The Soundest Science Money Can Buy: Drilling, Dioxin and Skullduggery at Michigan’s DEQ
On March 1, 2007, the Michigan DEQ (MDEQ) withdrew its proposed approval of Kennecott Eagle Minerals Co.’s permit application.[1] The decision was made following the exposure of the DEQ’s failure to publicly disclose a crucial report regarding the crown pillar subsidence and hydrologic stability of Kennecott’s Eagle Project.
DEQ Hears Public Comment, Lansing, December 2005 photo courtesy Doug Cornett
The National Wildlife Federation (NWF) had submitted Freedom of Information Act (FOIA) requests to the DEQ, attempting to retrieve a report regarding crown pillar subsidence and the hydrologic stability of the Eagle Project. NWF lawyer, Michelle Halley, stated that the DEQ initially ignored the requests then submitted only partial information before finally releasing the report.
In a phone interview, Steven Wilson, in the DEQ’s Office of Geological Survey, noted that, at the agency, “many reports get lost or shredded.”[2]
The report, commissioned by the DEQ through David Sainsbury of Itasca Consulting Group, Inc., offered a revealing criticism of Kennecott’s method of assessing the crown pillar stability of the proposed Eagle Mine:
“The analysis techniques used to assess the crown pillar stability of Eagle Mine do not reflect industry best-practice. In addition, the hydrologic stability of the crown pillar has not been considered. Therefore, the conclusions made within the Eagle Project Mining Permit Application regarding crown pillar subsidence are not considered to be defensible….The Scaled Span analysis conducted clearly indicates that stability of the proposed Eagle crown pillar should be a concern, although this concern has not been raised within the conclusions of the Eagle Project Geotechnical Study. Considering the sensitive nature of the hydrological environment surrounding the Eagle project, further detailed analysis is required to understand fully the expected short- and long-term crown pillar subsidence and hydrologic stability.”[3]
Sainsbury noted further that, “The procedure used to determine the equivalent UCS from the point-load test results is based upon a procedure no longer current within the mining industry.”[4]
The report also demonstrates that the company has made claims in its permit application that are simply untrue:
“The Eagle Project Mining Permit Application states that both plastic and elastic deformations of the crown-pillar rock mass were evaluated. In fact, no analyses were conducted using plasticity theory to predict shear and tensile failure of the rock mass.”[5]
Eagle Mine project manager, Jon Cherry has said, “The Eagle Mine will contribute substantially to the economic well-being of the Marquette area and its families.”[6] Kennecott president and CEO, David Salisbury, noted, “It is our experience that if we do it right, the people will be better off when we leave in comparison to when we arrived. That’s what our interest is. We want people to be better off.”[7] Also, Kennecott has noted repeatedly, in its public relations, that it is a modern company, using sophisticated technology, that the Eagle Project would be done safely because Kennecott uses updated technology and is a “different Kennecott” than it was formerly.
The Itasca report does sheds a glaring light on Kennecott’s professed benevolence to the local community.
The DEQ’s current conduct should be viewed in the proper context.
In 1995, by executive order, Governor John Engler[8] split the Michigan DNR, forming the DEQ. Seventeen citizen oversight committees were eliminated while, in both departments, field staff were reduced in order to expand the amount of administrative positions. The amount of funding increased for the DNR and DEQ, collectively, from what had previously been allocated.[9]
In 1995, the DNR denied a permit application from Technisand Mining Co. Technisand was attempting to expand an existing mine that would level a protected sand dune, near St. Joseph. The DNR noted that the company did not qualify for an exemption in Section 2b of Section 63702 of the 1976 Sand Dune Protection and Management Act (“SDPA”, which constitutes Part 637 under Michigan’s Natural Resources and Environmental Protection Act, “NREPA”):
“(1) Notwithstanding any other provision of this part, the department shall not issue a sand dune mining permit within a critical dune area as defined in part 353 after July 5, 1989, except under either of the following circumstances: (a) the operator seeks to renew or amend a sand dune mining permit that was issued prior to July 5, 1989….(b) the operator….is seeking to amend the mining permit to include land that is adjacent to property the operator is permitted to mine, and prior to July 5, 1989 the operator owned the land….for which the operator seeks an amended permit.” [10]
On April 1, 1996, the DEQ wrote to Technisand:
“Since April of 1995 there have been many changes in state government and the DNR/DEQ in particular. Some of these changes coupled with additional information that Technisand has apparently supplied to the Michigan Attorney General’s Office are instrumental in the GSD’s ability to proceed with the review of your amendment request.”[11]
The DEQ informed Technisand regarding what the company should address in a potential permit to the DEQ. Technisand submitted a revised proposal, which the DEQ approved on November 26.
In 2000, Preserve the Dunes lost their motion in circuit court because the action was made more than 60 days following the issuance of the permit and that “any adverse impact on natural resources will not rise to the level of impairment or destruction of natural resources within the meaning of MEPA.” However, the state Court of Appeals overturned the ruling, citing Michigan Environmental Protection Act (MEPA) subsections (a) and (b) S. 63702.
