DEQ tries to clarify polluted property criteria


Faced with legislation that would severely restrict the state's ability to label any property a polluted "facility," the Department of Environmental Quality is battling back.

The department approved a policy this week that defines for the first time the process and criteria for declaring a property a facility in contamination cases.

Until now, the state has operated under Part 201 of the Natural Resources and Environmental Protection Act -- a section pertaining to facilities -- without a specific departmental policy on how to carry it out.

DEQ Director Steven Chester hopes the policy will clarify a confusing and controversial point of environmental law and provide a convincing alternative for senators considering a bill to limit the state's ability to designate properties as a facility.

"We think this is an appropriate response to the concerns raised by citizens," Chester said.

Although new, the policy deviates little from the state's existing practices. It states that officials may declare a property a facility only when they have confirmed contamination through sampling, received remediation plans that include the property or determined by "reasonable inference" that the property is polluted.

The policy also allows the state to include only a portion of the property in the facility -- language also used in the bill proposed by Rep. John A. Moolenaar, a Midland Republican.

Moolenaar said the policy does little to address the concerns of some riverside residents who say their properties are unjustly branded as facilities without on-site sampling to prove it.

"I don't believe this moves us forward," he said. "I believe it further clouds the issue."

Moolenaar's bill, passed by the state House last month and now before the Senate, would prohibit the state from designating any property a facility without sampling.

The state must verify the contamination before exposing residents to potential economic harm, he said

State officials counter that the law would carry a heavy financial burden, diverting money and time from cleanup to sampling, and make it more difficult for the department to hold polluters liable.

While the new policy would allow officials to designate only portions of properties -- an approach Moolenaar favors -- the legislator said it still gives the state too much leeway to impose the facility designation on any property it sees fit.

"'Reasonable inference' is a phrase that can be interpreted with a wide variation, depending on who is doing the interpreting," he said. "There needs to be clear language and specific data. This leaves too much open for interpretation."

Chester said the legislator is exaggerating the issue.

"Engineers have to make good engineering judgments on permit applications and apply their technical expertise," he said. "Scientists and geologists have to do the same thing.

"The criticism is overblown. We are expected to exercise judgment based on all the available data."

Under the policy, about 400 properties along the Tittabawassee River are considered facilities. Chester said the widely publicized figure of 2,000 parcels is incorrect. The designation applies only to properties within the 100-year floodplain that are deemed priority 1 and priority 2 areas.

The number of applicable properties likely will increase as Dow Chemical Co. continues to track the scope of contamination downstream from its Midland plant.

Moolenaar doesn't expect the policy to have any adverse affect on pending legislation. Instead, he believes it may strengthen his position that it is the Legislature, not political appointees, who should decide such issues.v

Jeremiah Stettler is a staff writer for The Saginaw News. You may reach him at 776-9685.

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