Judge Rejects Challenge To Michigan's 'Toughest' Lead-In-Water Rules
A Court of Claims judge rejected a challenge to Michigan's lead and copper rules for safe drinking water.
In a 17-page opinion, Court of Claims Judge Christopher M. MURRAY granted the Department of Environment, Great Lakes and Energy's (EGLE) request to dismiss a lawsuit filed in 2018 by Detroit, Livonia and two utilities, Oakland County Water Resources Commissioner and Great Lakes Water Authority.
The revised rules lower the lead-action level from 15 parts per billion (ppb), which is used by the U.S. Environmental Protection Agency (EPA), to 12 ppb. Local governments estimate it will cost them $2.5 billion to comply with the rule change.
"Plaintiffs have not presented a convincing argument as to why the rules were not rationally related to the" Michigan Safe Drinking Water Act (MSDWA)'s "purpose . . . of 'assuring the long-term health of (the state's) public water supplies and other vital natural resources,'" Murray wrote in his opinion today. "As a result, the rules are not invalid in their substance."
Murray went on to say the plaintiffs' arguments "sound more in the nature of matters that could have -- and in fact appear to have been -- addressed during the public comment period."
The cities and utilities asked the court in December 2018 to declare the state's June 2018 changes to the lead and copper rules unconstitutional (See "Oakland, Livonia, GLWA Say Lead, Copper Rule Change Unconstitutional," 12/11/18).
The plaintiffs argue the rules -- which they described as the "toughest" in the nation -- compromises their ability to remove lead lines in a manner that would protect the public and requires a water supply to replace every lead service line in a water system, including any portion of a privately-owned service line.
However, Murray noted, the MSDWA authorizes EGLE to promulgate rules necessary to carry out the act's objectives, and it applies to a "waterworks system," which includes pipes and structure that water is obtained and distributed. That, he noted, doesn't distinguish between public and private service lines.
The cities and utilities also allege the rules violate the Revenue Bond Act by regulating the rates charged to their customers. They argued, in part, that water supply systems are prohibited from giving away free services.
But Murray dismissed that argument, noting that water utilities acknowledged they'd pass costs of service-line replacement to all water customers.
"When the costs of the replacement service lines are charged to customers, nothing is given away for free, thereby defeating plaintiffs' claims," the judge noted.
The new rules were in response to the Flint lead-contaminated water crisis (See "Locals Question Lead Line Replacement Requirement In New LCR," 5/15/18 and "Snyder Moves To Beef Up Michigan's Lead And Copper Rules," 3/16/17).
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