Lone Tree Council and TRW Dioxin Update
September 20 , 2005 # 50
2005 Spent talking about public involvement
The end of summer brings with it the end of the ongoing DEQ- Dow
public meetings to talk about public involvement. Residents of the Saginaw Bay
Watershed have been invited to dozens of meetings to discuss, debate and wrangle
over a " public participation process". The results of these meetings has been a
resounding rejection of the DOW DEQ Community Advisory Council model; a select
group of 20 or so people chosen by another group of people. Essentially a
committee to select a committee. Time and again, Dow and DEQ have been told that
the communities favor a town hall forum. I think it fair to suggest that Dow and
DEQ wanted badly to avoid a town hall format on this very contentious issue of
Dow's dioxin contamination of Michigan's largest watershed. I would further
suggest the residents of the watershed have spoken and DEQ has a responsibility
to abide by our wishes. Dow's John Musser voiced concern that town hall meetings
can get out of control. Hand picked community panels are a staple of the Dow
public relations strategy because it allows Dow to co-op community leaders and
frame their issue. It is no secret that Dow's lobbyist and paid consultants do
not want any semblance of a town hall format. What Mr. Musser is really worried
about is a format which Dow cannot control. A format where there is a free
exchange and an expectation of being held accountable for the truth and for
substantive details. There is nothing more democratic than a town hall forum and
we should all rejoice in the resounding public support for future meetings using
this forum. It will most interesting to see what DEQ and Dow propose next.
The final report, the Tittabawassee River Fish Consumption
Health Consultation, was released last month by ATSDR and MDCH.
Carp, catfish and white bass in the Tittabawassee River contain high levels of dioxin and should not be eaten, according to the Michigan Department of Community Health. Women of childbearing age and children under the age of 15 years old are advised not to eat smallmouth bass but others can eat smallmouth bass once a week, the department said last week. Walleye, which travel from Lake Huron through the Saginaw River to reach the Tittabawassee, contain some of the lowest dioxin levels. Women and children can safely eat one monthly meal of walleye under 22 inches and six annual meals of walleye over 22 inches. Some news headlines stated walleye are "safe to eat".............but only if you're a man. You cannot, however, safely eat walleye if you're a woman of child bearing age or if you're a child. Now you know the rest of the story. If you have to count the length of the fish and the number of permitted meals a year THE FISH ARE NOT SAFE.
Zilwaukee Twp- Dioxin and the pending DMDF
To date two contested cases have been filed with the DEQ administrative law judge (ALJ) objecting to the dredged materials disposal facility ( DMDF) sited in Zilwaukee Twp. The first case filed by Lone Tree Council and the National Wildlife Federation and the second case filed by Zilwaukee Twp are still awaiting hearing dates before the ALJ.
Zilwaukee Twp legal arguments
In light of what is known about the project, as well as what is yet unknown about the project, there are significant foreseeable adverse effects associated with the proposed DMDF. Further, there are feasible and prudent alternatives to locating the disposal facility in the proposed location. Thus, DEQ cannot issue a wetlands/floodplain/inland streams permit for the proposed DMDF.
Specifically, the DEQ issuance of the permit violates the Michigan Environmental Protection Act (MCL 324.1705 because the proposed activity is likely to pollute, impair, or destroy natural resources or the public trust in such resources.
The issuance of the permit violates MCL 324.3104(1) because locating the disposal facility as proposed may impair the Saginaw River floodway.
The issuance of the permit violates MCL 324.108(1) because locating the disposal facility as proposed harmfully interferes with the stage characteristics of the Saginaw River.
The issuance of the permit violates MCL 324.30106 because the project will adversely affect the public trust and downgradient residential homes and properties.
The issuance of the permit violates DEQ Rule 281.814 because adverse impacts to the public trust, riparian rights, and the environment will be more than “minimal” and because there are feasible and prudent alternative disposal locations and/or methods available.
