3m Company v. Department of Environment Great Lakes and Energy ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
3M COMPANY, FOR PUBLICATION
August 22, 2023
Plaintiff-Appellee, 9:05 a.m.
v No. 364067
Court of Claims
DEPARTMENT OF ENVIRONMENT GREAT LC No. 21-000078-MZ
LAKES AND ENERGY,
Defendant-Appellant.
Before: GADOLA, P.J., and MURRAY and MALDONADO, JJ.
MURRAY, J.
The sole issue in this appeal is whether the trial court erred in holding that the Department
of Environment, Great Lakes, and Energy (EGLE), violated Section 45 of the Administrative
Procedures Act of 1969 (APA), MCL 24.201 et seq., which requires agencies to prepare a
regulatory impact statement (RIS) that includes an estimate of how much compliance with the
proposed rules will cost “businesses and other groups.” MCL 24.245(3)(n). For the reasons
explained below, we conclude that the trial court did not err, and we therefore affirm its order
granting summary disposition in favor of plaintiff.
I. BACKGROUND
At issue is a new set of rules promulgated by EGLE that regulate the permissible levels of
per- and polyfluoroalkyl substances (PFAS) in drinking water pursuant to Section 5 of the Safe
Drinking Water Act (SDWA), MCL 325.1001 et seq.1 It is undisputed that implementation of
these rules causes changes to groundwater-cleanup standards pursuant to Part 201 of the Natural
Resources and Environmental Protection Act (NREPA), MCL 324.101 et seq.2 This is because
1
See MCL 325.1005(1)(b).
2
See MCL 324.20120a(5).
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groundwater-cleanup standards are tied to drinking water rules; therefore, any changes to the
drinking water rules also cause a change to the groundwater-cleanup rules.
A lengthy administrative process took place prior to the implementation of these rules. In
March 2019, a Science Advisory Workgroup was established to review existing and proposed
drinking-water standards for PFAS. A month later, the Workgroup indicated that more than 70
sites were being investigated for contamination for two specific PFASs: perfluorooctane sulfonate
(PFOS) and perfluorooctanoic acid (PFOA). Soon after, EGLE proposed to create rules to
establish enforceable drinking-water standards for PFAS. In doing so, EGLE indicated that the
United States Department of Environmental Quality had designated health-advisory levels for
PFOS and PFOA, but EGLE determined that the lack of enforceable standards for those chemicals
and other PFAS impaired its ability to act to protect human health and the environment. Thus, a
new ruleset was proposed, designated as 2019-35 EG, or “Supplying Water to the Public,” which
was to add additional drinking water standards and related sampling and response requirements.
In October 2019, EGLE’s Drinking Water and Environmental Health Division submitted
an RIS for proposed ruleset 2019-35 EG. In the RIS, the primary costs to state and local
governmental units were identified as arising from sampling and monitoring requirements and the
installation and operation of treatment systems where PFAS exceeded the maximum contaminant
levels. Regarding costs imposed on businesses and groups, EGLE addressed only businesses that
operated their own water supplies and estimated the following:
Government Businesses
Unit Cost Annual Unit Cost Annual
Sampling cost $300 per sample $3.2 mil $300 to $600 per sample $4 mil
Treatment cost $8 per gal $7.4 mil
Maintenance cost $0.35 per gal $325,000 $7,000
Installation of treatment one time $920,000
The costs were to be the same for businesses and other groups except that sampling would cost
$600 per sample if the business or group hired an outside contractor rather than doing the sampling
itself.
After an October 2019 meeting of the Environmental Rules Review Committee, EGLE’s
Regulatory Affairs Officer, David Fiedler, responded to a question regarding the estimated impact
on small businesses and other stakeholders “when the PFOA and PFOSs criteria are changed under
Part 201” by stating:
If an entity is responsible for either causing a PFAS release or being
responsible for the due diligence associated with a PFOS or PFOA release under
Part 201, then they would be obligated to meet these standards. This impact will
vary depending on the PFOS or PFOA concentration, media effected [sic], and
extent of contamination. Because of this variability, it is not practical to determine
the impact of this change. Even if it was, this impact is a result of current statutory
applicability not a regulatory requirement.
