River Watch www.trwnews.net
The 2004 spring flood event on the Tittabawassee has receded. Photo's taken 3 weeks later reveal a significant deposit of new soil in a residents backyard. Click here to view images during and after the flood .
reschedules Class Certification hearing for June 9, 2004 which had been previously set for
April 6, 2004. The Judge made the decision to give both sides time depose expert
affidavits included in their Class Certification briefs. According
to Plaintiff attorneys, it is unnecessary under Michigan law for Court's to resort
to the "battle of the expert" approach favored by Dow to decide the class
certification issue. Dow is
attempting to go around these principles to defeat class certification by arguing the
merits of its case through various experts before Class status is determined.
Determining the "merits" of a case is done during the actual trial by a Jury,
not before the case is certified as a class action. Plaintiffs where forced into a
position by Dow's actions to choose between:
Dow and it's fellow accomplices in the chemical industry often site misinformation about their chemicals and the human health effects that they cause. The Coming Clean organization, www.come-clean.org, offers some detailed and referenced scientific facts on the issues. The 10 points below are listed on their site as reasons to join the group, however the information is useful to everyone interested in cutting through the hype. The Come-Clean web site also contains useful information about, chemical body burden's, steps to clean up a community, and more.
To counter all the recent misinformation being feed the local community, the following is a summary of dioxins effects on human health as presented on the Coming Clean sites Body Burden Dioxin Case study page.
Exposure to dioxin can lead to a wide array of adverse health effects including cancer, birth defects, diabetes, learning and developmental delays, endometriosis, and immune system abnormalities.
Dioxin is a known carcinogen. IARC, the International Agency for Research on Cancer, which is part of the World Health Organization, classified it as a known human carcinogen in 1997. In January 2001, the Department of Health and Human Services' National Toxicology Program classified dioxin as a known human carcinogen. The September 2000 draft of the U.S. EPA's Health Assessment document on dioxin also classifies dioxin as a known human carcinogen. In that same report, the U.S. EPA projected an excess cancer risk of one in 100 for the most sensitive people who consume a diet high in animal fats. In other words, the risk of getting cancer from dioxin--over and above the risk of cancer from other sourcesis one in 100 for some people. This is a worst-case scenario. It's for the most sensitive people among the five percent of the population who consume the most dioxin. For the average person, EPA estimates a risk level of one in 1,000, which is also a serious risk level. The EPAs generally "acceptable" risk level is one-in-one-million.
Dioxin also causes a wide range of non-cancer effects including reproductive, developmental, immunological, and endocrine effects in both animals and humans. Animal studies show that dioxin exposure is associated with endometriosis, decreased fertility, inability to carry pregnancies to term, lowered testosterone levels, decreased sperm counts, birth defects, and learning disabilities. In children, dioxin exposure has been associated with IQ deficits, delays in psychomotor and neurodevelopment, and altered behavior including hyperactivity. Studies in workers have found lowered testosterone levels, decreased testes size, and birth defects in offspring of Vietnam veterans exposed to Agent Orange.
Effects on the immune system appear to be among the most sensitive endpoints studied. Animal studies show that dioxin decreased immune response and increased susceptibility to infectious disease. In human studies, dioxin was associated with immune system depression and alterations in immune status leading to increased infections. Dioxin can also disrupt the normal function of hormoneschemical messengers that the body uses for growth and regulation. Dioxin interferes with thyroid levels in infants and adults, alters glucose tolerance, and has been linked to diabetes.
For more about dioxins effects on human health, see our Dioxin Dangers page
With 4 hours notice, hearing changed from 3/29 to 3/24/04. Dow requested that the Order of Court of March 3, 2004 requiring the 164 individual plaintiffs to provide written certification regarding production of documents be enforced immediately . Dow also asked to depose expert's cited in Plaintiff's brief of 3/19. Plaintiff attorney offered to remove expert affidavits from Class-Certification brief as they where added in response to Dow putting them in their brief of 2/27/04. Plaintiff attorney states that affidavits such as these are not relevant to Class-Certification. No one disputes Dow's (or Plaintiff's ) right to depose expert witnesses, just not at this juncture. After a heated debate, Judge Borrello stated he will rule on the matter next week. However, he was adamant that whatever is done will not delay the class-certification hearing scheduled for 4/6/04.