The issuance of the permit violates MCL 324.30311 because the disposal of the sediment in the DMDF as proposed is not in the public interest, it is not necessary to dispose of the sediment in the current location to realize the benefits derived from the dredging of the Saginaw River, and the project is not otherwise lawful because the relevant agencies have not conducted the necessary assessments imposed upon them by relevant and applicable law.
The issuance of the permit violates DEQ Rule 281.922a because Saginaw County has not demonstrated that there will be no disruption to aquatic resources resulting from the project, and that the DMDF is primarily dependent upon being located in the wetland or that there are no feasible and prudent alternatives to the proposed activity.
The proposed wetland mitigation project does not meet the requirements of DEQ Rule 281.925.
The issuance of the permit violates the Zilwaukee Township Zoning Ordinance effective August 14, 1984, such ordinance has been updated on several occasions and the Zilwaukee Township Planning Commission is diligently working to update the above mentioned zoning ordinance to comply with the most recently adopted Zilwaukee Township Community Master Plan adopted for 2003 through and inclusive of 2020. The above mentioned ordinance in section 1.2 states the fundamental purpose of the ordinance to promote and safeguard the public health, safety, morals, and general welfare of the people of Zilwaukee Township. Said permit violates the civil and environmental rights of Zilwaukee Township.
The issuance of the permit violates the Zilwaukee Township Community Master Plan of 2003 which clearly states the Township has no additional land available for use by the County of Saginaw, State of Michigan or any other exempt property owners. The Department of Natural Resources has previously obtained seventy-five percent of township property, with very little to spare for economic development in attempts of township administration and it’s citizens to maintain financial stability.
The issuance of the permit violates the rights the State of Michigan provides for Township administrative and fiscal sovereignty in accordance with the enabling enactment. State law authorizes townships to perform a wide variety of important functions including the Township Planning Act, as well as the Township Zoning Act, which gives townships broad powers to enact and enforce land use ordinances, while other Township enabling acts control activities that infringe on rights of residents and property owners.
The issuance of the permit violates the Township of Zilwaukees' right to regulate land uses within the boundaries; permit applications for such use have not been submitted and authorizations have not been issued for the use of the project suggested in the permit.
Finally, there are many legal issues to construct, maintain and treat a solid waste facility; however the proposed site seems to have no legal obligations to disposing of highly contaminated materials under such stringent legal restrictions.
Lone Tree Council and National Wildlife Federations Legal Arguments
a In authorizing the Corps to discharge pollutants from the DMDF to the Saginaw River, subject to effluent limitations, DEQ issued an NPDES permit, even though DEQ did not so label its action.
b. In issuing the Permit to the Corps, DEQ acted unlawfully
(1) DEQ established “no net addition limitations” for dioxins/furans, mercury, and PCBs that are effective after March 23, 2007, contrary to 40 C.F.R. § 132, Appendix F, Implementation Procedure 5.E.3.a., and the Clean Water Act, 33 U.S.C. § 1251 et seq.
(2) DEQ authorized the discharge for a fixed term of more than five years, contrary to Mich. Admin. Code (“MAC”) R § 323.2150, and the Clean Water Act, 33 U.S.C. § 1251 et seq.
c. DEQ’s issuance of a § 401 Certification was not necessary
or appropriate because no federal license or permit is required for the
Corps to proceed with the construction or operation of the DMDF.
d. In the alternative, if a § 401 Certification were necessary or appropriate, DEQ acted unlawfully in certifying that the DMDF will comply with § 401 of the Clean Water Act by allowing “no net addition limitations” for dioxins/furans, mercury, and PCBs that are effective after March 23, 2007, contrary to 40 C.F.R. § 132, Appendix F, Implementation Procedure 5.E.3.a., and the Clean Water Act, 33 U.S.C. § 1251 et seq.
