Michigan DEQ, Governor’s Office Under EPA Scrutiny for Assisting Dow in Softening Environmental Standards, Delaying Dioxin Clean-up

In November, 2007, Dow Chemical reported to the Environmental Protection Agency (EPA) a dioxin concentration of 1.6 million parts per trillion (ppt) in river-bottom sediment adjacent Wickes Park, in Saginaw, MI. This represents the most concentrated amount of dioxins in the Saginaw River since testing began in 1978 and is the single highest level of dioxin ever reported to the EPA. The highest level previously found in the Saginaw River measured much less, at 32,000ppt.

Dioxin is a dangerous toxin affecting the nervous and reproductive systems, causes numerous cancers and also affects childhood and fetal development. Dioxin, found commonly in contaminated soils, river-bottom sediments and fish, is so dangerous that it is recorded in parts per trillion, as opposed to parts per million or billion. The State of Michigan formerly required cleanup at 90 ppt and the EPA at 1,000ppt.

Dioxin contaminates soil sediment during annual flooding of the Tittabawassee River. In recent years, the EPA has bought-out homeowners in heavily contaminated areas. Now, more residents are requesting the agency to relocate them.

The EPA ordered Dow to clean-up 3 separate “hot spots” in the Tittabawassee this past June. The recent discovery comes at a time when the DEQ, Dow and the EPA are meeting privately to discuss extending control over clean-up management to the EPA.

Dow began dumping dioxins from its Midland plant into the Tittabawassee before World War I and continued dumping until around 1970. Discussion regarding remediating 50 miles of contaminated riverways that feed into Saginaw Bay has dragged on for almost 30 years. According to a recently-released EPA memo, these delays and public misunderstandings regarding the dangers of dioxins have occurred with State complicity.

An August, 2007, confidential memo that the Lone Tree Council recently obtained from the EPA, apparently by accident, using the Freedom of Information Act (FOIA), contains a scathing criticism regarding the improper handling of the remediation process by both the Governor’s office and the Department of Environmental Quality (DEQ). The memo noted that Dow Chemical has gained unprecedented access to the Governor and DEQ Director, Steven Chester:

“Dow has often elevated regulatory matters (normally resolved at a staff level) to upper level management at MDEQ…Dow used this approach in negotiating the 1/20/05 Framework Agreement (FA) between Dow and the State of Michigan which contains conditions that have limited the ability of MDEQ to require timely and comprehensive corrective action in the Saginaw Bay watershed. The FA was negotiated between the Governor’s office, senior management at MDEQ, and Dow…Dow has used the alternative dispute resolution (ADR) process, initiated in this matter in 2005, to keep non-confidential information from the public.”

The EPA memo criticizes the DEQ and various Michigan legislators for helping Dow to soften environmental standards and delay major clean-up activities, thus reducing potential liability damages for the company:

“Dow’s hazardous waste operating license (RCRA License) was re-issued to Dow by MDEQ on June 12, 2003. Prior to the re-issuance, Dow spent approximately a decade negotiating the terms and conditions of its expired RCRA License (expired 1993) with MDEQ, including off-site corrective action requirements. Off site corrective action issues came to a head in approximately 2002 when it was proposed that the corrective action requirements of Dow’s RCRA License be removed from the license and placed in a separate consent order with terms and conditions more favorable to Dow. EPA vigorously objected to this proposal via public comments on the draft consent order. The proposal was determined by Michigan’s Attorney General to be illegal. Dow, nevertheless, continued its efforts to prevent any specific off-site corrective action requirements from being included in Dow’s RCRA License. EPA finally had to require MDEQ, pursuant to 40 CFR 271.19, to include these off-site corrective action provisions in Dow’s permit.”

The memo also criticizes Dow for supplying the DEQ with false laboratory results. In November, 2006, Priscilla Denney, an environmental engineer with Dow notified her superiors that Dow’s contracted sediment sampling work was found by a laboratory conducting validation tests to be so compromised that the lab rejected the results, on December 5, and ended its contract with the company several days later. In response, Denney was demoted. Despite the lab’s rejection, Dow submitted the DEQ its results in February. Astoundingly, as of December 5, 2007, DEQ director Chester insists that, "Right now, we have no reason to believe the data is wrong…We want to double check and to see [sic] that the data we’ve based decisions on was right."

The DEQ has a history of covering-up the full extent of Dow’s dioxin contamination and assisting the company in lessening the extent of potential liabilities by requiring less comprehensive remedial operations.

In 2001, tipped off by a DEQ insider, the Lone Tree Council and Michigan Environmental Council filed a FOIA regarding DEQ testing of dioxin levels south of Saginaw.

In April, 2000, while conducting a wetland mitigation project, General Motors Corporation (GM) found elevated levels of dioxin (as well as dibenszofuran compounds) in a farm field near the confluence of the Tittawbawassee and Saginaw Rivers. The samples contained concentrations of dioxin as high as 2,199 ppt. From December 2000 to June, 2001, in the interest of public safety, the DEQ collected soil samples from five locations in the Tittawbawassee River flood plain, south of Saginaw. The thirty-four samples collected showed dioxin concentrations ranging from 39 to 7,261 ppt with only five samples containing TEF concentrations less than the NREPA (Part 201) recommended residential criteria of 90 ppt or less.

The FOIA request revealed that agency director Russ Harding, who now works for the Dow-funded Mackinaw Center for Public Policy, had suppressed information regarding the soil tests and refused to give approval for any further soil testing of the Tittawbawassee floodplain. Harding also suppressed an internal state health assessment that recommended immediate government action. Harding went so far as to blacken out sections and redact certain public documents that referred to Dow Chemical’s involvement in the dioxin contamination.

The director attempted to alter Part 201 of NREPA to increase the amount of allowable dioxin in residential and industrial areas, in order to better accommodate Dow Chemical’s operations, creating a “dioxin zone” in the Midland and the Tittawbawassee floodplain that would allow permissible levels of dioxins more than ten times above the state’s health standards. A State law, signed in December, 2006, allows the DEQ to recalculate dioxin cleanup criteria based upon the EPA standards of 1,000ppt, as opposed to State requirements of 90ppt. This has the effect of eliminating Dow’s culpability in contaminating thousands of homes that were otherwise covered under State law.

Also included in DEQ-Dow discussions was a relaxation over Dow’s accountability in possible future litigation regarding the dioxin’s effect on public health as well as the DEQ allowing DOW to review the agency. Michigan Attorney General, Jennifer Granholm, informed the DEQ that, because the deal did not follow proper administrative procedure and was performed without public knowledge the action would be considered illegal. The EPA memo notes that the former Attorney General, as Governor, continues to allow Dow control over certain DEQ decision-making processes:

“Dow frequently…requests that issues be resolved using day-long working sessions. The working session approach has had the effect of limiting the administrative record, and places significant resource requirements on the MDEQ. EPA knows of no other facility in the State of Michigan where this type of approach to corrective action has been allowed by MDEQ… Dow often requests MDEQ to make decisions on the spot at meetings.”

In softening remediation requirements and delaying clean-up, Governor Granholm and current DEQ director, Steven Chester continue Harding’s tradition of lifting responsibility from major polluters over extensive water pollution and impacts to public health.

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