"Dow Chemical's claim that it has never tried to skirt the dioxin issue
The above is from an excerpt from a Saginaw News editoral written by Michelle Hurd Riddick of the Lone Tree Council, click here to view the entire article.
Below is the Plaintiff Brief's Introduction:
"This lawsuit was filed on March 25, 2003. Plaintiffs moved for class certification on June 23, 2003. Eight months later, on February 27, 2004, Dow Chemical Company ("Dow") filed its opposition to class certification. Dows opposition brief impermissibly invites this Court to look well beyond the pleadings and evaluate numerous pages of merits-based contentions and purported expert affidavit testimony that have little or no relevancy to class certification. In addition to being irrelevant for class certification, much of this evidence is directly refuted by Plaintiffs rebuttal expert testimony, pronouncements by the Michigan Department of Environmental Quality ("MDEQ") and other relevant evidence. Dows legal arguments fare no better than its attempt to mischaracterize the controlling factual record relevant at the certification stage. In point after point, Dow overstates and overcomplicates, apparently hoping that the Court will not see through to what are straightforward claims based on a common set of facts and legal theories that are ideally suited for class action treatment under MCR 3.501. The inescapable conclusion for this Court is that certification of this case is both necessary and appropriate."
for a few excerpts from the Brief, or go to the Court Activity
page for additional information.
Back in the year 2000: WASHINGTON (AP) - The government and manufacturers agreed Thursday to phase out use of one of the most widely applied pesticides because of concern that it poses health risks to children in homes, schools and parks. Still, the product may remain on store shelves until the end of 2001, prompting complaints from some health advocates.
The Environmental Protection Agency announced it was banning the use of the pesticide chlorphyrifos - commonly sold under the trade Names Dursban and Lorsban - for virtually all nonagricultural uses and curtailing its application on some crops, including apples, frequently eaten by children.
For more on the Dursban issue, including New Yorks suit against Dow for false advertising that Dursban is safe, click here.
March 2004:Dow paid $2 million in the NY lawsuit for illegal safety claims on chlorpyrifos this study "covers" them on the manufacturing side check out the authors, one of them is Dr. Garabrant
"Chronic chlorpyrifos exposure during the manufacturing process sufficient to produce biological effects on BuChE activity was not associated with clinically evident or subclinical peripheral neuropathy at baseline or with measurable deterioration among chlorpyrifos subjects compared to referents after one year of additional exposure." Occup Environ Med. 2004 Mar;61(3):201-11. Click here for the abstract.
03/17/04 Tittabawassee Township accepts $40,000 Dow Foundation Grant
The suburb has received a $40,000 grant from the Midland based Dow Foundation to build a new playground in Tittabawassee Township Park. Source: Saginaw News, Community News section 3/16/04
The Ecology Center and Lone Tree Council have submitted comments on the University of Michigan's "Michigan Dioxin Exposure Study". Dow and U of M have provided little information on the "study" and refused to provided details when asked by the MDEQ , ATSDR, Ecology Center, and Lone Tree Council representatives. What's the secret? Their refusal to share indicates the study is flawed before it gets off the ground. The public deserves answers to all the questions raised below. Anything less is unacceptable.
Email cover letter to Dr. David Garabrant and Dioxin Exposure Investigation Research Team 3/11/04
Click here for the details of Ecology Center/Lone Tree letter to Dr. Garabrant.
03/16/04 MDEQ / ATSDR comment on Dow sponsored U of M "study"
The MDEQ and ATSDR are proposing changes to the University of Michigan's "Michigan Dioxin Exposure Study". Dow is funding the study in an attempt to legitimatize a self-serving corporate science project to confuse the public and divert attention the real science being conducted by the MDCH Pilot Exposure study. We have real concerns about Dr. David Garabrant's neutrality due to his connections to prior Dow projects. Hopefully Dow will abide by the MDEQ/ATSDR comments and modify their study as specified. The proposed changes are as follows:
Click here for the details fo the MDEQ / ATSDR proposal.
03/16/04 MDEQ releases Tittabawassee River dioxin bulletin #4.
A must read! Topics include:
Click here to view the entire document.
03/06/04 Tittabawassee River flooding crests tonight, floodplain dioxin redistributed.
