Gov. Snyder signs Michigan lame-duck bills opposed by environmentalists

New legislation may impact state response to PFAS contamination. 

Jim Malewitz, Bridge Magazine 

LANSING — Gov-elect Gretchen Whitmer could face new obstacles in trying to deliver on bold campaign promises to clean up Michigan’s waters.

That’s after Gov. Rick Snyder signed a bill into law Friday making it tougher for state agencies to craft regulations stricter than those of the federal government.

Snyder, a Republican, also signed legislation that 82 Department of Environmental Quality staffers urged him not to: a measure they say weakens standards for cleaning up the state’s thousands of toxic sites. He also signed legislation to allow development on smaller wetlands.

They were just three of more than 200 bills Snyder signed or vetoed late Friday, clearing his desk before Whitmer, a Democrat, takes the oath of office on Jan. 1. Among them were signed measures that were most loudly opposed by environmentalists, who arguing in recent weeks that Snyder could repair a legacy stained by the Flint water crisis by vetoing them.

At the same time, however, Snyder, whose administration was found primarily to blame for the Flint disaster, signed legislation that will send $69 million a year toward toxic cleanups — to replenish a tapped-out fund. That was on top of about $20 million to address the chemical contaminants PFAS.

No-stricter-than federal

House Bill 4205 bans state agencies from creating new regulations stricter than Washington’s unless an agency shows a “clear and convincing” need due to “exceptional circumstances.”

The bill applies to all agencies, but exempts rulemaking related to special education. (The legislation also exempts temporary rules adopted during emergencies.) The Farm Bureau, Michigan Manufacturers Association and  other supporters say will help Michigan attract and maintain businesses that want uniform standards — by requiring agencies to justify their regulations.

Snyder agreed.

“The governor noted his administration has worked tirelessly to eliminate more than 3,000 unnecessary rules. It is appropriate for state agencies to take extra care in justifying regulatory decisions when adding rules,” his office said in a statement.  “These rules and regulations are still allowed to be more stringent than federal law when accompanied by the appropriate explanation and support.”

But critics call the “clear and convincing” standard a high bar to meet in court, and contended the rule would make agencies more vulnerable to litigation. And some see it as power grab in the lame-duck session that will limit Whitmer’s powers and her ability to craft unique solutions to Michigan’s problems — including the industrial contamination being found in drinking water.

On Thursday, before the bill became law, Whitmer told reporters she was “very concerned” about the bill and told Snyder as much.

She echoed her concerns in a statement Friday, saying the bill “takes away the ability of the executive branch to consider assets and challenges unique to Michigan when determining rules meant to protect our citizens.”

An open question is how the bill will affect rulemaking on PFAS contamination, which is increasingly showing up in Michigan waters. A scientific panel assembled by Snyder released a report this month suggesting Michigan’s cleanup criteria for certain PFAS chemicals — 70 parts per trillion (ppt) — may need tightening to protect public health.

Democrats and environmentalists see obstacles in tightening PFAS standards under the law, because the U.S. Environmental Protection Agency has no standards on the once-common chemicals used in a host of materials from non-stick cookware to firefighting foam.

But the bill sponsor — Rep. Triston Cole, R-Mancelona — has said his measure will not impede state action on PFAS — or on other contaminants where there is no federal criteria, even though the bill Snyder signed on Friday does not explicitly say so.

Snyder’s office said it believed the bill will not affect rulemaking on PFAS.

Toxic cleanup overhaul

Meanwhile, Snyder signed into law Senate Bill 1244, an overhaul of state standards for cleaning up toxic sites, over the loud objections of dozens of state DEQ employees.

At issue is how Michigan regulators update toxicity values for hundreds of chemicals at some 7,000 polluted sites statewide, nearly half of which are likely “orphans,”meaning the original polluter is gone and taxpayers must pay for cleanups.

The values are necessary to determine when a site is safe, and research on health hazards of toxins is continually evolving

Sen. Jim Stamas, R-Midland, sponsored the legislation and contends the state’s current process lacks clarity and discourages developers. The new process, he and supporters say, will return sites to tax rolls sooner and still protect public health.

The legislation requires the DEQ to use chemical toxicity values from a U.S. Environmental Protection database – unless the agency undergoes a lengthy process that includes public notices and meetings with “stakeholders.”

Industry groups including the Michigan Chamber of Commerce and the Michigan Chemistry Council back the measure, saying it gives companies more clarity on cleanups.

But in a rare public plea for a veto earlier this month, 82 DEQ staffers wrote the bill would “threaten the health and safety of the people of Michigan” and solely benefit the polluters who are pushing the measure.

“Michigan’s citizens … will have a false sense of security at best and at worst, their health and environment will be impaired and the cost of the cleanups in the future will become their burden as well as the burden of their children and great grandchildren,” the DEQ staffers wrote in a letter.

Wetland protections

Senate Bill 1211, signed by Snyder Friday, will remove development protections on some smaller wetlands.

As originally written, the bill would have allowed development on as many as 550,000 acres of wetlands and 4,200 of Michigan’s 11,000 lakes. But the bill underwent significant changesbefore it was signed by Snyder early Friday, and now fewer wetlands would lose protections (although an exact number isn’t now known.)

Sponsors say the bill would protect property owners from overzealous regulations. Opponents originally called the bill an assault on the environment, though changes prompted some conservation groups to turn neutral on the bill.

Money for cleanups

Whitmer’s incoming administration, however, should avert a funding crisis for toxic cleanups. That’s after Snyder signed into law part of a budget deal that will create a $69 million “Renew Michigan’ program to tackle that challenge and bolster recycling programs.

It comes as the state’s chief funding source for toxic cleanups — a $675 million bond voters approved 20 years ago — has run dry.

Under the new law, $45 million each year will flow to toxic cleanups, and $24 million will go to recycling and landfill oversight, which Snyder hopes will boost Michigan’s worst-in-region recycling rate.

Separately, Snyder signed into law a $1.3 billion supplemental budget that included roughly $20 million to address PFAS. That includes funding for drinking water infrastructure, mapping contaminated sites and conducting public health investigations.

“As we continue to build a stronger foundation for Michigan’s future, it’s critical that we invest in improvements to our environment and infrastructure,” Snyder said in a statement.

Jim Malewitz

Jim Malewitz reports on the environment for Bridge. Based in Lansing, but with plans to scour both peninsulas, he is looking for stories about how public policy, climate change and other phenomena affect the state’s trove of natural resources – all while leaders tout the “Pure Michigan” brand.