STATE OF MICHIGAN

INGHAM COUNTY CIRCUIT COURT

Ecology Center; Lone Tree Council; Tittabawassee River Watch; PIRGIM; Clean Water Action; Citizens for Alternatives to Chemical Contamination; Roz Berlin; Robert Cowling; Betty and Vito Damore; Diane Hebert; Ward Hodge; Michelle Hurd Riddick; John Taylor; William A. Thibodeau; Mary Whitney; and John Witucki,

Plaintiffs,

v

Michigan Department of Environmental Quality; Russell J. Harding, Director of the Michigan Department of Environmental Quality; and Arthur R. Nash, Jr., Deputy Director, Programs and Regulations Division, Michigan Department of Environmental Quality,

Defendants.

 

 

 

 

 

 

 

Case No. 02-_______________-CE

 

Hon. ________________________

Christopher M. Bzdok (P53094)

Scott W. Howard (P52028)

Olson & Bzdok, p.c.

Attorneys for Plaintiffs

420 East Front Street

Traverse City, MI 49686

Telephone: (231) 946-0044

   

VERIFIED COMPLAINT, APPLICATION FOR LEAVE TO APPEAL,

AND REQUEST FOR TEMPORARY INJUNCTIVE RELIEF

STATEMENT PURSUANT TO MCR 2.113(C)(2)(a): There is no other pending or resolved civil action arising out of the transaction or occurrence alleged in the Complaint.

Plaintiffs, Ecology Center, Lone Tree Council, Tittabawassee River Watch, PIRGIM, Citizens for Alternatives to Chemical Contamination, Clean Water Action, Roz Berlin, Robert Cowling, Betty and Vito Damore, Diane Hebert, Ward Hodge, Michelle Hurd Riddick, John Taylor, William A. Thibodeau, Mary Whitney; and John Witucki (Plaintiffs), through their attorneys, Olson & Bzdok, p.c., submit the following in support of their Verified Complaint, Application for Leave to Appeal, and Request for Temporary Injunctive Relief:

Parties

1. Plaintiff Ecology Center is a Michigan non-profit charitable corporation based in Ann Arbor, with approximately 2,500 members across the state, including members residing, owning property, or recreating in the City of Midland, Midland County, and the area of the Tittabawassee River floodplain. The Ecology Center works for a just and healthy environment through organizing, advocacy, research, education, and demonstration projects.

2. Plaintiff Lone Tree Council is a Michigan non-profit charitable corporation based in Bay City with 70 members across the state, including members residing, owning property, and recreating in the city of Midland, Midland County, and the Tittabawassee River floodplain. The Lone Tree Council had existed for 24 years and is devoted to clean water, clean air, the preservation of Michigan's natural resources, and environmental justice.

3. Plaintiff Tittabawassee River Watch was organized in May 2002 for the express purpose of dealing with dioxin contamination on the Tittabawassee River and floodplain. The group's primary focus is human health and property values. Members live on the Tittabawassee River or in the floodplain.

4. Plaintiff PIRGIM is a Michigan non-profit charitable corporation based in Ann Arbor with 10,000 members across the state, including members residing, owning property, and recreating in the city of Midland, Midland County, and the Tittabawassee River floodplain. PIRGIM is devoted to Michigan's public interest through research, advocacy and public education.

5. Plaintiff Clean Water Action is a Michigan non-profit charitable corporation based in Washington, DC, with 100,000 members across the state of Michigan, including members residing, owning property, and recreating in the city of Midland, Midland County, and the Tittabawassee River floodplain. Clean Water Action is a national citizen's organization with three Michigan offices working for clean, safe and affordable water, prevention of health threatening pollution, creation of environmentally safe jobs and businesses, and empowerment of people to make democracy work.

6. Plaintiff Citizens for Alternatives to Chemical Contamination is a regional grassroots environmental organization centered in the Great Lakes and headed up in Bay City whose purpose is to foster awareness of environmental issues that need to be addressed through a network of citizens and organizations. CACC has been working to protect the environment since 1978.

7. Plaintiff Roz Berlin lives in the floodplain and is concerned about dioxin contamination in the area.

8. Plaintiff Robert Cowling lives in the floodplain and is concerned about dioxin contamination in the area.

9. Plaintiffs Betty and Vito Damore are residents of the floodplain and are concerned about dioxin contamination there.

10. Plaintiff Diane Hebert is a 25-year resident of Midland who has been active in dioxin issues in the Midland area for decades. She is also Director of a local environmental group, Environmental Health Watch.

11. Plaintiff Ward Hodge is a Midland resident who is concerned about dioxin contamination in the area.

12. Plaintiff Michelle Hurd Riddick is a Lone Tree Council Member who has been heading up citizen efforts in Saginaw County on dioxin contamination of the Tittabawassee River floodplain.

