'Facility' redefined by DEQ

Kathie Marchlewski, Midland Daily News 07/19/2005


Most of Midland's residents are exempt from the feared dioxin-related "facility" designation -- for now. A subtle change to Michigan Department of Environmental Quality policy more clearly defines the term and applies it only to those properties -- 103 in Midland and about 400 in the Tittabawassee River floodplain -- that have been deemed "Priority 1" areas and are undergoing interim remediation activities.

A clarification of the "facility" term, finalized by the DEQ but criticized by Midland leaders, is in part a response to lawmaker initiatives and to property owner reactions to the designation. In 2003, the DEQ mailed brochures explaining the implications of contamination to 2,000 homes along the Tittabawassee River flood plain. In 2004, The City of Midland told citizens that, based on previous testing and air dispersion expectations, as many as 9,000 homes could be facilities based on suspicion they have contamination levels higher than the state's 90 parts per trillion residential contact criteria.

Once a property is included in the facility classification, its owners must disclose the information to potential buyers and must limit movement or disturbance of contaminated soil.

DEQ Director Steven Chester said he believes additions to Part 201 of the Natural Resources and Environmental Protection Act have been well received, and should address concerns about which properties are and are not included in the state facility designation: Those that already are identified as contaminated and are a part of cleanup plans are included. For others, testing must have confirmed contamination or enough data must exist to make a reasonable inference about the extent of contamination.

"The guidance makes it clear. You have to have actual data." said Frank Ruswick, special assistant to Chester. "The only property that we're talking about are the Priority 1 areas identified in the Dow work plan."

That plan, a framework to a future, comprehensive dioxin remediation agreement, was announced in January and includes a requirement that Dow propose by year-end how it will proceed with further work plans. Part of that task includes coming up with a way to determine the scope of contamination. Further testing might be necessary to fulfill that requirement, and additional data yielded by testing could widen the span of the facility designation, reopening the problem for Midlanders.

That's what worries Midland Mayor R. Drummond Black. "This action means that the DEQ is already making assumptions about properties again, with no property-specific testing," he said of the inclusion of the 103 Midland properties.

He also isn't satisfied with the term "reasonable inference."

"(It) is a catchall phrase that leaves wide open who determines 'reasonable,' and who makes the 'inference,'" Black said.

He is not reassured by the modification, and sees it as an attempt to sideswipe proposed legislation. "The DEQ policy revision has absolutely no statutory protection nor certainty for any Michigan resident," Black said. "There is nothing reassuring about an internal policy adjustment that can change with the stroke of a pen or the whim of a department director."

State Rep. John Moolenaar agrees, and sees legislation as the only vehicle for resolution. He successfully introduced a "Homeowner Fairness Act" in the State House of Representatives to ensure that before property is added to the state's "facility" roster, testing has confirmed contamination. The bill passed 77-29 in June with bipartisan support and is due to be considered in the Senate.

Chester said throughout the bill's move through legislature that he had hoped to address concerns internally, without a change in law. "Clearly we have some pretty significant concerns about the proposed legislation," he said.

The DEQ argued at House hearings on Moolenaar's bill that the proposal could slow the pace and increase the cost of cleanup statewide, and could limit possibilities of state and local financial incentives for redevelopment of brownfield sites. It also could release polluters from cleanup duties and expense, shifting the responsibility to property owners -- qualification as a facility is a prerequisite for landowners to receive relief.

While the bill's testing component is met in part by the DEQ's recent clarification -- as is a concern that entire properties, not just contaminated portions would be labeled -- the words "reasonable inference" are still too broad, Moolenaar said. "That is a gray area. What the DEQ deems reasonable is often not what Michigan residents deem reasonable," he said.

He also said a crucial element has been left out -- the consideration of exposure studies such as the one being conducted by the University of Michigan. "We spoke about this at the draft stage," Moolenaar said. "I specifically mentioned that the exposure studies are an important part of resolving this. Obviously the DEQ is not listening and the governor needs to engage in this issue."

The DEQ plans to introduce the clarification to communities at upcoming town hall-style meetings tentatively scheduled for Aug. 17, 24 and 27. Locations have not been confirmed.

©Midland Daily News 2005
 

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