Darrel and Martha Stimpson look at the Tittabawassee
Photo by Midland Daily News/LORI DUFF
Michelle Hurd Riddick of the Lone Tree Council tours the flood plain. Normal river channel is on the other side of the line of trees in the distant background. Photo below is the same property in it's unflooded state:
Above: Flood debris: What is it? Any dioxin in it? Where will it land? Who get's it next? For many other photos of the 2004 flood click here.
03/04/04 Dow spew's misinformation at local Chamber of Commerce meeting
Today, Dow's VP Susan Carrington, spoke at the Saginaw Chamber of Commerce meeting to 200 who's-who of the community. A flood plain resident attending the meeting reports she made an extremely biased presentation full of misinformation. Carrington also made veiled threats to our economy by mentioning the pending dioxin lawsuit and the $922 million Dow allegedly provides to our economy in the same speech. She went on to state dioxin is harmless and of such low values it is doubtful they would cause harm. Below is a report from a flood plain resident who attended the meeting:
Carrington told the community that the dioxin really was not an issue, and
Hopefully, community leaders are not buying Dow's comments as fact. MDEQ dioxin testing of 22 random flood plain resident properties indicate 77% are contaminated, some with surface levels (1") as high as 2,640 ppt TEQ. This is almost 3 times higher than the ATSDR "action level" and 29 times higher than the State's mandated cleanup level of 90 ppt TEQ.
The State's 90 ppt TEQ RDCC is THE LAW, not an arbritary number. It is based on the same type of careful analysis used by States toxicologist to establish limits for Mercury and Lead. No one is debating Mercury and Lead criteria. Why is dioxin being singled out by Dow for special treatment? The States RDCC's for lead, mercury and dioxin are intended to PREVENT disease. The ATSDR dioxin "Action level" is an arbritary number developed in a shroud of political influence and chemical industry lobbying [more].
Dioxin is one of the most researched chemicals on the planet. Scientist in the MDCH, MDEQ, EPA, WHO and thousand's of other's consider dioxin an extremely toxic group of chemicals, especially to a fetus and/or young children. Dow's constant downplay of dioxin's toxicity is a threat to our community and demonstrates their total lack of conscience, promoting profits over the lives and properties of the people who live downstream of their facility.
Community leaders should act in the best interest the people they represent. Conduct independent research into the issue using sources other than Dow sponsored "science". Pick up the phone and talk to a toxicologist at the MDCH. Please, do not let Dow influence cloud your judgement, especially when acting upon the issues related to the wellbeing of our community. Take a stand and do what's right: tell Dow to clean the mess up.
03/04/04 Judge denies Dow's request to certify receipt of plaintiff document's
Judge Borrello denies Dow's motion to force plaintiff attorneys to certify they have produced all plaintiff document's. The Judges order specifies they certify only those in their possession.
"We cannot possibly make a statement under oath that we have produced all documents when there may be documents we have no knowledge of," said Bruce Trogan, an attorney for the residents.
02/26/04 Official MDEQ Phase 3 results
February 2004 Preliminary Residential Dioxin/Furan Soil Sampling Results of 22 Residential properties in Saginaw County
02/23/04 MDEQ Phase 3 residence dioxin test results in: 77% tested properties contaminated
Residents participating in the MDEQ
Phase 3 dioxin sampling study recently received the "draft" results. The
study was conducted on 22 Saginaw County residential properties in the Tittabawassee River
100 year floodplain between June and December of 2003. The official results will be
published publicly in the near future.
The tables below summarizes the findings. Table created by TRW based on draft MDEQ results.
An important footnote: The MDEQ has performed a few random samplings from a few locations on a few properties due to the high cost of sampling. Over time, flood plain soil moves around due to floods, wind, erosion, etc.. A dioxin level posted for a residence does not indicate the lowest or the highest contamination that may be on a property, a sample taken a small distance away may be higher or lower. Unless every square foot of the property is tested every year, we will never know the true extent.
Of special note: The MDEQ sampling was taken randomly from within a property boundary. From what we understand of the process, they picked sites that had characteristics suggesting contamination might be present. However, they also picked sites where they expected to find low or "normal" levels. This might explain why "only" 40% of samples exceeded 90 ppt TEQ. Had they focused solely on suspected "hot spots", we suspect the percent of contaminated samples would have been much higher.
In TRW's opinion, the random sampling of 22 properties (out of ~2000) suggests the dioxin is everywhere in the flood plain at levels well beyond the States 90 ppt TEQ, including surface levels. If you live in the 100 year flood plain, assume your property is contaminated, possibly with very high levels. Take precautions immedately.