13. Plaintiff John Taylor is a resident of the area down stream from Midland.

14. Plaintiff William A. Thibodeau lives in the floodplain and is concerned about dioxin contamination in the area.

15. Plaintiff Mary Whitney lives on the Tittabawassee River and are concerned about dioxin contamination in the area.

16. Plaintiff John Witucki lives half a mile down the Tittabawassee River and fishes the river. He is concerned about dioxin contamination in the area.

17. Defendant Michigan Department of Environmental Quality (AMDEQ@) administers the Michigan hazardous waste program through an authorization by the United States Environmental Protection Agency (AEPA@), under Section 3006(b) of the Resource Conservation and Recovery Act (ARCRA@), 42 USC ' 6926(b). MDEQ administers the program using Part 111 of the Natural Resources and Environmental Protection Act, MCL 324.1111, et seq, the Part 111 administrative rules, R 299.9101 et seq., and other sections and standards of NREPA incorporated into Part 111 and its rules, including portions of Part 17 and Part 201.

18. Defendant Russell J. Harding is the Director of the MDEQ, and the official designated to sign the consent order described in the allegations below.

19. Defendant Arthur Nash is the Deputy Director of Programs and Regulations Division at MDEQ and one of the officials most directly involved in the matters described below.

Jurisdiction and Venue

20. This Court has jurisdiction to hear this case, and to grant declaratory, injunctive, and other relief, under authorities including but not limited to:

a. MCL 324.11151, which provides for citizen suits against MDEQ, among others, for violations of Part 111 of the Natural Resources and Environmental Protection Act, MCL 324.11101, et seq., or its administrative rules;

b. MCL 324.1101, which provides for direct judicial review, on leave granted, of certain procedural decisions by MDEQ;

c. MCL 324.1704 and 1705, which authorize the Circuit Court to issue orders for intervention in, or remand to, administrative proceedings where available by law;

d. MCL 600.631, which provides for appeals from certain state agency decisions;

e. MCR 3.310, which authorizes the Circuit Court to issue temporary restraining orders, preliminary injunctions, and permanent injunctions; and

f. MCR 2.605, which authorizes the Circuit Court to grant declaratory relief.

21. Venue is proper under MCL 324.11151(1), which provides in part: An action under this subsection may be brought in the circuit court for the county of Ingham or for the county in which the defendant is located, resides, or is doing business.

22. Venue is also proper under MCL 600.631, which provides for appeals from state agencies to be filed in Ingham County.

Factual Allegations

The Dow dioxin problem

23. The Dow Chemical Company (Dow) owns and operates a regulated treatment, storage and disposal facility for hazardous waste (facility), as defined in Part 111 of the Natural Resources and Environmental Protection Act, MCL 324.1111, et seq. The facility includes, but may not be limited to, the campus and surrounding environs of Dow's manufacturing plant in the City of Midland.

24. There have been numerous releases of hazardous waste from the Dow facility.

25. Hazardous wastes released include polychlorinated dibenzodioxin and dibenzofuran isomers (collectively, dioxin). Ex 1, Petitioned Health Consultation - Public Comment Release - Dioxin Contamination in Soil.

26. Dioxin is the unwanted byproduct of incinerating chlorinated waste, such as some plastics, bleached paper and some industrial wastes. It can also be created during the manufacture of some chlorinated chemicals, like pesticides and solvents. Dioxin can travel long distances, and deposit in lakes and waterways, on pastureland, and on crops.

27. Dioxin is the most toxic synthetic substance known to science. It is harmful even at miniscule concentrations.

28. According to the Agency for Toxic Substances and Disease Registry (AATSDR@), dioxin has been linked, in animal studies, to endometriosis, immune system impairment, diabetes, neurotoxicity, birth defects, miscarriages, decreased fertility, testicular atrophy, reduced production of sperm, reproductive dysfunction, and cancer. Ex 2, Toxicological Profile - prepared by Research Triangle Institute for U.S. Department of Health and Human Services (December 1998) - (pp 9-12 and pp 68-189).

29. The ATSDR has further identified potentially highly exposed groups including nursing infants, high fish consumers in areas with elevated levels of dioxin in fish, consumers who raise their own livestock in locations with elevated levels of dioxin, and residents near dioxin sources. Ex 3, Toxicological Profile - prepared by Research Triangle Institute for U.S. Department of Health and Human Services (December 1998) - (pp 477-497).

30. The EPA's draft dioxin reassessment concludes that it is likely that part of the general population is already at, or near, exposure levels where adverse effects can be anticipated. Ex 4, Risk Characterization of Dioxins - Linda S. Birnbaum, Ph.D., DABT, Director, Experimental Toxicology Division, EPA.

31. Dow's releases of dioxin have caused contamination of soils, sediments, groundwater, surface water, wildlife, and local produce and animal products, and threats to public health. Ex 1; Ex 5, Letter from Larsen, Toxicology & Response Section, Department of Community Health, to Mr. and Mrs. Michael Larson - July 1, 2002.

32. MDEQs residential direct contact cleanup criteria for dioxin is 90 parts per trillion (ppt).

33. Dioxin samples taken at public parks and schools in 1996 and 1998 found that the contaminant was ubiquitous in the Midland area. Ex 1.