The next month, a second RIS was prepared. The revised RIS recognized that the new surface
water standards would alter the standards for groundwater cleanup: “There are surface water
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standards and groundwater-cleanup standards. The groundwater-cleanup standards for PFOA and
PFOS will be changed as a result of the rule.”
Public hearings were held on 2019-35 EG in January 2020, and the Review Committee
approved a final draft of the rules in February. The Office of Regulatory Reinvention, an office
within the Department of Licensing and Regulatory Affairs, MCL 445.2031(I)(A), approved the
proposed drinking-water rules after determining that they were within the scope of EGLE’s
authority, did not violate constitutional requirements, and conformed to APA requirements. The
Joint Rules Committee did not act on the proposed rules during the 15 session days following their
receipt, making the rules effective on August 3, 2020. See MCL 24.245a(1), (3).
3M Company subsequently filed suit seeking declaratory and injunctive relief regarding
the drinking-water standard’s rules for PFAS. According to 3M Company, EGLE had not fully
accounted for all costs associated with the rules, as it had not estimated costs for businesses to
comply with the related groundwater-cleanup standards that automatically result from the new
drinking water rules. Because every RIS was required to contain an estimate of the compliance
costs for businesses and other groups, EGLE’s RIS was deficient as it had not accounted for costs
resulting from changes to the separate, but related, groundwater-cleanup standards. Accordingly,
3M Company asserted that EGLE had not complied with the APA-based RIS requirements, and
the drinking water rules were invalid.
The parties filed competing motions for summary disposition pursuant to MCR
2.116(C)(10). After a hearing, the Court of Claims issued a thorough opinion and order granting
summary disposition in 3M Company’s favor and declaring the new drinking water rules invalid.
Although the court determined that most of 3M’s arguments did not carry the day, the court held
that the RIS was deficient for lack of a cost estimate for groundwater cleanup, reasoning:
Specifically, nowhere in the Part 201 RIS did the Department address any
cleanup or compliance costs that a business or group would incur as a result of the
PFAS rules. In fact, it was the exact opposite—the Department actually relied on
the criteria set for PFOA and PFOS as a result of the SDWA-rulemaking process
to justify its decision to ignore any cleanup and compliance costs faced by
businesses and groups with respect to the other five PFAS substances under Part
201. Thus, the costs to businesses and groups of complying with the PFOA and
PFOS groundwater criteria were never considered in either rulemaking proceeding,
and the Department asserted in the Part 201 RIS that regulating the other five PFAS
would not lead to additional costs because those costs would already be incurred
due to the PFOA and PFOS rules.
A court must give a certain amount of deference to an administrative
department’s rulemaking process. Brang, Inc v Liquor Control Comm, 320 Mich
App 652, 661; 910 NW2d 309 (2017). But judicial deference is not infinitely
elastic—our Legislature has made clear that, when promulgating a rule,
administrative departments must comply with certain standards, and one of those is
estimating “the actual statewide compliance costs of the proposed rule on
businesses and other groups” and including that information in the regulatory-
impact statement. MCL 24.245(3)(n). A department cannot skirt this statutory
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requirement during Rulemaking A by promising to address the costs later in
Rulemaking B, but then when later comes, ignoring the costs in Rulemaking B
because the criteria were already set in Rulemaking A, and then, on top of this,
characterizing all of the ignored costs as actually zero because they are sunk costs.
To do this would be to play a shell game with the public.
The court, on its own motion, stayed the effect of its holding to grant time for appellate review of
its decision.
