s report may have minimal impact given two bills former Governor Snyder signed into law before leaving office.

House Bill 4205, known as the No Stricter Than Federal Law, amends the Michigan Administrative Procedures Act of 1969 to prohibit the State’s agencies from adopting rules more stringent than federal law without a “clear and convincing need” to exceed the applicable federal standard.^[23] Opponents of the bill were concerned it would be “nearly impossible for Michigan to set an enforceable drinking water standard for [PFAS] substances.”^[24] In response, State Democrats presented a new bill in March of this year to repeal the No Stricter Than Federal Law.^[25] As long as the law remains in place, EGLE will be limited in setting drinking water standards for PFAS unless the Agency can show a clear and convincing need to set a standard or the Legislature passes a law setting standards for PFAS.

Senate Bill 1244 amended the NREPA to require EGLE to promulgate future cleanup criteria through the rulemaking process as opposed to unilaterally setting a standard as it did when it set the 70 ppt cleanup criterion for PFAS.^[26] EGLE has already started work under this process. Governor Gretchen Whitmer announced on March 26, 2019, that she directed EGLE to “begin the process to establish PFAS drinking water standards.”^[27] She is pushing the Agency to expedite the development of the regulations so that draft rules are ready by fall of this year.^[28] Gov. Whitmer has been applauded by both Democrats and environmentalists in the state, but State Republicans have been more cautious.^[29]

Republican Senate Majority Leader Mike Shirkey favored a full rulemaking to consider all scientific evidence available.^[30] Bonnifer Ballard, the director of the American Water Works Association in Michigan, expressed concerns that “ill-informed decisions” may arise with such an “aggressive” timeline.^[31] The Michigan Chemistry Council is also pushing back, saying federal agencies are better suited to set standards for PFAS.^[32]

Gov. Whitmer signed Executive Order 2019-3 on February 4, 2019, cementing “MPART as an established, enduring body to address the threat of PFAS contamination in Michigan, protect public health, and ensure the safety of Michigan’s land, air, and water, while facilitating inter-agency coordination, increasing transparency, and requiring clear standards to ensure accountability.”^[33] On April 11, 2019, MPART named three new environmental and health experts to a Science Advisory Work Group.^[34] The Workgroup has been charged with reviewing existing and proposed health-based drinking water standards for PFAS to determine appropriate MCLs.^[35] On June 27, 2019, the Workgroup delivered health-based values to EGLE to be used in the rulemaking process.^[36]

Meanwhile, the State of Michigan Attorney General’s Office is investigating theories of liability for the companies that have caused or contributed to PFAS contamination of drinking water resources in the state.^[37] While not binding, the cases that are popping up in other jurisdictions may help to inform Michigan courts on PFAS legal issues.^[38] For example, Kenneth and Shannon Wickenden are bringing suit in New York against Saint-Gobain Performance Plastics Corp. and Honeywell International Inc. for allegedly contaminating groundwater and ambient air with PFOA.^[39] The plaintiffs are alleging strict products liability, and negligence claims, and are seeking costs for medical monitoring, property damage, and loss of consortium.^[40] Taking a company to court for cleanup costs may be the best first step while waiting for legislators to write legislation. Michigan has a secret weapon in the fight to protect the environment: the Michigan Environmental Protection Act.

An Introduction to the Michigan Environmental Protection Act

The Michigan Constitution explicitly incorporates environmental protection into its language. The Michigan Constitution reads in part

The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.^[41]

In accordance with this Constitutional foundation, the Michigan Legislature enacted the Michigan Environmental Protection Act (“MEPA”) on June 26, 1970.^[42] In Ray v. Mason County Drain Commissioner, one of the first cases brought under MEPA, the Michigan Supreme Court referred to the “world-famous” statute as the “response to our constitutional commitment to the ‘conservation and development of the natural resources of the state….’”^[43] Ray noted MEPA was “the first legislation of its kind and has attracted worldwide attention” and has “served as a model for other states in formulating environmental legislation.”^[44] The Court went further:

The enactment of the [M]EPA signals a dramatic change from the practice where the important task of environmental law enforcement was left to administrative agencies without the opportunity for participation by individuals or groups of citizens. Not every public agency proved to be diligent and dedicated defenders of the environment.^[45]

