Dioxin class decision due

Kathie Marchlewski, Midland Daily News 10/20/2005

After two and a half years in wait, residents of the Tittabawassee River flood plain and The Dow Chemical Co. are likely to find out Friday just how big local courts believe the lawsuit over dioxin contamination should be.

The question -- should the suit include all residents of the flood plain, an estimated 2,000, or should it be limited to those already signed on and pursuing the matter, about 170?

Saginaw County Circuit Court Judge Leopold Borrello is scheduled at 11 a.m. to issue his decision on class certification for the suit. He warns, however, that whatever he decides likely will be appealed. That means a final determination on the number of litigants could be far off.

In preparation for Borrello's decision, Dow and plaintiffs have been arguing about how similar -- or dissimilar -- the claims in the case are. Plaintiffs say that all residents of the Tittabawassee have been plagued by the same problem -- that the Michigan Department of Environmental Quality has warned them that their property is contaminated with dioxin, and that because of it, their homes have lost value.

Dow attorneys argue that the MDEQ has revised its opinion about contamination of the floodplain, and considers properties contaminated only on a case-by-case basis -- therefore any claims should be considered by courts individually. Attorneys say that because levels of dioxin contamination vary, so does the potential effect, if any, on property owners.

The disagreement about where and which properties on the 100-year flood plain are contaminated is one not easily solved by DEQ clarification. The department has issued documents that could be interpreted to support both Dow and plaintiffs' arguments.

In July, DEQ Director Steven Chester clarified the department's position on the scope of dioxin contamination, and its method for defining contaminated properties.

In a Forum piece published in the Daily News, he explained that properties within the river's floodplain are expected to have levels of dioxin higher than the state's residential contact criteria based on existing data.

"(Some) would contend that sampling must be done on a parcel-by-parcel basis in order to understand the extent of contamination," Chester wrote.

Dow attorneys, however, point to another DEQ publication sent to property owners in July, this one in a question-and-answer format. The DEQ wrote: "The process of making inferences from available data is part of the evaluation of every facility, although the factors that are considered vary from case to case.

"In this case," the mailing states, "the DEQ has determined that there is a predictable pattern of dioxin contamination in the floodplain based on flooding ... land in the 100-year floodplain downstream of the City of Midland is likely to have dioxin concentrations exceeding residential cleanup criteria if it is repeatedly flooded by the Tittabawassee River ... It is important to note that not all land in the 100-year floodplain is repeatedly flooded."

But the case-by-case basis the DEQ refers to in its mailing is not property-specific, DEQ spokesman Bob McCann said. Not every property targeted for immediate cleanup has been tested.

After hearing arguments from Dow and plaintiffs in September, Borrello said he expects that whatever he decides will be appealed to a higher court.

©Midland Daily News 2005
 

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