Goschka bill angers activists

Wednesday, November 30, 2005 JEREMIAH STETTLER THE SAGINAW NEWS

Dow Chemical Co. might have a say in deciding which properties it has polluted.

State Sen. Michael J. Goschka has added language to a hotly contested environmental bill that would require written consent by the property owner, the state and the polluter before including any property in a contaminated "facility."

The language would apply to properties that have not had testing to prove the presence of pollution.

The change has environmental groups howling, claiming it gives industries such as Dow the power to decide whose property gets cleaned up and whose doesn't.

"What this Senate bill essentially does is negates the argument that this is about property rights or homeowner fairness," said Michelle Hurd Riddick, spokeswoman for the environmental watchdog group Lone Tree Council.

"There is nothing fair about giving the polluter control over your property and your children's safety."

Goschka calls it a matter of due process. Just as property owners shouldn't bear the economic burden of unproven contamination, neither should the accused polluter.

"Someone has to give the perceived liable party its due process, its day in court, because it will end up paying the bill," said Goschka, a Brant Republican.

"My feeling is that it is wrong to assume contamination and make a company pay for it when there may not be contamination. It needs to be proven."

Dubbed the "Homeowners Fairness Act," the bill would prohibit the state from labeling any property a contaminated "facility" -- a designation used to trigger cleanup -- without specific testing.

Until recently, it also allowed homeowners to add their properties to that list if their land was in the "vicinity" of the contamination, even without soil testing.

The latter has changed. The property owner, the state and the liable party each would have to sign off on the move.

Goschka refers to the revision as a "innocent until proven guilty" approach to environmental law, saying it properly balances the rights of property owners and businesses.

Russ J. Harding, former director of the Department of Environmental Quality and senior environmental policy analyst with the Mackinac Center for Public Policy in Midland, favors the change.

He said the language could allow a polluter to proceed with cleanup without the financial burden of sampling.

"The idea here is that if you have a liable party willing to move forward, and the department is in agreement, they could do it without individual testing," he said.

Therein lies the trouble, state regulators say.

"What would be the incentive for the polluter to agree to that?" asked DEQ spokesman Robert McCann. "You are asking them to admit guilt and take financial responsibility."

The more likely scenario, he said, is that polluters would use the language to shield themselves from liability, potentially blocking the inclusion of properties in a facility without on-site sampling.

McCann said the bill represents an "unprecedented" shift in environmental enforcement that amounts to protecting the polluter.

"You are putting the administration of the law in the hands of someone who broke it," he said. "It really is giving the responsible party the authority to say how and where (the contamination) gets cleaned up."

Not so, Goschka said. The bill may protect the rights of the accused polluter, but it does not shift power from the regulator to the regulated.

The state still could require soil testing in cases that pose an imminent health threat, Goschka said.

"The DEQ has the ace card, the trump card," he said. "If they believe there is a health threat, they can mandate testing on the site, and the company will pay for it."

Dow officials said they could not comment on the revised bill, having not seen the changes.

The bill is expected to come to the Senate floor for a vote in early December. v

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


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