Ray noted the importance of MEPA in allowing the public to protect the environment.^[46] Agencies were not always responsive to environmental issues, and the Michigan Legislature created the opportunity for the public to protect itself from environmental harms. MEPA is unique as it grants standing to everyone in the state to bring actions based on environmental harm, and it relies on the courts to protect the environment. It allows the courts to develop an environmental common law, and it “allows the courts to fashion standards in the context of actual problems as they arise in individual cases and to take into consideration changes in technology which the Legislature at the time of the Act’s passage could not hope to foresee.”^[47]

Standing Under MEPA

MEPA, incorporated into Part 17 of Michigan’s Natural and Environmental Resources Protection Act (NREPA), gives broad standing to the public to allow it to protect the environment.^[48] Section 324.1701(1) states

The attorney general or any person may maintain an action in the circuit court having jurisdiction where the alleged violation occurred or is likely to occur for declaratory and equitable relief against any person for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction.^[49]

This language allows any person in the state to bring an action for environmental damage against any other person, even against a company. Standing under common law in Michigan has long held that individual persons could not sue on behalf of the public.^[50] MEPA upends this notion, giving the public greater say in the protection of the State’s natural resources: air, water, and other natural resources such as trees and wildlife,^[51] whether public or private.^[52] The issue of standing under MEPA has been hotly contested, flipping back and forth between a narrower interpretation and the broader interpretation currently in place.^[53]

MEPA Establishes a Private Cause of Action

For plaintiffs to bring a successful action under MEPA they must prove a prima facie case that “the conduct of the defendant has polluted, impaired, or destroyed or is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in these resources….”^[54] The first question determines whether there is a natural resource at issue.^[55] The second question determines whether there is an impairment.^[56] “Such a showing is not restricted to actual environmental degradation but also encompasses probable damage to the environment as well.”^[57] The main question in these cases is “when does such impact rise to the level of impairment or destruction?”^[58]

The Michigan Supreme Court characterized a prima facie case “as that case sufficient to withstand a motion by the defendant that the judge direct a verdict in the defendant’s favor.”^[59] The evidence needed to prove a prima facie case will vary with the type of environmental damage alleged.^[60]

If a plaintiff were to bring a cause of action for environmental pollution due to PFAS, she would need to present different evidence depending on the extent of the damage alleged, i.e. whether the plaintiff was bringing an action on environmental pollution of the State’s waters as a whole or whether the plaintiff was bringing the action for a specific source of water. Different claims of impairment will need different types of evidence to prove such an impairment. For example, claims of large impairment areas may require studies on possible environmental effects versus claims of small impairment areas may require direct testing. The evidence needs to be sufficient to withstand a defendant’s motion for directed verdict; in other words, if viewing all evidence and inferences in the light most favorable to the plaintiff, reasonable jurors could honestly reach different conclusions,^[61] the plaintiff has established a prime facie case. Evidence necessary to prove a prima facie case may include expert testimony, chemical or medical test results, analyses, studies,^[62] and other forms of evidence tending to show the waters at issue had levels of PFAS above EGLE’s set criteria. Plaintiffs need not show multiple resources have been impacted or that such resources are “scarce” or “unique.”^[63]

A prima facie case can also be proven through showing a violation of a pollution control or antipollution standard in an environmental statute.^[64] “Where the purpose of the statute used as a pollution control standard is to protect our natural resources or to prevent pollution and environmental degradation, a violation of such a statute can establish a prima facie case under MEPA.”^[65] A violation of a statute with no pollution control standard or antipollution standard cannot serve as evidence to prove a prima facie case.^[66]

In Nemeth v. Abonmarche Development, Inc., the Michigan Supreme Court noted that a pollution control statute that did not contain a cause of action was not precluded from being used as an appropriate pollution control standard under MEPA.^[67] In Nemeth, the plaintiffs relied on the defendant’s violation of the Soil Erosion and Sedimentation Act (SESCA) to establish a prima facie case under MEPA.^[68] The fact that SESCA did not contain provisions for a private cause of action did not preclude the plaintiffs from using the violation of the statute to establish a prima facie case of environmental impairment. MEPA requires only a showing of environmental harm, degradation, or impairment, or the likelihood thereof, based on the appropriate pollution control or antipollution standard. Extrapolating from this reasoning, other environmental statutes with pollution control or antipollution standards, but without a private right of action, could support a cause of action under MEPA.^[69]

After plaintiffs have established their prima facie case, “the defendant may elect to ‘rebut the prima facie showing by the submission of evidence to the contrary.’”^[70] Again, the type and amount of evidence needed to rebut a plaintiff’s claim(s) will depend upon the type of environmental harm the plaintiff alleges.^[71] The defendant can produce evidence similar to that of the plaintiff to establish a rebuttal.