34. In the 1998 community sampling, mean dioxin levels ranged from 109 ppt to 188 ppt, with a high of 584 ppt. The mean level in each area tested was over the 90 ppt residential direct contact cleanup standard. Ex 1; Ex 6, 1998 Dow/Midland Dioxin Study (Dow) - table prepared by Al Taylor, MDEQ; and Ex 7, Letter from Wallin, DOW Environmental, Health & Safety Div., to DEQ and EPA - March 15, 1999.

35. The highest level found on the perimeter of the Dow facility was 1,068 ppt, and along the route used by Dow vehicles, the highest measured level was 2,663 ppt. Ex 1 & 6.

36. In order to compare contamination in Midland to other communities, MDEQ also sampled two other similarly sized communities. The levels in Midland were at least 10 times higher than in the control communities. Ex 8, Michigan Soil Background Dioxin Study. The average background dioxin level in the control communities was 6 ppt. Id. The highest dioxin level found anywhere outside of Midland and the downstream areas was 35 ppt. Id.

37. MDEQ also took 36 initial samples from down river areas lying within the Tittabawassee River floodplain. This sampling found levels ranging from 35 ppt to 7,261 ppt, with an average level of 998 ppt. Ex 6; Ex 9, DEQ Information Bulletin, Tittabawassee/Saginaw River Flood Plain - February 2002; and Ex 10, Petitioned Health Consultation - Public Comment Release - Dioxin Contamination in the Tittabawassee River Floodplain South of Midland, prepared by the U.S. Department of Health & Human Services, Agency for Toxic Substances and Disease Registry, March 4, 2002.

38. Extensive MDEQ follow-up sampling of river sediments found levels that ranged from 5 to 2,000 ppt, with higher levels in depositional zones along the river. Ex 11, Baseline Chemical Characterization of Saginaw Bay Watershed Sediments prepared by Allan B. Taylor, Senior Geologist, and John McCabe, Environmental Management Division, MDEQ, August 29, 2002. Floodplain soils sampled ranged from 300 to 1,500 ppt. Id.

39. In short, significant areas of soils at and near the Dow facility, soils in residential and other areas within the City of Midland, parts of Midland Township, and the Tittabawassee River, its floodplain, and other downstream areas in proximity to the river are contaminated with dioxin in excess of 90 ppt.

The Consent Order

40. Defendant Harding's initial response to the dioxin problem in the Midland area was to attempt to raise the residential direct contact standard for dioxin from 90 ppt to 150 ppt. Ex 12, various DEQ staff emails from November 2001.

41. After raising the dioxin standard proved to be politically infeasible, MDEQ and Dow proposed to enter into a draft Corrective Action Consent Order (Consent order). Ex 13, DEQ RRD Corrective Action Consent Order.

42. On information and belief, the consent order was drafted by Dow's counsel.

43. The purpose of the consent order is to provide for investigation and corrective actions for certain exposure pathways for dioxin on residential properties in designated areas of the City of Midland and Midland Township. Ex 13, Consent Order, & 1(a)-(c).

44. The primary exposure pathway to be governed by the consent order is exposure through direct human contact B the same exposure pathway designated by the residential direct contact criteria of 90 ppt. Ex 13, Consent Order, & 1(b).

45. However, instead of 90 ppt, the consent order purports to establish an interim action level for dioxin of 831 ppt, a level almost ten times higher than that allowed by law. Ex 13, Consent Order, & 8.2.

46. The interim action level is the threshold level which will trigger Dow's responsibility to perform corrective action under the consent order. In other words, Dow will be required to perform corrective action in only those areas where it finds dioxin levels over 831 ppt. Dow will not be required to perform corrective action in areas where it finds dioxin levels above the residential direct contact criteria of 90 ppt, but less than 831 ppt. Ex 13, Consent Order, && 8.3(e) & 8.6.

47. The interim action level of 831 ppt was determined by Dow based on the conclusions of a probabilistic risk assessment it performed. Ex 13, Consent Order, & 8.2; Ex 14, Calculation of a Site-Specific Soil Criterion for Midland, Michigan.

48. The consent order between MDEQ and Dow also purports to establish a process by which Dow will determine a revised interim action level for dioxin, based on the results of an oral bioavailability study also to be performed by Dow. Ex 13, Consent Order, & 8.5 & attachment 2.

49. The purported purpose of the oral bioavailability study is to estimate how much of the dioxin in contaminated residential soil which is inadvertently consumed by children will be absorbed into their intestinal tracts. Ex 13, Consent Order, attachment 2.

50. The factors generated by the oral bioavailability study will then be input into the probabilistic risk analysis to generate a new and likely higher, action level for dioxin than the 831 ppt set by the consent order. Ex 13, Consent Order, & 8.5.

51. Dow will then be relieved of having to perform corrective action in any areas where dioxin levels are above the interim action level of 831 ppt, but below the yet-to-be-determined revised interim action level. Ex 13, & 8.7.

