Kathie Marchlewski, Midland Daily News 04/09/2005

Local legislators plan to introduce legislation next week that changes the process of designating properties contaminated by dioxin as "facilities."

State Rep. John Moolenaar, R-Midland, and State Sen. Mike Goschka, R-Brant, recently have heard concerns from residents and public officials that some issues are not addressed in the dioxin framework agreement between The Dow Chemical Co. and Michigan Department of Environmental Quality.

The "facility" designation and its stigma potentially reduces property values by requiring owners to disclose contamination information to potential buyers. It also limits activities on property by preventing owners from moving or disturbing contaminated soil.

Moolenaar twice has proposed legislation to remove the label from properties that might have dioxin contamination levels that would warrant the designation. He backed off the proposals when Dow and the DEQ began negotiations and hoped the issue would resolve itself. It has not.

"There has been tremendous confusion in mid-Michigan regarding this facility designation that we hoped would be cleared up by this time," Moolenaar said.

His proposal would not lift the requirement that property owners disclose contamination information. "They are required to disclose that as part of real estate law," he said.

What it would do is keep the label from being attached to properties not tested for precise levels of contamination.

It also would require the state level linked to the label, currently 90 parts per trillion but under review, be based on a combination of scientific studies, namely a human dioxin exposure study being conducted by the University of Michigan and a bioavailability study being conducted by the University of Missouri.

Local officials, including Mayor R. Drummond Black, have expressed concern that the University of Michigan study will not be given ample consideration in the DEQ's re-examination of its residential direct contract criteria. The new law, if passed as Moolenaar and Goschka propose, would require it.

The DEQ acknowledges the facility issue is not addressed in the framework agreement. "It's not a comprehensive document," said spokesman Bob McCann. Further, it's not the department or Dow's issue to decide. DEQ Director Steve Chester has said repeatedly the facility issue must be addressed through legislation.

"We've never labeled anything a facility," McCann said. "We can't do that. It's done by state law."

The law was put into place in the mid-1990s to stimulate brownfield development. Its purpose was to require the party responsible for contamination to take responsibility for it. That hasn't changed.

The DEQ can't remove the designation, Chester has said, and property owners aren't required to pay for clean-up that would remove it -- Dow is. "It's a process the liable party has to go through -- provide data that shows that remediation was completed," Chester said.

©Midland Daily News 2005

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