A defendant can also elect to raise an affirmative defense. In so doing, the defendant “may also show… that there is no feasible and prudent alternative to defendant’s conduct and that such conduct is consistent with the promotion of the public health, safety and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment or destruction.”^[72] A defendant raising an affirmative defense must prove both of these elements.^[73] Courts have balanced pollution and public health, “‘saying that some balance has to be maintained between absolutely no pollution and the carrying on of activities necessary to human existence.’”^[74] The court will balance interests on a case-by-case basis only where appropriate, “‘unless there are definite standards set.’”^[75]

If a defendant offers a sufficient rebuttal, the plaintiff’s case is not dead. He may recover by proving an environmental impairment by a preponderance of the evidence.^[76]

MEPA Authorizes Judicial Review of Environmental Regulations

While MEPA gives a lot of power to citizens to bring suits against polluters, it also gives courts a lot of power in adjudicating environmental cases. Courts are to afford no deference to agency determinations in reviewing a claim under MEPA.^[77] Deference to agency determinations is inappropriate because MEPA requires the court “to exercise its independent judgment as to whether the agency activity prevents the likelihood of pollution, impairment, or destruction claimed by the plaintiffs.”^[78] The reasoning behind such authority is so “‘courts may inquire directly into the merits of environmental controversies, rather than concern themselves merely with reforming procedures or with invalidating arbitrary or capricious conduct.’”^[79] Courts can also direct the adoption of a new standard specified by the court if it finds a current standard to be deficient.^[80] “[T]he MEPA specifically authorizes a court to determine the validity, reasonableness, and applicability of any standard for pollution or pollution control ‘and to specify a new or different pollution control standard if the agency’s standard falls short of the substantive requirements of MEPA.’”^[81]

Trial judges have been reluctant to substitute their independent judgment for that of an agency’s technical expertise.^[82] However, courts can remit the matter for administrative, licensing, or other proceedings while still maintaining original jurisdiction.^[83] The court may grant a temporary injunction as necessary to protect natural resources and has the ultimate say in whether adequate protection from pollution has been afforded.^[84]

MEPA and the Common Law

MEPA is considered the “common law of environmental quality” for the State of Michigan.^[85] The Michigan Court of Appeals described MEPA as “a legislative recognition of the ancient powers of a court to hear nuisance cases, balance equities and fashion suitable remedies.”^[86] MEPA is based on notions of common law torts such as nuisance.^[87]

Some state statutes preclude bringing private actions under MEPA. Where a statute precludes action under MEPA, courts lack jurisdiction to apply MEPA.^[88] If there is no explicit statutory preclusion, MEPA can be used to challenge conduct otherwise authorized by other statutes.^[89] Other statutes expressly incorporate MEPA.^[90] MEPA can also be used in conjunction with other federal environmental laws where not pre-empted.^[91] It “creates a state environmental common law that is unaffected by federal law, and creates an independent state action that is unaffected by anything that happens in the federal sphere of government.”^[92]

MEPA and PFAS

MEPA authorizes a court to grant various forms of relief, such as declaratory and equitable relief;^[93] adoption of a standard where a standard that is in place is found to be deficient;^[94] imposition of conditions on a defendant to protect the air, water, and other natural resources;^[95] and prevention of the authorization of conduct that will have the effect of polluting, impairing, or destroying the air, water, or other natural resources.^[96] Other traditional remedies and forms of equitable relief available under common law claims are also available to MEPA plaintiffs.