The DEQ has not disputed that S. 63702 would deny Technisand the permit. However, the agency has selectively read the law in order to justify its action. The DEQ claims that S. 63702 is overridden by S. 63709:
“The department shall deny a sand dune mining permit if, upon review of the environmental impact statement, it determines that the proposed sand dune mining activity is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in those resources, as provided by part 17 [of NREPA].”[12]
On July 30, 2004, without ruling on whether or not the DEQ-issued permit was legal, the Michigan Supreme Court reversed the Court of Appeals ruling, stating that Technisand’s permit could not be rejected based upon provisions in the MEPA.
The Preserve the Dunes v. DEQ and Technisand Mining Co.[13] case relates closely with another Michigan Supreme Court case involving the DEQ: National Wildlife Federation and Upper Peninsula Wildlife Council v. Cleveland Cliffs Iron Company and DEQ. In both cases, Court opinions were filed on July 30, 2004. Also, both demonstrate a certain form of constitutional federalism that is now gaining prevalence in Michigan courts.
In a contested case hearing with the DEQ as well as in Michigan circuit court and court of appeals, the plaintiffs in NWF & UPEC v. CCI & DEQ were denied standing under the provisions of MEPA. However, a unanimous Michigan Supreme Court decision granted the plaintiffs standing because they passed federal standing requirements that require plaintiffs to demonstrate a “particularized” injury. The four justice majority inferred that standing would not have been granted solely under the provisions of MEPA.
The majority noted that the US Constitution delegates the judiciary authority in “applying, according to the principles of right and justice, the constitution and laws to facts and transactions in cases” yet, maintains that providing standing to a plaintiff under MEPA’s direction would mean requiring the judiciary to violate the Article 3, Section 2 of the Michigan Constitution that ensures the separation of the legislative, executive and judicial branches of government.
In her opinion, Justice Weaver cited MEPA’s “citizen-suit” provision:
MCL 324.1701 (1) “The attorney general or any person may maintain an action in the circuit court having jurisdiction where the alleged violation occurred or is likely to occur for declaratory and equitable relief against any person for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction.”
Professor Joseph Sax, who drafted the original MEPA legislation in the early 1970s, wrote a supporting amicus curiae asserting that the MEPA legislation conformed directly to provisions in the 1963 Michigan Constitution that noted “the conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.” [14]
Justice Weaver notes that MEPA’s conformation with the Michigan Constitution goes further in coinciding with the Constitution’s Article 3, Section 7, as well as Article 1, Section 1: “All political power is inherent in the people. Government is instituted for their equal benefit, security and protection.”
Citing the US Supreme Court decision in Lujan v. Defenders of Wildlife (1992) in its decision in Lee v. Macomb County Board of Commissioners (2001), the Michigan Supreme Court first applied federal standing provisions, relating to Article III of the US Constitution, to Michigan court cases. However, the US Supreme Court case, ASARCO, Inc. v. Kadish (1989) asserted that the Court “recognized often that the constraints of Article III do not apply to state courts, and accordingly the state courts are not bound by the limitations of a case or controversy or other federal rules of justicibility.”
In Ray v. Mason County Drain Commissioner (1975) and Eyde v. State of Michigan (1975), the Michigan Supreme Court had reaffirmed MEPA’s provision to allow “any person” to file legal action regarding a threat to the state’s environment. In no case between these and Lee did the Michigan Supreme Court require a plaintiff prove standing based upon constitutional (US or Michigan) rather than prudential grounds. Indeed, the US Supreme Court applied prudential standing considerations to environment-related federal cases in Bennett v. Spear (1997): “the grant of standing to “any person” under the Endangered Species Act….must be taken at “face value” because “the overall subject matter of this legislation is the environment (a matter in which it is common to think that all persons have an interest) and that the obvious purpose of the provision is to encourage enforcement by so-called “private attorneys general” [individual persons].”
Justice Weaver’s opinion further notes that the US Supreme Court, in Friends of the Earth, Inc. v. Laidlaw Environmental Services (2000), “tempered its application of the Lujan [“particularized injury”] requirement, holding that a plaintiff’s “reasonable concerns” that a defendant’s conduct would affect their recreational, aesthetic, and economic interest was sufficient.”
Weaver, however, asserts that Article 3, Section 8 of the Michigan Constitution “grants power to the legislature and the governor to request an advisory opinion on the constitutionality of legislation” and further that the Constitution places in the legislature the authority to enact laws and the judiciary to decide cases based upon those laws.
Thus, in refusing to follow provisions in MEPA in granting standing to cases of environmental significance, as well as the above noted legislative and judicial duties provided for in the Michigan Constitution, the present Court majority insinuates that the Michigan Legislature, in creating MEPA, violated the Michigan State Constitution.