II. STANDARDS OF REVIEW
Const 1963, art 6 § 28, provides the scope of review for an administrative agency’s
decision:
All final decisions, findings, rulings and orders of any administrative officer
or agency existing under the constitution or by law, which are judicial or quasi-
judicial and affect private rights or licenses, shall be subject to direct review by the
courts as provided by law. This review shall include, as a minimum, the
determination whether such final decisions, findings, rulings and orders are
authorized by law; and, in cases in which a hearing is required, whether the same
are supported by competent, material and substantial evidence on the whole record.
“[W]hen a hearing is not required, courts review an agency decision only under the ‘authorized by
law’ standard . . . .” Henderson v Civil Serv Comm, 321 Mich App 25, 39; 913 NW2d 665 (2017).3
“An agency decision is not authorized by law if it violates constitutional or statutory provisions,
lies beyond the agency’s jurisdiction, follows from unlawful procedures resulting in material
prejudice, or is arbitrary and capricious.” Dearborn Hts Pharmacy v Dep’t of Health & Human
Servs, 338 Mich App 555, 559; 980 NW2d 736 (2021) (quotation marks and citation omitted).
Courts review de novo questions of law, including whether an agency’s action complied
with a statute. In re Complaint of Rovas Against SBC Mich, 482 Mich 90, 100-101; 754 NW2d
259 (2008). The normal rules of statutory interpretation apply when interpreting statutes
concerning agency decisions. Dearborn Hts Pharmacy, 338 Mich App at 560. If the language is
clear and unambiguous, this Court may not engage in judicial construction. Id. (citation omitted).
And, if the statute does not define a word, this Court applies the common meaning of nontechnical
words, while also considering the placement of the words and phrases in the statutory scheme. Id.
(citation omitted). Words must be read and understood within their grammatical context. Mich
Charitable Gaming Ass’n v Michigan, 310 Mich App 584, 592; 873 NW2d 827 (2015).
3
A contested case is “a proceeding, including rate-making, price-fixing, and licensing, in which a
determination of the legal rights, duties, or privileges of a named party is required by law to be
made by an agency after an opportunity for an evidentiary hearing.” MCL 24.203(3). A
noncontested case is any case that falls outside this definition. Mich Ass’n of Home Builders v Dir
of Dep’t of Labor & Economic Growth, 481 Mich 496, 498; 750 NW2d 593 (2008).
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Respectful consideration is given to an agency’s interpretation of the statute that it is
charged with executing, and we may not overrule that interpretation without cogent reasons.
Rovas, 482 Mich at 103. “ ‘[R]espectful consideration’ is much like what we give to a trial court’s
view of a legal issue on de novo review.” Stirling v Leelanau Co, 336 Mich App 575, 578 n 2;
970 NW2d 910 (2021), rev’d on other grounds Stirling v Leelanau, ___ Mich ___; ___ NW2d ___
(2023) (Docket No. 162961).
III. DISCUSSION
The APA governs the creation of agency rules and regulations. Mich Charitable Gaming,
310 Mich App at 594. “An agency’s failure to follow the process outlined in the APA renders a
rule invalid.” Id. One of the processes that the agency must follow is the creation of an RIS. MCL
24.245(3). “The regulatory impact statement must contain . . . [a]n estimate of the actual statewide
compliance costs of the proposed rule on businesses and other groups.” MCL 24.245(3)(n).
Section 5 of the SDWA requires EGLE to promulgate rules setting “[s]tate drinking water
standards and associated monitoring requirements, the attainment and maintenance of which are
necessary to protect the public health.” MCL 325.1005(1)(b).
Pursuant to this statutory command, EGLE promulgated ruleset 2019-35 EG, establishing
new standards for PFAS in drinking water. As noted, however, under Part 201 of the NREPA,
once new drinking water standards are promulgated under Section 5 of the SDWA, the cleanup
criterion for hazardous substances in groundwater are also changed. MCL 324.20120a(5). In other
words, the impact of Part 201 is that whenever EGLE sets drinking water standards, it is also
setting groundwater cleanup criterion. Despite this, EGLE refrained from providing compliance
cost estimates for the new groundwater cleanup criterion in the RIS it prepared for the new drinking
water standards, arguing that because MCL 24.245(3)(n) only requires it to estimate costs of the
proposed rule, it only needed to provide a cost estimate for businesses and other groups to comply
with the drinking-water rule; it did not need to provide an estimate of the costs that businesses and
other groups might incur as a result of the groundwater-cleanup provisions found in Part 201 of
NREPA.