MEPA as a Tool to Force Private PFAS Action

Under Mich Comp Laws 324.1704(1), courts “may grant temporary and permanent equitable relief or may impose conditions on the defendant that are required to protect the air, water, and other natural resources or the public trust in these resources from pollution, impairment, or destruction.”^[97] For example, the trial court in Nemeth granted an injunction where the plaintiffs used the defendants’ violation of an environmental statute to establish that the defendants had violated MEPA.^[98] Nemeth held that the plaintiffs’ prima facie case that the defendants’ had violated the Soil Erosion and Sedimentation Control Act was sufficient to show that the defendants’ actions were harming the environment and therefore justified an injunction under MEPA to prevent further harm.^[99] As shown by Nemeth, a court can require a defendant to cease actions determined to be the cause of pollution and/or require him to clean up existing pollution upon a showing of a violation of a pollution control or antipollution standard in another environmental statute or regulation if that violation is likely to result in environmental impairment. Private plaintiffs do not have to wait for agencies or the government to bring a cause of action on behalf of the public or state; MEPA extends private rights of action to private plaintiffs.

Using the PFAS cleanup criteria standard as a pollution control standard under MEPA, a plaintiff could prove a prima facie case of a defendant’s MEPA violation by showing only that PFAS levels in specific waters are above the 70 ppt standard set by the State. Through this process a plaintiff could get injunctive relief for an active site, perhaps relief beyond that afforded to her under the State cleanup laws. Recall MEPA’s injunctive relief provisions are broad—the court “may impose conditions on the defendant that are required to protect the air, water, and other natural resources.”^[100]

For example, MEPA allows a court to impose additional monitoring obligations on a defendant so as to protect the environment.^[101] In Wayne County Department of Health v. Olsonite Corp., the court required the defendant to explore other forms of odor control.^[102] In the case of PFAS, for example, a MEPA action brought against Wolverine World Wide (Wolverine) for PFAS pollution of nearby water sources and soil^[103] could seek the imposition of a public outreach program.^[104] Wolverine has been investigating and remediating PFAS since it was discovered in 2017 and has complied with requests from EGLE to conduct sampling and investigations.^[105] Given that chemicals used by the former tannery are leaking into the Rouge River,^[106] requiring the company to institute protective measures and complete the investigation into the release of PFAS into the environment^[107] would help shift costs to the polluter as Wolverine would be in charge of funding the remediation of unpacked soils or water.

“Restoration of the natural habitat is a proper remedy under the [M]EPA.”^[108] Where conduct of the defendant polluted, impaired, or destroyed the air, water, or natural resources of the state, the court can order restoration to undo environmental harm.^[109] Again, in the example of Wolverine, a court could instruct Wolverine to restore the Rouge River and surrounding area near the factory to what it was like before the tannery dumped chemicals into the environment. This would require the tannery to perform cleanup efforts, and therefore shift the costs of remediation back to the polluter. Wolverine is already required to perform such cleanup under Part 201 of the Natural Resources and Environmental Protection Act, but MEPA, through injunctive relief, could impose further conditions that would require Wolverine to prevent future PFAS contamination. However, any MEPA relief would need to comply with Part 201,^[110] as some cleanup response activities are exempt from MEPA under the Remediation Act.^[111] For example, MCL 324.20142(1) states, “a person who has complied with the requirements of this part or is exempt from liability under this part is not subject to a claim in law or equity for performance of response activities under part 17 [MEPA]….”^[112] As long as cleanup activities are being performed under the requirements of Part 201, a person could not raise a claim under MEPA for performance of response activities.^[113] Permitted releases do not fall under the exemption in MCL 324.20142(1), and a person can still seek recovery of costs or damages through other applicable law such as MEPA.^[114]

Where a plaintiff fails to meet the requisite level of statutory impairment, an injunction will not be issued.^[115] Some defendants may be able to establish affirmative defenses to their PFAS contamination. Industry sectors that were required by law to use PFAS may be able to rebut a MEPA claim. For example, the EPA required plating companies to use PFOS-containing mist suppressants to reduce chromium air emissions.^[116] These were considered to be best available technology at the time.^[117] Given many of these industries have also begun cleanup of their PFAS releases, coupled with requirement by law to use these substances, a court could find an affirmative defense to a plaintiff’s claim.

Additionally, MEPA does not specifically provide an award for damages; the court, at its own discretion, can award costs under MEPA.^[118] For example, a court could award plaintiffs the reimbursement of monitoring and water testing costs upon proper showing of a prima facie case of environmental harm. Attorney’s fees cannot be awarded under MEPA.^[119]

While the court’s injunctive relief authority under MEPA could prove to be a powerful tool to prevent future PFAS contamination, an injunction is not likely to help historically contaminated sites that are already being addressed by State cleanup laws. This is where MEPA’s provisions authorizing judicial review of environmental regulations may prove useful.