>>> Click here for additional Phase 3 details including dixoin levels by depth and residence.
02/23/04 TRW / Lone Tree Dioxin Update
Click here for all the details, Topics include
02/19/04 More residence dioxin test results: 5,600 ppt TEQ
Another MDEQ verbal dioxin contamination report to a resident on River Road: 5,600 ppt TEQ. That's over 62 times the state RDCC safe/cleanup level of 90 ppt. The MDEQ says residential sampling results data will be sent to the property owners tomorrow and should be sent out to the CAP, the media, and put on their website next week. We will post on www.trwnews.net as well.
An important footnote: The MDEQ is performing a few random samplings from a few locations on a few properties due to the high cost of sampling. Over time, flood plain soil moves around due to floods, wind, erosion, etc.. A dioxin level posted for a residence does not indicate the lowest or the highest contamination that may be on a property, a sample taken a small distance away may be higher or lower. Unless every square foot of the property is tested every year, we will never know the true extent. Extensive testing such as this is unlikely because of the cost (estimated 16,000 acres @ $1,000 per sample). In our opinion, the few, but alarmingly high results received so far seem to confirm the MDEQ's original assumption as they stated in a public meeting on 10/3/02: "if you have had flooding from the Tittabawassee, you have contamination. Testing is not really necessary and you must begin to use the precautions to avoid exposure".
Unfortunately for us, the scope of the contaminiation has expanded beyond the floodplain. A surface sample by the back door of a home on Midland Rd. had a value of 242 ppt TEQ. This area is well outside the 1986 flood range and is almost 3 times the States RDCC of 90 ppt TEQ.
We appreciate the MDEQ & MDCH latest efforts, their limited staff and budget are producing valuable information to the families living along the Tittabawassee. All the Dow Chemical company seems to produce is pollution, talk, delays, and confusion. Click here for recommended precautions. Dow, CLEAN IT UP NOW!
02/19/04 Dioxin testing of residence in floodplain reveals 1,100 PPT at back door!
The MDEQ verbally released dioxin test results to a local resident who lives on the river.
"The back part of my yard approx. 400 ppt, upper middle part 5ppt (fill area
from septic), by the
The MDEQ has tested a number of properties in the flood plain during the last 7 months (Phase 3?), official results will be published in the near future. Maximum State Residential Direct Contact Criteria (RDCC) is 90 ppt TEQ. This residence has dioxin levels over 12 times what is considered safe by the State of Michigan. This level even exceeds the ATSDR's 1,000 ppt Action Level. It also exceeds the preposterous level of 831 ppt Dow & the old MDEQ administration proposed in it's scientifically flawed attempt to raise the RDCC in December 2002.
For those new to the 831 ppt issue, check out the news stories back in the fall of 2002. They are an excellent primer for understanding what Dow is currently attempting to do with all of it's current "studies".
Rumor has it Dow subpoenaed the MDEQ for the raw data of these test results weeks ago. Residents are still waiting for Dow to "do great things".
02/18/04 Family Practice Grand Rounds: Dioxin: Toxicity & Health Effects
Presented by : Suzanne White, MD, Childrens Hospital of Michigan Regional Poison Control Center, Detroit Medical Center-Wayne State University.See Meeting page for details
UPDATE: For reasons unknown, Dr. White did not arrive for her
presentation, rumor has it attempts will be made to reschedule.
Consider the source: Mutually beneficial collaborations between U of M and Dow
For those attending Dr Garabrant's mis-information meetings next week, consider the following:
If you attend the Dow sponsored meetings, insist Dr. Garabrant disclose all of his past relationships with Dow Chemical Company and other corporations. In his defense, the man has got to eat. Unfortunately for us, he knows who butters his bread.
Money talks. Dow's Knowledge Factories, an article by Brian McKenna of the Ecology Center, reviews 80+ years of Dow influence on our state Universities. ..."Can we trust Dow-endowed universities and colleges in Michigan to produce good science (science in the public interest, not skewed to corporate profits) when it comes to Dow Chemical?"... Click here to review the article (an excerpt from the Jan/Feb 2004 Ecology Center publication, "From the Ground Up").