52. Technical staff from within MDEQ and EPA have pointed out numerous flaws in the probabilistic risk assessment and the bioavailability study, and therefore in the use of 831 ppt as an interim action level for dioxin.

53. These flaws include:

a. the lack of validation for Dow's unapproved method of risk assessment;

b. Dow's failure to use existing EPA data on dose-response for dioxin exposure to human beings;

c. faulty assumptions about the existence of multiple exposure pathways for dioxin;

d. failure to use, or systematically weigh or rank, all available data in generating a probability density function for estimating the range of possible exposures;

e. the absence of a sensitivity analysis to determine which exposure parameters have the greatest influence on the soil criteria; an inconsistency between the results of the model and the State's residential direct contact cleanup criteria, which do not even appear in the distribution produced by the probability model; and

f. unsupported assumptions about the grain size, depth, homogeneity, and other characteristics of soils in the area of concern.

See, Ex 15, Letter from Arthur Nash, DEQ, to Jeffrey Feerer, Senior Environmental Issue Leader, Dow, April 8, 2002 - with enclosed DEQ Preliminary Comments on the Dow Chemical Commissioned Study: Estimation of the Oral Bioavailability of Dioxins/Furans in Soil from Midland, Michigan, April 8, 2002; Ex 16, EPA Memo dated July 25, 2002, regarding Review comments for Oral Bioavailability Study; Ex 17, EPA Region 5 comments dated September 5, 2002 on the Report: Calculation of a Site-Specific soil Criterion for Midland, Michigan; Ex 18, September 9, 2002 DEQ comments on PRA; and Ex 19, E-mail dated November 25, 2002 from Gregory Rudloff, EPA, with attached letter from EPA to DEQ.

54. These flaws have not been corrected or resolved.

55. The Attorney General's office has pointed out that the only existing attempts to apply PRA to derive a cleanup standard for dioxin in residential soils are certain reports prepared by Dow's consultant, Exponent. Ex 20, October 10-11, 2002 e-mail exchange between Art Nash, DEQ, Robert Reichel and Mike Leffler, Attorney General's office.

56. Dow's 831 ppt standard also fails to reflect the most up-to-date science on the toxicity of dioxin.

57. EPA has been reviewing the science on dioxin's toxicity for more than 10 years. A draft report, which has been peer-reviewed twice, summarizes the latest science on dioxin. That draft report defines a new cancer slope factor for dioxin, among other changes. Ex 4.

58. According to the Michigan Department of Community Health, the draft report will require MDEQ to revise its residential direct contact criteria for dioxin downward, not upward, from 90 ppt to somewhere between 12 and 53 ppt. Ex 21, e-mail dated January 17, 2002 from Linda Larsen DEQ to Christine Flaga, et al regarding dioxin criteria.

59. Without judicial intervention, the interim action level and revised interim action level being invented for the consent order will simply foist the risks of uncertainty about dioxin exposures on the people of Midland, and particularly on their children, who are most vulnerable to dioxin.

The Operating License

60. MDEQ and Dow have also proposed to enter into a Hazardous Waste Management Facility Operating License for the continued operation of the facility (Operating license). Ex 22, DEQ Hazardous Waste Management Facility Operating Agreement (10-07-02 draft).

61. The operating license also contains provisions regarding corrective action to be performed by Dow.

62. However, the corrective action provisions in the operating license are substantially different than the corrective action provisions of the consent order.

63. For example, the operating license states that MDEQ may require corrective action for areas off the facility site that exceed the environmental protection standards in MCL 324.20120a(1)(a) and (17) B the provisions under which MDEQ set the 90 ppt residential direct contact criteria. Ex 22, Operating license, Part XI, section B.

64. As another example, the operating license requires Dow to first determine the nature and extent of the dioxin release in the surrounding community, rather than setting a desired dioxin level and then performing corrective action where dioxin is found at that level. Ex 22, Operating license, Part XI, sections F and G. The importance of this difference is discussed more in Count II, below.

The Attorney General's Opinion

65 MDEQ and Defendant Nash negotiated the consent order with Dow and Dow's counsel without requesting any assistance or participation from the Attorney General's office.

66 MDEQ did not provide the consent order to the Attorney General's office for review until October 1, 2002, just before the consent order was to be released for public comment on October 7, 2002.

67 In a memo dated October 3, 2002, Assistant Attorney General in charge of the Environment, Natural Resources, and Agriculture Division Michael Leffler advised Defendant Nash that the consent order is illegal and that DEQ lacks the legal authority to sign it. Ex 20.

68 Leffler also advised Nash that the [consent order] is fatally flawed and the DEQ cannot legally bind itself in the way the agreement contemplates. Ex 20.

69 Leffler pointed out that among its flaws, the consent order:

(1) unlawfully purported to relieve Dow of certain liability to the state;

(2) arbitrarily and illegally established certain >action levels for dioxin in soils ten times greater than DEQ's existing statewide standards under Part 201 through processes not in compliance with Parts 111 and 201;

(3) unlawfully delegated DEQ regulatory authority to private parties; and

(4) illegally substituted >dispute resolution procedures involving a de novo trial in Midland County Circuit Court for the administrative and judicial processes specified in applicable law. Ex 20.

