In November 2019, the Michigan Natural Resources Commission voted 3-2 to amend Fisheries Order 200.20 to reinstate a 10 brook trout daily bag limit regulation on 33 sections of streams in the Upper Peninsula. The NRC issued the Order despite comment provided by Michigan Trout Unlimited opposing it and despite DNR Director Dan Eichinger publicly stating the DNR’s opposition to the reinstatement of the 10 brook trout bag limits based on known scientific evidence.

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You have probably heard many concerns being raised about something called PFAS. PFAS stands for per- and polyfluoroalkyl substances, which are a group of widely used compounds that have been used in everything from non-stick pots and pans to firefighting foam.  They have also been used for furniture, carpeting and clothing to give those products a spill-resistant, water repellant quality.  Their large molecular compounds and their structure not only provides the non-stick, foaming and water repellant properties that are useful to humans, it also makes them very stable and resistant to breakdown, either by nature or human processes.  This is why they are called “forever chemicals” and makes them potentially dangerous because they have a tendency to bioaccumulate, or build up in the food chain.

What you probably have not heard of is PFAS’ relationship to Major League Baseball.  The Detroit Free Press recently reported that a number of professional baseball players were potentially exposed to PFAS-impacted drinking water when they played with the West Michigan White Caps in Grand Rapids.

According to the Detroit Free Press, a number of baseball players, including Detroit Tiger Nicholas Castellanos, were potentially exposed to PFAS while staying with a host family in Grand Rapids whose drinking water well has been contaminated by a former shoe factory owned by Wolverine Worldwide.

Should these players be concerned?  It’s really an open issue.  PFAS compounds have received close scrutiny lately because of their bioaccumulative properties and certain studies that have linked high concentrations of the compounds to problems observed in laboratory test animals.  However, there is no consensus as of yet as to whether there is a safe limit.  Also, the baseball players stayed with the family short periods of time.

The U.S. EPA has set a drinking water standard of 70 parts per trillion (ppt). One ppt is the equivalent of one drop of substance in 20,000 swimming pools.

However, there is some question as to whether or not the U.S. EPA’s level is adequately protective of human health.  For example, Michigan’s PFAS Science Advisory Panel assessed PFAS and its related compounds in its December 7, 2018 report.  In that report, the Panel concluded that “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.”

Some states have taken a more restrictive approach.  New Jersey has a drinking water standard of 13 ppt for PFNA and a proposed regulation of 14 ppt for PFOA.  California, on the other hand, has a combined PFOA and PFOS limit of 70 ppt with notification levels for PFOA at 14 ppt and PFOS at 13 ppt.

Michigan has cleanup standards for PFOA and PFOS but no established drinking water standard.  The residential and non-residential drinking water clean-up standard for groundwater is 0.07 parts per billion (ppb), or 70 ppt.  The groundwater/surface water interface criteria (GSI) is 0.12 ppb, or 12 ppt for PFOS.  Up until recently, Michigan has relied on the EPA standard of 70 ppt for PFOA and PFOS combined; however, Michigan has recently started a rule-making process for PFAS compounds in drinking water, and it is expected that the final rule will be much lower than this.

Most likely, Michigan will adopt a drinking water standard similar to the health screening levels established by the Michigan Department of Health and Human Services.  Those levels are 9 ppt for PFOA, 8 ppt for PFOS, 9 ppt for PFNA, 84 ppt for PFHxS and 1,000 ppt for PFBS. In addition, Michigan has recently cautioned Michigan residents from touching foamy water near sites that have been contaminated with PFAS compounds.

Michigan has a new rulemaking process and the PFAS rulemaking will be one of the first to go through this process.  Even if rules are established, they could be challenged because Michigan has a new law (MCL 24.232(9)) that prohibits rules that are more stringent than a federally established level unless it can be established that there is a clear and convincing need to exceed the federal level.  Since the Federal Government has not formally adopted a standard for PFAS, this may not be an issue, however, given the stakes involved, there is a possibility that some interested party could challenge it.  Whatever level (or levels) the State arrives at, you should expect even more scrutiny of PFAS issues around the State.

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Pictured from left to right: Phil Grashoff, Kyle Jones, Brian Considine, Nick Maloof, Sue Sadler and Mark Hester (fellow committee members). Photo courtesy of the Oakland County Bar Association, taken by Kristen Dimich.