On January 30, 2004, Dow published a press
release stating they will provide a grant to the University of Michigan to design a
study to determine the typical blood level of dioxin in residents of Saginaw and Midland
The problem is this: non-floodplain residents of Saginaw and Midland Counties may be contaminated as a result of dioxin exposure as well. For decades, Tittabawassee floodplain soils may have been used all over the area for fill dirt and landscaping. In addition, airborne contaminants and fish/wildgame consumption may increase local residents dioxin exposure. Saginaw and Midland counties are not a good choice for a "control community with no known exposure" to dioxins and furans.
How much dioxin is "normal" in the general population? Considerable reasearch exists, Listen to Dr. Linda Birnbaum of the EPA discuss current levels of human dioxin exposure, click here
Hopefully, the ATSDR and MDCH will review the Dow study protocol and clearly indicate what is or is not "complimenting" the MDCH PEI. Until more is know about the study and it's contractor, Dr. David Garabrant, we remain skeptical of Dow's motives in funding this "study". Why? Click here
Documents uncovered by the Environmental Health Fund, using the Freedom of Information Act, showed the U.S. State and Commerce departments, Environmental Protection Agency and office of the U.S. Trade Representative, formed an alliance with Dow Chemical Co. and others to ward off regulations they feared would raise the cost of doing business in Europe. Click here for details. For additional information on Dow's efforts to manipulate chemical policy, click here.
On January 26, 2004, the MDEQ sent Dow Chemical Company a letter approving an extension until February 17, 2004 to respond to the Notice of Deficiency (NOD) on the Remedial Investigation Scopes of Work for Midland Area Soils and the Tittabawassee River and Floodplain. Please note that the letter contains a typographical error near the end of the second paragraph. The word "compromise" should have been "comprise". DEQ staff are meeting with Dow, at their request, over the next two weeks regarding the four issues listed in the letter. Additional meetings will be scheduled prior to February 17, 2004, if needed, to resolve any other outstanding issues. These meetings are intended to assist Dow in providing an adequate response to the NOD and to result in the submittal of SOWs that are as complete as possible prior to the DEQ's final review and approval, or approval with modifications.
The issues at hand:
1. Interim Response Activities (IRA) Work Plan for
sampling/characterization of Midland Area Soils
Judge Borrello denied Dow's request for additional depositions as he feels they are unnecessary for Class Certification. The Class Action Certification hearing has been pushed back again due to a few plaintiff's slow response in producing documents. The new court date is April 6, 2004.
The MDCH has published information describing it's Pilot Exposure Investigation (PIE). The purpose of the study is to provide information on the levels of dioxins in soil, indoor dust, and blood samples for 25 adult residents of the Tittabawassee River flood plain. The PEI will also provide information on how to conduct a future exposure investigation that could include several hundred people from the city of Midalnd, the Tittabawassee River flood plain, and a comparison community.
The Mackinaw Center for Public Policy has hired Russ Harding, former
Mr. Harding has a history with the Tittabawassee River, click on the links below:
Many other articles concerning Hardings past performance may be found by using the "Search TRW Site" link at the top of the Contents panel to your left. Just type in Harding.
The issue at hand is Class Certification: do the plaintiff's have a commonality in their complaint that warrants certification as a Class Action lawsuit. Today's "Emergency Motion" is just one of many "Motions" Dow has filed to delay the certification and divert the publics attention from the truth. Their plain is obvious: conduct a PR blitz to cast suspicion on the plaintiff's as if they are the ones on trial. Whether a plaintiff deleted a personal email from the past or failed to produce a public document is not relevant to Class Certification.
The crux of the matter is simple: The state of Michigan has proclaimed all properties in the 22 miles of frequently flooded Tittabawassee Flood Plain a Hazardous Waste "Facility" due to dioxin contamination released by the Dow Chemical Company. What could be more "common"?
"...If school events are held in these areas, care should be taken to minimize students exposure to the contaminated soils. For example, hand washing stations have been installed in floodplain parks. Students should be encouraged to wash their hands after soil exposure, particularly before eating meals or snacks. Care must also be taken not to disturb wood chips or other barriers anticipated to be installed in the future to minimize exposure to bare soils. Events with high attendance are of special concern because exposure barriers are more likely to be disturbed when large numbers of people are present. The DEQ and the DCH also recommend that schools avoid activities such as science experiments requiring students to make direct contact with Tittabawassee River sediments downstream of Midland. ..."
Tittabawassee River Watch has a new web site address: www.trwnews.net.