MEPA as a Tool to Force Government PFAS Action

Using MEPA, courts can adopt new pollution control standards where current standards are deficient.^[120] In order to adopt new standards, the court must perform a de novo review of current agency standards.^[121] Where these standards are found to be deficient, the court can impose new or different standards.^[122]

Currently, the Cleanup Criteria Requirements for Response Activity for PFOA and PFOS in groundwater used for drinking water is set at 70 ppt.^[123] While this standard is also the drinking water lifetime health advisory set by EPA,^[124] it has been criticized as too high and unprotective of human health.^[125] If a plaintiff were to bring an action under MEPA to impose a more stringent standard for PFAS, the cause of action would need to be worded carefully as the statute focuses on protection of the environment, not human health. As Nemeth explained, “Where the purpose of the statute used as a pollution control standard is to protect our natural resources or to prevent pollution and environmental degradation, a violation of such a statute can establish a prima facie case under MEPA.”^[126] A plaintiff would need to show that the PFAS cleanup criteria was implemented to protect human health and the environment. Then, for a court to change the PFAS cleanup criteria standard, a plaintiff would need to provide evidence that the regulatory standard is improper for the health and protection of the environment, which may be done by producing evidence of the negative effects on wildlife that are in contact with the contaminated water. This may be enough to satisfy the statutory evidentiary requirement so that a court would impose its own standard that is stricter than the 70 ppt currently in force in Michigan.

Now that EGLE is initiating the process of creating further regulations for PFAS, once such regulations are approved, a plaintiff can bring a MEPA action where the court would need to review de novo whether EGLE’s new standards are sufficient to protect against pollution, impairment, or destruction. If these standards fall short, a court could establish new standards that it determines are more protective of Michigan’s natural resources. This method of review ensures that any agency standards meet the current expectations of environmental protection

Conclusion

The new horizon of PFAS regulation presents a unique opportunity for Michigan to become a leader in addressing contamination issues. The State already has a strong law on its books; it only needs to decide how it wants to use this law. Given the language of MEPA, Michigan lawmakers and courts could address PFAS contamination in a MEPA action. MEPA allows any person to bring a claim to protect Michigan’s environment. This opens the door for entities to bring actions to obtain money for costs related to PFAS contamination damage, such as remediation research cleanup efforts, and monitoring efforts. Given the disaster that was the Flint Water Crisis, Michigan needs to step up its protection of state resources, especially in areas where funds are limited and local governments are unable to engage in monitoring and treating of PFAS contamination.

MEPA is famous for being a trailblazing statute in the environmental field. It is a legal course of action to address environmental harm that has already proved successful. While EGLE begins the process of determining new PFAS standards for drinking water, MEPA gives Michiganders the opportunity to bring actions to protect the environment against further contamination and address the contamination that has already occurred. In the meantime, courts could begin establishing standards beyond the 70 ppt currently set if they so find that such standards are warranted. Evidence of health impacts due to high levels of PFAS in drinking water would make a strong case for stricter standards. While the legislature is beginning its own process to set strict, enforceable standards for drinking water, the public can look to the courts for a timelier response to begin requiring cleanup of contaminated sites to current Cleanup Criteria Requirements for Response Activity criteria for groundwater and soil. It is time to hold the parties responsible for polluting drinking water sources with these chemicals accountable, and it is time to revisit MEPA to start that process. Hopefully, MEPA can again serve as a role model for other states to use in their fight against PFAS.

*For an earlier discussion PFAS see The ABCs of Emerging Contaminants by Charles M. Denton in the MELJ's spring 2018 issue and Perfluoroalkyl Compounds: An Emerging Contaminant in Michigan by Rachard Baron, Benjamin Fruchey, and Nicholas Andrew in the MELJ’s fall 2017 issue.

[1] This article is an excerpt of a longer Note in which the author provides a thorough background regarding studies on the health effects of PFAS as well as a discussion of possible methods of regulating PFAS under various federal statutes. For a copy of the full note, please contact the author.