70 On October 11, 2002, Assistant Attorney General Robert Reichel, also from the Environment, Natural Resources and Agriculture Division, advised Defendant Nash that

[I] T is bedrock principle of administrative law that an agency may not exercise its statutory authority in an arbitrary or capricious manner. DEQ, like any other agency must instead proceed in an orderly, rational and deliberate fashion to consider all appropriate factors and information, and provide members of the public affected by its decisions meaningful notice and an opportunity to be heard. Unfortunately, the course of action outlined in your note, and reflected in even the most recent Dow re-draft of the proposed order, utterly fails on all those counts and is therefore illegal. Ex 20.

71 On information and belief, MDEQ and Defendants Nash and Harding have chosen to ignore the advice of their attorneys and proceed with signing the consent order as soon as possible.

72 On information and belief, MDEQ and Defendants Nash and Harding have sought to hire outside counsel to review the consent order and provide different conclusions than those reached by the Attorney General's office.

 

 

The Consent Order process

73 On October 7, 2002, MDEQ issued a public notice on the operating license. Ex 23, DEQ fact sheet for Operating License - October 7, 2002.

74 On October 7, 2002, MDEQ issued a public notice on the consent order. Ex 24, DEQ Public Notice - Corrective Action Consent Order.

75 On November 21, 2002, MDEQ held a public hearing on the consent order and operating license.

76 The public comment period for both the consent order and the operating license ends on December 9, 2002. Ex 23 & 24.

77 On information and belief, Defendants Harding and Nash intend to have the consent order and operating license signed as quickly as possible after the close of the public comment period on December 9, 2002 B possibly within a couple of days.

78 Many of the Plaintiffs, or their representatives, attended the public hearing.

79 Many of the Plaintiffs, or their representatives, have submitted oral or written comments on the consent order and/or operating license, and wish to submit more comments.

80 In addition to the public hearing, MDEQ officials, including Defendant Nash and possibly Defendant Harding, have held a number of private meetings with Dow.

81 Some of the Plaintiffs, or their representatives, have requested to attend those meetings. MDEQ has denied their requests.

82 On November 2, 2003, Plaintiffs filed a petition to intervene in the administrative proceeding between MDEQ and Dow under MCL 324.1151(11), MCL 324.1705, and R 299.9514(7).

83 At the time the reader is reviewing this complaint, MDEQ has either denied or refused to act on the petition to intervene.

84 MDEQ has also stated in the news media that it will refuse to grant the petition to intervene. Ex 25, Saginaw News article dated 12/3/02.

85 During the last month, some of Plaintiffs or their representatives have contacted MDEQ requesting an extension of the public comment period. Ex 26, e-mail exchange dated October 31-November 6, 2002 between Dave Dempsey, Michigan Environmental Council, and Jim Sygo, DEQ.

86 EPA has also raised substantial objections to the consent order, and requested more time to comment. Ex 19.

87 MDEQ has denied these requests. Ex 26.

88 On November 2, 2003, Plaintiffs counsel wrote to MDEQ asking MDEQ to extend the public comment period because of deficiencies in the public notices and public hearing. Ex 27, letter from C. Bzdok to J. Sygo dated 12/02/02.

89 At the time the reader is reviewing this complaint, MDEQ has either denied or refused to act on the request by Plaintiffs counsel.

90 MDEQ has also stated in the news media that it will refuse to grant any extension to the public comment period. Ex 25.

91 One could form the opinion that Defendants Harding and Nash are hurrying the consent order process, even in violation of some of the public participation requirements of Part 111 (outlined below), in order to help Dow lock in favorable terms before Defendants Harding and Nash leave office in January 2003.

Count I

Application for Leave to Appeal MDEQ Procedural Decisions

92 Plaintiffs reallege the previous paragraphs.

93 MCL 324.1101 provides:

(1) If a person has legal standing to challenge a final decision of the department under this act regarding the issuance, denial, suspension, revocation, annulment, withdrawal, recall, cancellation, or amendment of a permit or operating license, the commission, upon request of that person, shall review the decision and make the final agency decision. A preliminary, procedural, or intermediate decision of the department is reviewable by the commission only if the commission elects to grant a review. If a person is granted review by the commission under this section, the person is considered to have exhausted his or her administrative remedies with regard to that matter. The commission may utilize administrative law judges or hearing officers to conduct the review of decisions as contested case hearings and to issue proposals for decisions as provided by law or rule.

(2) In all instances, except those described in subsection (1), if a person has legal standing to challenge a final decision of the department under this act, that person may seek direct review by the courts as provided by law. Direct review by the courts is available to that person as an alternative to any administrative remedy that is provided in this act. A preliminary, procedural, or intermediate action or ruling of the department is not immediately reviewable, except that the court may grant leave for review of a preliminary, procedural, or intermediate action or ruling if the court determines that review of the final decision would not provide an adequate remedy. If a person is granted direct review by the courts under this section, the person is considered to have exhausted his or her administrative remedies with regard to that matter.

