October 3rd 2007 # 101
EPA Being Hypocritical?
At the August DEQ-Dow meetings, there was lengthy discussion about the City of Midland secreting away the results of the soil sampling in done in the city. EPA at that time admonished DEQ for agreeing to permit the city to hide this information ( location, TEQ) from the public. Yet one week after EPA walked away from the NRDA (see below) because it wasn't transparent, EPA struck a deal with the City of Midland to keep the information hidden. This after they told the public that the data was public under the RCRA process that governs Dow's cleanup. So folks either the data is public or it isn't. Given that both DEQ and EPA have agreed to a different standard for Midland it would seem some journalist/newspaper/ inquiring mind would be interested in finding out why? Or maybe everyone has acquiesced to ignoring the law for the home town of Dow Chemical.
EPA walks away from the NRDA
A little over 2 weeks ago the EPA issued a statement announcing their withdrawl from the Natural Resource Damage Assessment process because of lack of transparency. The NRDA is intended to rehab and restore natural resources to the level had the release of dioxin (other toxics) not occurred. Inherent in the NRDA is a confidentiality clause. What is at issue is what is being withheld from the public that is required to be public under Dow’s license. EPA stated:
This is how transparency was killed
Closed door meetings> Framework> NRDA> Confidentiality Clause in the NRDA> Alternative Dispute Resolution in the Confidentiality Clause
How did less than transparent process happen? How is transparency circumvented on such a high profile contamination/public resource issue? Two reasons. The influence of the polluter and acquiescence of elected officials seeking a venue to control the issue by taking it away from the public. In the case of Dow’s dioxin contamination, transparency’s death march started with a series of closed-door meetings not subject to Freedom of Information. In June of 2004, Lieutenant Governor Cherry and Dow went behind closed door for eight months to the exclusion of all others. At the end of the day we were left with a nebulous, problematic document called a “FRAMEWORK.
The mutually agreed upon Framework included a Natural Resource Damage Assessment or NRDA to address characterization- sampling, screening, resource impacts, losses, response activities and cleanup. Not necessarily bad on the face of it…………but it furthered the goal to keep secret a great deal of activity and information. It took the state and Dow no time at all to agree to implement a “ Confidentiality Agreement” under the NRDA process to discuss privately how they would achieve their objectives. It states:
· WHEREAS, in order for the Parties to have frank and productive discussions, and be able to explore timely and comprehensive resolution of these issues, the Parties have determined that a confidential negotiation process is necessary; and………..
The confidentiality agreement then created one more layer of secrecy by setting up the ADR process. The Alternative Dispute Resolution reads:
· The Mediation, including all dispute resolution communications, is confidential pursuant to the Administrative Dispute Resolution Act of 1996, 5 U.S.C. Section 574 (ADR Act). Except as expressly agreed to otherwise in this Agreement, the confidentiality provisions of the ADR Act, with the exception of 5 U.S.C. Section 574(b)(7), shall govern all dispute resolution communications.
It is within the NRDA process that Dow Chemical is attempting to keep information from the public. It is the process that EPA walked away from lapparently fatigued as is DEQ with Dow's attempts to use the ADR to secret information away. You can view the Confidentiality Agreement and the Alternative Dispute Resolution on the TRW web site.
Implications of the ADR
Do Dow and DEQ need to have private conversations? Yes. But under the ADR the public will never know at any point what was discussed or the process used to determine final outcomes or policy. Meeting notes, agendas and deliberation are not subject to freedom of information. In fact the facilitator for the ADR is required to " destroy" documents should he or she leave or when the process is over. How does an uninformed public adequately make public comment if we are not all privy to the same information? How do we participate as stakeholders and the rightful owners of these resources? This is no way to conduct the business of the taxpayers over resources we own. Yet it is happening.
EPA is walking away from the NRDA
Dow’s Corrective Action License by law (Resource Conservation and Recovery Act) demands transparency and public participation. The Natural Resource Damage Assessment operates outside Dow's RCRA corrective action and was established by Congress as an addition to cleanup laws like RCRA and CERCLA. Confusing I know. The issue as I understand it is Dow trying to keep information which is public under their corrective action license hidden in the venue of the NRDA.
EPA is responsible to see that the obligations of Dow’s federal license are met. Hard to say what’s hidden away because no agency is permitted to talk about it. Below is some of what we know:
In a 2006 Briefing Document EPA wrote:
“On March 1, 2006 Dow submitted a workplan for the investigation of the Upper Saginaw River to David Batson to be redistributed to MDEQ under the Alternative Dispute Resolution process .EPA and MDEQ are concerned that Dow is attempting to use the ADR process to keep a document that would be required by the operating license confidential.”
EPA Lone Tree FOIA
Vaughn index file given to Lone Tree Council documents listed confidential under the ADR and not subject to public disclosure. Total number of items as of August 2006 was 442 documents, e mails, communications.
Information on the DMDF
In more conversations than can be counted with DEQ and EPA we have been told that certain aspects of the Dredge Site cannot be discussed because they are subject to the Alternative Dispute Resolution. This writers experience has always centered on questions about Dow’s use of the DMDF followed by someone from EPA or DEQ saying that information is “ privileged” under the ADR or, “ I am limited by the ADR what I can share with you”.
EPA in a March 2006 Hot Issues document stated :
” Details of the ADR meeting contain confidential dispute resolution information protected by the provisions of ADR Act of 1996, which restricts the amount of detail that may be provided in a format such as a “Hot Issues” briefing. As a result, if there is a desire to discuss the details of the ADR meeting, a briefing may be requested from the contact for this issue. However, the general topics discussed during the meeting included the Dredged Materials Disposal Unit (DMDF) being proposed by the Army Corps of Engineers for navigational dredging,…………..”
DEQ comments to Dow August 29, 2007
Page 3 under general deficiencies DEQ tells Dow they cannot use the ADR work group to approve work plans, thus shielding it from the public. The work plans are required by the license and subject to public disclosure. http://www.michigan.gov/documents/deq/deq-whm-hwp-dow-SOW-NOD-SRB-8-29-07_207101_7.pdf
These are just a few items of many. The end does not justify the means. Setting up a process that deliberately excludes the public in order to expedite the process, protect the polluter, placate politicians, cloak the controversy or any other farcical reason is a slap in the face to the democratic process and the people of this watershed. Regardless of how anyone feels about this contamination every citizen is entitled to all the information. Citizens without access to information cannot affect change or outcome let alone participate on a level-playing field.
Early on Lone Tree Council and TRW objected to the confidentiality clause of the NRDA. It has fallen on deaf ears.
Michelle Hurd Riddick
Lone Tree Council
"We have finally come to understand that the real wealth of a nation is its air, water, soil, forest, rivers, lakes, oceans, scenic beauty, wildlife habitats and biodiversity. Take this resource away, and all that is left is a wasteland. That's the whole economy."
............................................................................. Gaylord Nelson
Source: Lone Tree Council / TRW
For additional articles like this one, go to the Tittabawassee River Watch web site www.trwnews.net. for complete coverage of the Tittabawassee River Dow Chemical dioxin contamination saga.. The source organization's web site link is listed above. The Newspaper / Media page of our site contains an extensive archive of media articles dating back to January 2002. The Newspaper / Media page may be accessed by scrolling down to the bottom of the CONTENTS section and clicking on the Newspaper/Media link.