[2] Environmental Working Group & Social Science Environmental Health Research Institute, Mapping the PFAS Contamination Crisis: New Data Show 712 Sites in 49 States (accessed Aug. 11, 2019).

[3] Id.

[4] The Michigan Department of Environmental Quality’s (MDEQ) name changed to the Department of Environment, Great Lakes, and Energy before this article was published. Some sources may still contain MDEQ as they were published before the name change.

[5] DEQ FOIA Response, DeGrandchamp & Delaney, Michigan’s Contaminant Induced Human Health Crisis: Addressing Michigan's future by facing the challenge of the evolving nature of environmental contamination dated 2012, p 80 (Jan. 8, 2018);

 See also Ellison, Major Warning About Michigan PFAS Crisis Came 6 Years Ago, MLive (July 10, 2018).

[6] Delaney & DeGrandchamp, Michigan’s Contaminant Induced Human Health Crisis at p. 80.

[7] Id.

[8] State of Michigan, About MPART (accessed May 13, 2019).

[9] State of Michigan, MPART Home Page (accessed May 13, 2019).

[10] Id.

[11] State of Michigan, supra n 8.

[12] Michigan Department of Environment, Great Lakes, and Energy, Michigan PFAS Sites Being Investigated (accessed May 13, 2019).

[13] Id.

[14] Gardner & Ellison, Michigan’s Next Water Crisis is PFAS- And You May Already Be Affected, MLive (July 10, 2018).

[15] State of Michigan, supra n 8.

[16] MCL 324.20104 (allowing EGLE to promulgate rules necessary to implement the (NREPA); Mich Admin Code R 299.6(9) (authorizing EGLE to identify hazardous substances not listed by rule and set cleanup criterion); see also Ellison, Michigan Abruptly Sets PFAS Cleanup Rules, MLive (Jan. 9, 2018).

[17] Michigan Department of Environment, Great Lakes, and Energy, Department of Environmental Quality Annual Regulatory Plan (accessed May 13, 2019). EGLE releases an Annual Regulatory Plan each year to address areas of regulation where lawmakers or the public have raised concerns, questions, or inadequacies. This report is where the comments and concerns were discussed.

[18] Mich Admin Code, R 299.44-299.549.

[19] Michigan Department of Environment, Great Lakes, and Energy, supra n 17.

[20] Id.

[21] Id.

[22] Michigan PFAS Science Advisory Panel, Scientific Evidence and Recommendations for Managing PFAS Contamination in Michigan, p 59 (“If one accepts the probable links between PFOA exposure and adverse health effects detected in the epidemiological literature as critical effects for health risk assessment, then 70 ppt in drinking water might not be sufficiently protective for PFOA.”).

[23] 2018 PA 602; MCL 24.232(8); see also LeBlanc, Bill That Curbs Rules Stricter Than Fed Level Heads to Gov’s Desk, The Detroit News (Dec. 13, 2018).

[24] Mikenzie Frost, Efforts Underway to Repeal Michigan's No Stricter Than Federal Law, UpNorthLive (Mar. 20, 2019).

[25] Id.

[26] 2018 PA 581; MCL 324.20101 (see Section 20120a(17) requiring EGLE “shall promulgate all generic cleanup criteria and target detection limits as rules”).

[27] The Office of Governor Gretchen Whitmer, Gov. Whitmer Directs MDEQ to File a Request for Rulemaking to Establish PFAS Drinking Water Standards (March 26, 2019).

[28] Id.

[29] Ellison, Michigan Will Draft PFAS Standards for Public Drinking Water, MLive (Mar. 26, 2019).

[30] Id.

[31] Id.

[32] Id.

[33] State of Michigan, supra n 8.

[34] State of Michigan, Science Advisory Workgroup, (accessed July 14, 2019).

[35] Id.

[36] Id.

[37] Mack, Michigan AG Seeks Legal Expertise on Suing 3M, Other PFAS Manufacturers, and Calls For Repealing Law Impeding Opioid Lawsuits, MLive (May 13, 2019).

[38] See, e.g., Brown v. Saint-Gobain Performance Plastics Corp., 2017 WL 6043956 *1 (D. NH 2017).

[39] Wickenden v. Saint-Gobain Performance Plastics Corp, 2018 WL 3069193 *1 (NDNY 2018).