With this “judicial activism…disguised as judicial restraint” in mind, Justice Weaver asserts that the Court has “constitutionalized Michigan’s judicial standing test. In so doing, the majority usurps the Legislature’s authority to modify or abrogate the judiciary’s prudential standing constraints. It is, thus, the majority’s application of [the US Constitutional] Article III-based test to this and future MEPA cases that will disrupt Michigan’s “constitutional architecture” and the legislatively conferred access to the courts.”
Similarly, in a case filed by the Yellow Dog Watershed Preserve, Keweenaw Bay Indian Community and the Huron Mountain Club, the Michigan Court of Appeals decided that the plaintiffs did not have standing as they were not directly “aggrieved” when the DEQ accepted the Kennecott Eagle Mining Co. permit as “administratively complete.”[15] The plaintiffs chose to not carry the case to the Michigan Supreme Court, waiting to apply again, perhaps, after a DEQ final approval of the permit.
While the DEQ is known as a go-between for mining companies, its connections to big industry are perhaps best exemplified in the state’s dioxin debacle.
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 Tittawbawasee and Saginaw Rivers. The samples contained concentrations of dioxin as high as 2,199 ppt (parts-per-trillion) in toxic equivalence factor units (TEF). From December 2000 to June, 2001, in the interest of public safety, the DEQ collected soil samples from five locations in the Tittawbawasee 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.[16]
The FOIA request revealed that agency director Russ Harding had suppressed information regarding the soil tests and refused to give approval for any further soil testing of the Tittawbawasee 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.[17]
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 Tittawbawasee floodplain that would allow permissible levels of dioxins more than ten times above the state’s health standards. 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 DEQ.[18] 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.[19]
In January, 2002, Granholm filed a lawsuit in the Ingham County Circuit Court in order to fine Radian International LLC up to $4 million for repeated violations of Michigan’s hazardous waste and air pollution laws (under Parts 111 and 55 of NREPA). The violations concerned Radian’s activities at the Dow Chemical wastewater treatment facility, in Midland, from 1997-98. The company had been hired to dry and burn dioxin-containing hazardous wastes, which found its way into the area soil and roadways. The lawsuit did not involve Dow Chemical, itself, as the company was then negotiating a private settlement with the DEQ.[20]
In the October 2004 issue of Chemical Policy Alert Magazine, Harding, who now works for the Dow-funded Mackinaw Center for Public Policy said that the cost of cleanup for Dow “would be a huge expense for them for what they think is not money well-spent.”[21]
Since the DEQ’s founding, in 1995, numerous citizen groups have looked to the agency as a rotten apple on the legislative branch of state government.
In 1998, the group Public Employees for Environmental Responsibility (PEER) conducted a survey of all 1,462 DEQ employees. 609, or 41.6%, responded to the survey. A startling 81% of respondents said that they “did not trust top management of the DEQ to protect Michigan’s resources and public health.” 55% of respondents either “disagreed” or “strongly disagreed” that “the DEQ disseminates complete and accurate agency information to the general public.”[22]
The DEQ has yet to shed its public image as a rogue agency.
1 Michigan DEQ, Press Release, March 1, 2007
2 Wilson, Steve, DEQ, Office of Geological Survey, Telephone Interview, March 28, 2007
4 Ibid
5 Ibid
8 When the state of Michigan enacted legislation prohibiting oil and gas development in the Nordhouse Dunes, a protected wilderness area, the DNR rejected a permit by the Miller Brothers Oil Company. A trial court ruled in favor of Miller Brothers and the court of appeals affirmed that, by regulating the Nordhouse Dunes, the state had effected a “taking” of the company’s “property.” However, “before the end of the trial on the compensation issue, and prior to any appeals, Governor Engler negotiated a settlement of the case.” The State ended up paying the plaintiffs $90. [Echeverria, John, “Changing the Rules by Changing the Players: The Environmental Issue in State Judicial Elections” New York Environmental Law Journal Vol., 9, 2001, pgs. 269-87]
9 Environmental Working Group “Pollution Pays: Michigan, Failure to Enforce Clean Water Laws In Michigan” January 31, 2000
10 Preserve the Dunes Brief in 2nd Circuit Court
12 Cited from Ibid
13 See: http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/SCT/20040730_S122611_141_ptd10oct03_op.pdf
&
http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/SCT/20040730_S122612_140_ptd10oct03_op.pdf
15 Supra, 5
16 MECProtects.org, “Citizens Ask For Federal Probe Into Major Dioxin Cover-up in Michigan” January 31, 2002 Press Release
17 Bhopal.net, “Dow Stooge Says Dioxin Risk to Residents Should Be Based on Science” June 26, 2006
20 Editorial Staff, “Michigan Files Lawsuit for Hazardous Waste Violations," Ohio?, January 28, 2002
21 Bhopal.net, "Dow Stooge Says Dioxin Risk to Residents Should Be Based on Science," June 26, 2006
22 PEER “1998 PEER Survey of Michigan DEQ Employees,” 1998
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