It is true that MCL 24.245(3)(n) provides that the agency must include in its RIS “[a]n
estimate of the actual statewide compliance costs of the proposed rule on businesses and other
groups.” (Emphasis added.) We don’t quibble with EGLE’s position that within MCL
24.245(3)(n) the word “the” modifies the phrase “proposed rule,” and that the proposed rule is
2019-35 EG, “Supplying Water to the Public.” But the statute has to be read in its entirety, and
what MCL 24.245(3)(n) requires is that EGLE provide an estimate “of the actual statewide
compliance costs of” the proposed rule. And as we have described above, and as the parties agree,
“the proposed rule[s]” resulted in modified groundwater criteria, which triggered the possibility of
additional “statewide compliance costs.” It is that triggering effect from adoption of “the proposed
[drinking water]” rules that brought into play EGLE’s statutory obligation to provide “an estimate
of the actual statewide compliance costs” of any required groundwater cleanup resulting from
adoption of the proposed drinking water rules.
Although EGLE identified the estimated actual statewide compliance costs of the proposed
drinking-water rule on businesses and groups, it did not estimate costs that these changes
automatically imposed on groundwater cleanup. Failing to do so resulted in EGLE’s
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noncompliance with MCL 24.245(3)(n), which in turn means the rules were not promulgated in
compliance with the APA, and are invalid. MCL 24.243; Goins v Greenfield Jeep Eagle, Inc, 449
Mich 1, 9-10; 534 NW2d 467 (1995).4
EGLE’s argument that it was not required to estimate the costs to businesses that would
necessarily occur under Part 201 because it lacked the necessary information to make an estimate
does not save the day as the applicable statutory provisions say otherwise.
MCL 24.245(3) provides that an agency must prepare a RIS which “shall” contain all of
the listed information, meaning that providing the information is mandatory. Walters v Nadell,
481 Mich 377, 383; 751 NW2d 431 (2008). And as noted earlier, one piece of information that
the APA requires to be included in a RIS is “[a]n estimate of the actual statewide compliance costs
of the proposed rule on businesses and other groups.” MCL 24.245(3)(n).
According to EGLE, it was permitted to determine that it was factually incapable of making
an estimate and that the Court of Claims should have deferred to its administrative expertise when
making that determination. However, MCL 24.245(3)(n) does not contain any such exception,
and to adopt EGLE’s position would require this Court to read an exception into MCL 24.245(3)(n)
that would allow EGLE, as well as any other departments of state government, to avoid estimating
costs to businesses in a RIS if the department concludes an estimate is not possible. But MCL
24.245(3)(n) requires an estimation, and if EGLE cannot provide one, then it cannot propose the
rule in a way that complies with the APA.
Affirmed. No costs, a matter of public concern being at issue. MCR 7.219(A).
/s/ Christopher M. Murray
/s/ Michael F. Gadola
4
EGLE challenges the trial court’s review of the RIS subsequently adopted for groundwater
cleanup, which likewise contained no numerical cost estimate. According to EGLE, the trial court
had no authority to consider that RIS because it was not part of the administrative record. As
Judge SMOLENSKI previously wrote for this Court, a court is expressly permitted to take judicial
notice on its own of those laws set out in MRE 202(a), which includes a state administrative
regulation. Rudolph Steiner Sch of Ann Arbor v Ann Arbor Charter Twp, 237 Mich App 721, 723
n1; 605 NW2d 18 (1999). However, a RIS is not an administrative regulation, nor does that
document fall within one of the other laws that a court can judicially notice. But this error was
harmless, as the statutory language supports the trial court’s ultimate holding.
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