Congratulations to Dawda attorney Brian Considine. Brian is the Chairman of the Oakland County Bar Association’s Energy, Sustainability and Environmental Law Committee, which received the OCBA’s Committee of the Year Award at the OCBA’s Annual Meeting. This committee’s vice chairman is Kyle Jones , Office of General Counsel at Chrysler Group LLC.

The committee’s award is particularly noteworthy because this is the first time that a first year committee has received  this award from the OCBA.

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Despite their diminutive size, drones are receiving a huge amount of press right now. Why? Because businesses from Amazon to your local utility see a variety of commercial uses for them. Amazon, for example, is interested in a drone’s near instantaneous delivery capabilities. Energy companies are interested in using them to inspect their miles of pipelines and transmission lines. In addition, law enforcement is one of the larger potential applications. The FBI and local police would like to use them to pursue criminals, gather evidence or obtain a better vantage point during active police actions.

There’s only one small (or big depending on the way you look at it) problem; flying these small drones for commercial purposes is not allowed by the Federal Aviation Administration (FAA) unless they are flown in an enclosed building or you have gone through the laborious process of applying for (and obtaining) one of the very limited exemptions from the FAA.

Manufacturers of drones (or unmanned aircraft systems [UAS] as the FAA likes to call them) who want to fly them outside as part of their testing or marketing efforts can request an exemption (called a “special airworthiness certificate”) but the hurdles (which are outlined in FAA order 8130.34C) are daunting. To secure such a certificate, the manufacturer must do all of the following:

• Receive a registration number (an “N” number) from the FAA;
• Submit an Affidavit of Ownership and Aircraft Registration Form 8030-1; and
• Submit the following technical documents to the FAA at the same time:
  -A map identifying a proposed flight test area (in latitude and longitude on an aeronautical chart.)
  -A Program Letter; and
  -A Safety Checklist

Although examples of the Program Letter and Safety Checklist are attached to Order 8130.34C, a technical background and experience in drafting such technical documents is helpful. The FAA takes about 30 days to review these documents.

While the FAA is performing its review, a Flight Test Plan must be developed.  Such a plan is not elaborate and there are a number of FAA Advisories they can be consulted for guidance. In addition, a safety and maintenance program manual must be prepared to ensure the continued airworthiness of the aircraft and the data link.

After the FAA reviews the documents above, the FAA schedules a safety evaluation which must be presented before a panel in Washington D.C. and an on-site inspection. The safety evaluation must provide the FAA with a complete understanding of how the drone is designed, the software it uses, propulsion, etc. Within 30 to 60 days of the safety evaluation, the FAA schedules an on-site inspection where the capabilities of the drone will be demonstrated in a test flight.

Here’s the catch though: currently the person responsible for flying the drone must have a commercial airline pilot’s license. Yes, that’s correct: commercial airline pilots (the ones who fly paying customers in jumbo jets) are the only ones who can test fly a drone that looks like a child’s toy. As if the process wasn’t already complex, imagine a small start-up company trying to overcome a hurdle like that.

However, a possible solution is on the distant horizon. On February 15, 2015, the FAA released proposed rules that would allow routine commercial use of UAS under 55 pounds, and the FAA hinted at possibly issuing even more relaxed rules for UAS lighter than 4.4 pounds.

While the proposed rules do not require the drone pilot to have a commercial pilot’s license, the pilot would have to meet certain basic requirements: be at least 17 years old, pass an aeronautical test and obtain a UAS operator certificate. Most notably, the proposed rules would not allow the drones to be flown out of the operator’s line of sight (or autonomously). In addition, drones could not be flown over people, would have a maximum ceiling of 500 feet and could not fly faster than 100 miles per hour. Further, the proposed rules prohibit the dropping of packages, which all but eliminates their use for Amazon or pizza delivery.

The FAA is seeking comments on the rules for the next 60 days. After the comment period closes, the FAA will make changes to the rules and there will undoubtedly be another round of public comment. In other words, the regulated community should not expect to see anything final soon. In the meantime, commercial drone use will continue to be restricted and manufacturers desiring to test fly their devices legally will have to follow the steps outlined above.

Dawda attorneys will continue to monitor the FAA’s development of its small drone rules and, in the meantime, are available to assist any companies interested in obtaining an exemption from the FAA.

By: Brian Considine, Esq.

Photo credit: © Nevit Dilmen [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0) or GFDL (http://www.gnu.org/copyleft/fdl.html)], via Wikimedia Commons

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