The bottom line is this project has not been done correctly from day one and it is not acceptable. The Saginaw River and Bay will never come off the federal Area of Concern list so long as projects planned on the cheap are permitted to move forward. Too many folks insist this project is not about dioxin or environmental quality. They insist it is merely about dredging for navigational purposes. Their insistence may be convenient but it is none the less irresponsible. Just because it's a navigational dredge doesn't preclude doing it right! The dioxin levels in the dredged spoils rival any found along the Tittabawassee.
It is the presence of Dow Chemical's dioxin in the Saginaw River which make this site in a floodplain of Zilwaukee Twp so unsuitable. Putting contaminated sediments in a pit in a floodplain defies all science and logic. Yet, not one entity, agency or politician is willing to demand that it be done right. Their failure to hold Dow Chemical liable for their contamination and permitting this project to move forward "on the cheap" ( Army Corp of Engineers quote) is nothing but negligent. This issue isn't just about Zilwaukee Twp. This is a watershed issue because it will impact the entire ecosystem down river. This ill designed site will be a slurry pit of rotting, smelling organics to rival the odor nuisance of the sugar beet plants. Saginaw County taxpayers will own this site after 20 years; a site that has all the potential to be a huge liability and burden requiring cleanup by future generations. Why? Because of poor planning, an arrogant Army Corp of Engineers, politicized DEQ and lame leadership at all levels of government. We have a continuous river system running from Dow Chemical's plant in Midland down the Tittabawassee to Saginaw Bay. The failure to develop a coordinated plan for the entire watershed has been by design. It's just too politically uncomfortable to deal with Dow Chemical's responsibility. So Dow gets a free pass on the navigational channel even though the laws of Michigan hold them responsible. Politics trumps science to the determent of this great water resource and public health while elected officials look the other way. They deal behind closed doors or dance on the periphery, always non committal, so as to not offend Dow or the governor who has taken a personal hand in this matter.
The Zilwaukee site is the model for Dow. In the Framework Agreement signed by the state and Dow ( after 8 months of closed door meetings) Dow was assured they could use a site comparable to the one in Zilwaukee: "The parties understand and agree that Dow may propose dredged material disposal options other than disposal in a Type II landfill, such as an engineered disposal facility similar to confined disposal facilities used by the U.S. Army Corps of Engineers to contain dredged materials. Any disposal facility used by Dow must be operated and maintained in accordance with applicable law." " In accordance with applicable law." Why? Saginaw County hasn't had to follow the law. The Corp of Engineers hasn't followed the law. To date we have no reason to believe Dow will be made to do so. None of us will ever know what conversations took place between Dow and the state of Michigan for eight months but you can rest assured that is was by design that the navigational channel of the upper Saginaw River was deliberately omitted from an already heedless Framework. In 2000 I chaired the Saginaw County solid waste planning committee and I can assure you that we have stricter standards for the disposal of household trash than the Corp of Engineers has for this heavily dioxin contaminated sediment that will be tossed in the backyards of Zilwaukee Twp. If this project is not done correctly, in accordance with the law, then Dow Chemical doesn't have to do it correctly when they began cleanup along the rivers ( if ever) . A huge Pandora's box has been opened up as a result of the Framework. No public good ever comes out of secret negotiations between the state and the polluter.
If this project doesn't get off the ground the blame rests entirely with Saginaw County, the Corp of Engineers and the State of Michigan. No one is above the law. Not Dow Chemical and not the Army Corp of Engineers. The failure at all levels to bring everyone to the table for a coordinated long term plan for this watershed is pathetic. We will be leaving a legacy no one will be proud of. The entrenched arrogance and turf mentality prevent the many principles from engaging in long term planning to the benefit of commerce, recreation and resource protection and restoration. The courts provide us the opportunity to break through the bureaucracy and layers of politics and regulators who cannot think out of their regulatory boxes.
We'll keep you posted.
Michelle Hurd Riddick
Lone Tree Council
Source: Lone Tree Council and 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.