[40] Id.

[41] Const 1963, art 4, § 52.

[42] Wolfe, A ‘History’ of the Michigan Environmental Protection Act of 1970 and A ‘History;’ of the Inland Lakes and Streams Act 346 of 1972 (accessed May 13, 2019).

[43] Ray v. Mason Cty Drain Com’r, 393 Mich 294, 304; 224 NW 2d 883 (1975) (quoting the State constitution).

[44] Id.

[45] Id.

[46] Id.

[47] Id.

[48] MCL 324.1701(1). The statute was originally held unconstitutional in Michigan Educ Ass’n v. Superintendent of Public Instruction, 272 Mich App 1; 724 NW 2d 478 (2006) as conferring too broad of standing. This was later overturned in Lansing Schools Educ Ass’n v. Lansing Bd of Educ, 478 Mich 394; 792 NW 2d 686 (2010).

[49] MCL 324.1701(1) (emphasis added).

[50] See Home Tel Co of Grass Lake v. Michigan RR Commission, 174 Mich 219; 140 NW 496 (1913).

[51] Ray, 393 Mich at 294 (discussing wildlife); City of Portage v. Kalamazoo County Road Com’n, 136 Mich App 276; 355 NW 2d 913 (1984) (discussing trees).

[52] Stevens v. Creek, 121 Mich App 503, 507; 328 NW 2d 672 (1982).

[53] See Nat’l Wildlife Fed’n v. Cleveland Cliffs Iron Co., 471 Mich 608, 684 NW 2d 800 (2004) (ruling such a broad grant of standing violates the separation of powers); Michigan Citizens for Water Conservation v. Nestle Waters N Am Inc, 479 Mich 280, 737 NW 2d 447 (2007). But see Lansing Sch Educ Ass’n v. Lansing Bd of Educ, 487 Mich 349, 792 NW 2d 686 (2010) (overruling Cleveland Cliffs and restoring standing to cases where a litigant has a legal cause of action). But see Anglers of AuSable, Inc v. Dep’t of Envt’l Quality, 488 Mich 69; 793 NW 2d 596 (2010) (highlighting that the Attorney General admitted that “any person” can sue under MEPA).

[54] MCL 324.1703.

[55] See, e.g., Nemeth v. Abonmarche Development, Inc, 457 Mich 16, 32; 576 NW 2d 641 (1998).

[56] See, e.g., Michigan Citizens for Water Conservation v. Nestle Waters N Am Inc, 479 Mich 280; 737 NW 2d 447 (2007); Preserve the Dunes, Inc., 264 Mich App 257; 690 NW 2d 487 (2004); City of Portage v. Kalamazoo County Road Com’n, 136 Mich App 276; 355 NW 2d 913 (1984).

[57] Ray, 393 Mich at 309.

[58] Nemeth, 457 Mich at 32; (1998) (citing West Michigan Environmental Action Council (WMEAC) v. Natural Resources Comm, 405 Mich 741, 760; 275 NW2d 538 (1979)).

[59] Ray, 393 Mich at 309.

[60] Id. at 311.

[61] See MCR 2.516 Direct Verdict; see also Matras v. Amoco Oil Co, 424 Mich 675, 681-82, 385 NW2d 586, 588 (1986) (explaining the standard for evaluating a motion for directed verdict).

[62] Ray, 393 Mich at 311.

[63] Nemeth, 457 Mich at 34.

[64] Id. at 36 (proof of violation of Soil Erosion and Sedimentation Control Act (SESCA) established prima facie case).

[65] Id.

[66] Id.

[67] Nemeth, 457 Mich at 31.

[68] Id. at 18.

[69] Jeffrey K. Haynes, Environmental Law Deskbook: Ch. 14 Michigan Environmental Protection Act: Violations of Statutes, Rules or Permits 14. (accessed Aug. 12, 2019).

[70] Ray, 393 Mich at 310 (quoting MCL 324.1703).

[71] Ray, 393 Mich at 311.

[72] MCL 324.1703.

[73] Ray, 393 Mich at 312-13. See also Dwyer v. City of Ann Arbor, 79 Mich App 113; 261 NW2d 231 (1977) (reversed on other grounds).