94 MDEQ has made several procedural decisions in this case which are in violation of Part 111 and/or the Part 111 rules:

Public Hearing Procedures

95 Public hearings under Part 111 are governed by R 299.9514(7). That rule states:

The provisions of Act 306 [the Administrative Procedures Act] governing a contested case shall apply to all hearings under this rule. Ex 28, selected provisions of Part 111 Rules.

96 MDEQ did not apply the provisions of the Administrative Procedures Act (AAPA@) governing a contested case to the public hearing on November 21, 2002.

97 Had the procedures for an APA contested case been applied to the public hearing, Plaintiffs and other affected residents and members of the public would have had the following rights that they did not have at the November 21st hearing, due to the manner in which it was held:

a0 the right to a decision based solely on the information in the public record, as opposed to the numerous confidential documents and secret communications relied on by MDEQ (MCL 24.276);

b0 the right to an impartial hearing officer who did not participate in confidential or ex parte communication with Dow (MCL 24.279 and MCL 24.282);

c0 the right to a written proposal for decision and final decision making factual and legal determinations (MCL 24.281);

d0 the right to intervene as a party (MCL 324.11151(11) and MCL 324.1705); and

e0 the right to cross-examination (MCL 24.272(4)).

Public Notice Requirements

98 R 299.9511(3)(a)(iii) requires that the notice for a public hearing under Part 111 must state the mailing address where public comments are to be submitted.

99 The public notice for the November 21, 2002 public hearing on the consent order did not provide a name or mailing address where public comments were to be submitted. Ex 24.

100 In addition, the operating license contained detailed provisions related to corrective action. Ex 23; Ex 22, Operating License, Part XI.

101 These corrective action provisions were supplanted and eliminated by the consent order, after the notice and comment on the operating license had already begun. Compare Ex 13, Consent Order, Sections 8.1 - 8.7 and Ex 22, Operating License, Part XI.

102 However, the operating license was never amended to correct these inconsistencies, nor was it re-noticed with the inconsistencies noted.

103 Therefore, the operating license, and the notice describing it, contain inaccurate information about the corrective actions to be performed by Dow.

Denial of Intervention

104 MCL 324.1151(11) provides:

A person who has an interest that is or may be affected by a civil or administrative action commenced under this Part has a right to intervene in that action. [Emphasis added].

105 The consent order and operating license being negotiated by MDEQ and Dow is for corrective action due to violations by Dow of Part 111 and its rules B specifically the releases of dioxin from the facility.

106 The consent order is being negotiated by MDEQ through its administrative enforcement authority under MCL 324.1151, which allows MDEQ to issue administrative orders requiring Dow to undertake corrective action.

107 For all the reasons outlined above, Plaintiffs have an interest that is or may be affected by the ongoing administrative proceeding which is expected to culminate in the consent order and operating license.

108 Therefore, Plaintiffs have a right to intervene in the proceeding. The statute does not provide MDEQ with the discretion to turn them down.

109 The consent order is also being negotiated by MDEQ through its authority under Part 17 of NREPA, MCL 324.1701, et seq., which was formerly known as the Michigan Environmental Protection Act. Ex 13, Consent Order (see caption).

110 Section 1705 of NREPA provides in part:

(1) If administrative, licensing, or other proceedings and judicial review of such proceedings are available by law, the agency or the court may permit the attorney general or any other person to intervene as a party on the filing of a pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is likely to have, the effect of polluting, impairing or destroying the air, water or other natural resources or the public trust therein.

(2) In administrative, licensing, or other proceedings, and in any judicial review of such a proceeding, the alleged pollution, impairment, or destruction of the air, water, or other natural resources, or the public trust in those resources, shall be determined, and conduct shall not be authorized or approved that has or is likely to have such an effect if there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety, and welfare. MCL 324.1705(1)-(2).

111 Plaintiffs filed a Petition to Intervene in the proceeding between MDEQ and Dow, containing the necessary elements under MCL 324.1151(11) and MCL 324.1705.

112 At the time the reader is reviewing this complaint, MDEQ has either denied the request to intervene or refused to act on it before signing the consent order and operating license.

113 MDEQ has already stated in the news media that it will not grant the request for intervention. Ex 25, Saginaw News Article.

114 MDEQ's refusal to allow Plaintiffs to intervene is arbitrary and capricious, an abuse of discretion, contrary to law, and otherwise invalid because the sole or primary basis for MDEQ's decision is to push the consent order and operating license through before Defendants Harding and Nash leave office.

115 In sum, MDEQ has failed to follow the required public hearing proceedings, failed to follow the required public notice requirements, and refused to grant Plaintiffs intervention.

116 All of these procedural decisions by MDEQ, and its refusal to correct deficiencies in them, have impaired the rights of the public, including Plaintiffs, to participate in the Part 111 process on an issue of tremendous public interest and importance.

