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January 5, 2022 | Arthur Siegal

How Michigan’s PFAS Policies Could Change Federal Environmental Law in 2022

Policies developed by Michigan’s Department of Environment, Great Lakes, and Energy (EGLE) could end up impacting federal legislation in 2022, as officials call for research to understand potential health risks posed by per- and polyfluoroalkyl substances (PFAS) and their effect on human health.

PFAS, also known as “forever chemicals” for their persistence in the environment and in human beings, have long been used in American manufacturing to make food and drink packaging, furniture and cookware resistant to water, grease, or stains. PFAS chemicals have been linked to health issues including certain cancers and damage to liver and immunity functions, as well as more profound developmental effects on fetuses and exposed children.

Federally, The EPA has set a nonbinding standard of 70 parts per trillion for two of the most common PFAS compounds. Michigan has developed—and continues to develop—separate, stricter standards for each compound, some of which are ten times more restrictive than the federal standard.

This has prompted federal legislators to take a closer look and include funding and regulatory language in legislation like the Build Back Better (BBB) bill and a bill cosponsored by Congresswoman Debbie Dingell, the PFAS Action Act of 2021.

While the status of the federal legislation is still up in the air, the lack of uniform national PFAS standards means greater uncertainty and, in some cases, higher costs—for wastewater treatment plants, drinking water suppliers, landfills, and other parties unlucky enough to find PFAS in their soil or groundwater.

Michigan has some of the strictest rules in the nation limiting chemical contaminants in drinking water supplies, with rules that took effect in 2020 imposing limits on seven PFAS chemicals in drinking water and setting those standards as cleanup requirements.

The EPA has recently laid out an aggressive timeline to regulate PFAS compounds – which in many cases include steps that Michigan EGLE has already taken here. If EPA is able to keep to its schedule, in 2022 and 2023, we expect to see rules setting drinking water and cleanup standards for some of the most common PFAS chemicals. PFAS chemicals may be designated toxic, hazardous substances or even hazardous wastes.  Once federal rules are adopted, the states will be encouraged to adopt the new federal standards—and those standards may be higher or lower than those of the individual states.  Whether states give up on more stringent standards remains to be seen.

It is recommended that every liable party and party with a due care obligation consult with an experienced environmental attorney to comply with the State and new federal requirements to minimize liability. Contact our team today to learn more: https://www.jaffelaw.com/practices/environmental-law/