[74] Wayne County Dept of Health, Air Pollution Control Division v. Olsonite Corp, 79 Mich App 668, 692; 263 NW 2d 778 (1977) (citing Crandall v. Biergens, Clinton County Circuit Court No 844, 3 ERC 1827, 1831 (1972).

[75] Id.

[76] Ray, 393 Mich at 311 (quoting Douglas Shoe Co v. Pere Marquette R. Co., 241 Mich 297, 301; 217 NW 12, 13 (1928)).

[77] Her Majesty the Queen in Right of the Province of Ontario v. City of Detroit, 874 F2d 332, 338 (CA 6, 1989) (“It is error for the trial court to defer to the expertise of the agencies.”) (emphasis in the original).

[78] Id.; see also WMEAC, 405 Mich at 752 (“[T]he court has a responsibility to ‘adjudicate’ and ‘determine’ whether ‘adequate protection from pollution, impairment or destruction has been afforded.’ Courts can discharge their responsibility to make such determinations only if they make independent, [d]e novo judgments.”) (quoting MEPA at MCL 324.1704-1705).

[79] WMEAC, 405 Mich at 754.

[80] MCL 324.1701(2)(b).

[81] Nemeth, 457 Mich at 30 (emphasis in original).

[82] See WMEAC, 405 Mich at 752.

[83] Id.

[84] Id. at 752-53

[85] Ray, 393 Mich at 306.

[86] Opal Lake Ass’n v. Michaywe’ Ltd Partnership, 47 Mich App 354, 364 n 3; 209 NW 2d 478 (1973).

[87] Haynes, supra n 69, at 14.48.

[88] Genesco, Inc v. Michigan Department of Environmental Quality, 250 Mich App 45; 645 NW 2d 319 (2002) (Part 201 precludes action under MEPA).

[89] Oscoda Chapter of PBB Action Committee, Inc v. Department of Natural Resources, 403 Mich 215; 268 NW 2d 240 (1978) (challenging PBB Act through MEPA).

[90] Haynes, supra n 69 at 14.42.

[91] Id.

[92] Her Majesty, 874 F 2d at 341.

[93] MCL 324.1701(1).

[94] MCL 324.1701(2)(b).

[95] MCL 324.1704(1).

[96] MCL 324.1705(2).

[97] MCL 324.1704(1).

[98] Nemeth, 457 Mich 16.

[99] Id.

[100] MCL 324.1704(1).

[101] MCL 324.1701(1).

[102] Wayne County, 79 Mich App at 668.

[103] Ellison, Toxic Pollution at Wolverine Tannery is Extensive, New Report Shows, MLive (Mar. 25, 2019).

[104] Michigan Dep’t of Environmental Quality v. Wolverine World Wide, Inc, Case 1:18-cv-00039 (filed Jan. 10, 2018, W Dist Mich).

[105] Id.

[106] Id.

[107] Id.

[108] Stevens, 121 Mich App at 508.

[109] Haynes, supra n 69 at 14.79.

[110] MCL324.20142.

[111] Haynes, supra n 69 at 14.43.

[112] MCL 324.20142(1).

[113] Haynes, supra n 69 at 14.43.

[114] MCL 324.20126a(5).

[115] Kimberly Hills Neighborhood Ass’n v. Dion, 114 Mich App 495, 508; 320 NW 2d 668 (1982).

[116] Gryczan, Federal Regulations Required Some Companies to Use PFAS Chemicals For Safety. Now They’re Paying to Clean It Up, MiBiz (Mar. 31, 2019).

[117] Id.

[118] Haynes, supra n 69 at 14.70.

[119] Nemeth, 457 Mich at 43.

[120] MCL 324.1701(2)(b). Surprisingly, the only section under MCL 324.1701 to be challenged as unconstitutional is the broad grant of standing to any citizen in the state. No constitutional challenges have been raised as to this section regarding a court’s authority to override or rewrite regulations.

[121] Wayne County, 79 Mich App at 668.

[122] Nemeth, 457 Mich at 35.

[123] EGLE, State Takes Action to Strengthen Environmental Criteria in Response to PFAS Contamination (Jan. 9, 2018).

[124] EPA, Drinking Water Health Advisories for PFOA and PFOS (accessed Aug. 12, 2019).

[125] Ellison, supra n 29.

[126] Nemeth, 457 Mich at 36.