117 Review of MDEQ's final decision will not provide Plaintiffs with an adequate remedy, because the consent order will already be signed, MDEQ could be arguably bound by its signature with Dow, and Plaintiffs will arguably have no recourse or limited recourse for the denial of their rights to participate in the process leading up to the signing of the consent order at that time.

118 Therefore, it is appropriate to grant leave to appeal these MDEQ procedural decisions before the consent order is signed.

Count II

Part 111 Citizen Suit

119 Plaintiffs reallege the previous paragraphs.

120 MCL 324.11151(1) provides in part:

The attorney general or a person may commence a civil action against a person, the department, or a health department certified under section 11145 for appropriate relief, including injunctive relief for a violation of this part including a corrective action requirement of this part, or a rule promulgated under this part...The court has jurisdiction to restrain the violation and to require compliance. [Emphasis added]

121 As MDEQ has already been advised by its own counsel, the consent order violates several provisions of Part 111 and its rules.

122 For example, the consent order's proposed interim action level is not consistent with the Part 111 rules on corrective action.

123 Rule 299.9629 states, in relevant part:

(a) Owners or operators of facilities that apply for, or have been issued, an operating license pursuant to the provisions of part 111 of the act shall institute corrective action for all releases of a contaminant from any waste management units at the facility, regardless of when the contaminant may have been placed in or released from the waste management unit. [R 299.9629(1)(a)}

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(3) The owners or operators who are required to establish a corrective action program pursuant to the provisions of part 111 of the act and these rules shall, at a minimum, do the following, as applicable: (a) For facilities that are specified in subdivision (a) of subrule (1) of this rule, the owner or operator, or both, shall take corrective action to ensure compliance with the groundwater protection standards, and, if necessary, other applicable environmental protection standards, established by the director. The director shall specify in a permit, operating license, postclosure operating license, consent order, or other order, in accordance with this rule and R 299.9635 and R 299.9636, schedules of compliance for corrective action and assurances of financial responsibility for completing the corrective action and other requirements, including, any of the following:

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(iii) The environmental protection standards which are necessary for the cleanup and protection of soil, surface water, sediments, and ambient air that are established pursuant to the provisions of part 201 of the act if the limits are not less stringent than allowed pursuant to the provisions of RCRA. [R 299.9629(3)] [Emphasis added]

124 In short, the rule requires that an MDEQ consent order with an owner or operator of a facility where a release has occurred must specify corrective action. Moreover, the action levels for corrective action specified in the corrective order must be not less restrictive than those established under Part 201 of NREPA.

125 The action level for dioxin under Part 201 is 90 ppt.

126 The only action level specified in the consent order is 831 ppt.

127 831 ppt is less restrictive than 90 ppt. It is almost ten times less restrictive.

128 According to Ex 20, Defendants and/or Dow have attempted to justify the interim action level as a site-specific standard under Part 201 of NREPA.

129 However, there is no authorization in R 296.9629 to use site-specific criteria as standards for corrective action. The rule requires MDEQ to use the environmental protection standards which...are established pursuant to the provisions of part 201.

130 The plain language of the rule only provides the authority to use already-established dioxin standards.

131 There is no authority to develop new standards on a site-specific basis under Part 201, for use in corrective actions under Part 111.

132 This interpretation is consistent with Part XI, section B of the operating license, which states that MDEQ may require corrective action for off-site areas that exceed the environmental protection standards in MCL 324.20120a(1)(a) and (17). That standard is 90 ppt for dioxin. Ex 22, Operating License.

133 Even if there was regulatory authorization to develop site-specific standards under Part 201 for use in a Part 111 corrective action, the interim action level specified in the consent order is not a site-specific standard.

134 Part 201provides in part:

(1) The department may establish cleanup criteria and approve of remedial actions in the categories listed in this subsection. The cleanup category proposed shall be the option of the person proposing the remedial action, subject to department approval, considering the appropriateness of the categorical criteria to the facility. The categories are as follows:(a) Residential.(b) Commercial.(c) Recreational.(d) Industrial.(e) Other land use based categories established by the department.(f) Limited residential.(g) Limited commercial.(h) Limited recreational.(i) Limited industrial.(j) Other limited categories established by the department.

(2) The department may approve a remedial action plan based on site specific criteria that satisfy the applicable requirements of this part and the rules promulgated under this part. The department shall utilize only reasonable and relevant exposure pathways in determining the adequacy of a site specific criterion. Additionally, the department may approve a remedial action plan for a designated area-wide zone encompassing more than 1 facility, and may consolidate remedial actions for more than 1 facility.

(3) The department shall develop cleanup criteria pursuant to subsection (1) based on generic human health risk assessment assumptions determined by the department to appropriately characterize patterns of human exposure associated with certain land uses. The department shall utilize only reasonable and relevant exposure pathways in determining these assumptions. The department may prescribe more than 1 generic set of exposure assumptions within each category described in subsection (1). If the department prescribes more than 1 generic set of exposure assumptions within a category, each set of exposure assumptions creates a subcategory within a category described in subsection (1). The department shall specify site characteristics that determine the applicability of criteria derived for these categories or subcategories.(MCL 324.20120a)

135 The purpose of developing site-specific criteria under sub-section (2), above, is to use the best available science to determine risks based on the characteristics of the specific site where the release has occurred.

136 However, no site has been identified by Dow where the release has occurred.

137 Under the consent order, both the interim action level and the revised interim action level are to be determined by Dow before Dow characterizes the nature and extent of the releases from the facility; in other words, before Dow determines what the site is.

138 Without determining the site first, Dow cannot determine, among other things, the soil characteristics of the site so as to determine a site-specific criteria under MCL 324.20120a(2). 139 This requirement to determine the nature and extent of the release, and therefore the site for which site-specific criteria could even arguably be developed, does exist in part XI, sections F and G, of the operating license. Ex 22, Operating License. However, MDEQ and Dow have purported to obviate that requirement through contrary provisions in the consent order.

140 MDEQ's own outside consultant has commented that the studies being conducted by Dow to determine the interim action level and revised interim action level are not site-specific evaluations. Ex 29, letter dated October 31, 2002, from Parametrix, Inc. to DEQ, with comments on Dow's Calculation of a Site-Specific Soil Criterion for Midland, Michigan.

141 In addition, MCL 324.20120a(2) provides that MDEQ may approve a remedial action plan based on site-specific cleanup criteria. However, the consent order does not include any remedial action plan, so there is no basis for the development or use of site-specific criteria. 142 In addition, the revised interim action level described in the consent order is not a authorized by under Part 201 because it is to be determined by Dow, rather than MDEQ.

143 This delegation to Dow of MDEQ's regulatory responsibility is not authorized by MCL 324.20120a(2), which provides that The department shall utilize only reasonable and relevant exposure pathways in determining the adequacy of a site specific criterion.

144 Finally, the criticisms of MDEQ's own technical staff, as well as that of EPA, demonstrate that MDEQ is not using the best available science to determine the dioxin standards, as defined in R 299.5701(d).

145 MDEQ's authorization, through the consent order, for Dow to set a dioxin interim action level that is above the residential cleanup criteria for dioxins, and its authorization to Dow to determine its own interim and revised interim action levels which are not based upon properly established cleanup criteria, are in violation of Part 111 and its rules, are contrary to law, are arbitrary and capricious and an abuse of discretion, and will result in unacceptable risks to public health.

146 MCL 324.1151(1) provides the Circuit Court with the authority to restrain MDEQ from violating Part 111 and its rules.

147 In addition to these substantive violations just outlined, MCL 324.1151(1) provides the Circuit Court with the authority to restrain MDEQ from violating Part 111 and its rules on the procedural matters described in Count I of this complaint.

148 Finally, MCL 324.1704 and 1705, which are read in pari materia with Part 111, allow for de novo review of MDEQ's action by a Circuit Court.

 

Count III

Request for Declaratory and Injunctive Relief 149 Plaintiffs reallege the previous paragraphs.

150 The violations of Part 111 and its rules, the loss of Plaintiffs procedural rights, the risks to public health created by the possible implementation of the consent order, and the severe prejudice to Plaintiffs in seeking review of the consent order once it is signed are all harms that have no adequate remedy at law.

151 These violations and losses will cause Plaintiffs irreparable injury.

152 Declaratory and injunctive relief, including temporary and preliminary injunctive relief, is necessary in order to preserve and protect Plaintiffs from these harms and to preserve the status quo pending a final decision on the merits of these issues.

REQUEST FOR RELIEF

For the reasons outlined above, Plaintiffs respectfully request that the Court grant us the following relief:

A0 Declare the consent order to be illegal and contrary to the requirements of Part 111 and its rules;

B0 Grant temporary, preliminary, and permanent injunctive relief prohibiting Defendants from entering into, signing, or otherwise giving effect to the consent order and operating license due to its illegality;

C0 Grant temporary, preliminary, and permanent injunctive relief prohibiting Defendants from entering into, signing, or otherwise giving effect to the consent order and operating license until Defendants hold a public hearing consistent with the requirements of R 299.9514(7);

D0 Grant temporary, preliminary, and permanent injunctive relief prohibiting Defendants from entering into, signing, or otherwise giving effect to the consent order and operating license until Defendants correct the deficiencies in the public notices for the consent order and operating license, and then provide for the required public comment period on correct notices;

E0 Order Defendants to allow Plaintiffs to intervene in the administrative proceedings related to the consent order and operating license under Part 111 and Part 17 of NREPA;

F0 Award Plaintiffs their costs of litigation, including reasonable attorney and expert witness fees, under the authority of MCL 324.11151; and

G0 Grant all other relief that is appropriate under the circumstances.

Olson & Bzdok, p.c.

Attorneys for Plaintiffs

Date: December 5, 2002

By:

Christopher M. Bzdok (P53094)

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