Monday, October 28, 2002

Dow Pursues Deal With Michigan For Relaxed Dioxin Standards In Midland

Dow Chemical is negotiating an agreement with the Michigan Department of Environmental Quality (DEQ) that could allow dioxin contamination near the company's headquarters to exceed state limits, in exchange for a comprehensive study on the health impacts to area residents. Industry officials argue that the health study could be useful in demonstrating the relevance of national risk reviews to site-specific data on cleaning up dioxin pollution.

But staff for Michigan attorney general Jennifer Granholm, who is running for governor in next week's election, have argued that such an agreement would violate state law, while environmentalists charge that the agreement would represent a "sweetheart deal" by allowing Dow to skirt existing cleanup requirements.

State toxicologists have found dioxin contamination in soil near the Dow facility in Midland, MI, and additional contamination as far as 22 miles downstream in the Tittabawassee River. Local environmentalists petitioned last year for a health consultation by the federal Agency for Toxic Substances and Disease Registry (ATSDR), and the agency released two draft reports in March recommending additional sampling and studies of impacts on the health of local residents (see related story).

Noting the likely extent of the pollution, one environmentalist says that "the only thing that might be parallel is the Hudson River and contamination from [General Electric]," which has prompted one of the nation's largest cleanup efforts under EPA's Superfund program.

Dow is now pursuing a consent order with the DEQ that would set an interim standard for dioxin in soil at 1,000 parts per trillion (ppt), and would apply only within the city of Midland, according to documents obtained by environmentalists. This would constitute a "site-specific" level that is well above the statewide standard of 90 ppt.

State regulators have also discussed adjusting that number after using a "probabilistic risk assessment" to determine how much of the contamination makes its way into the soil and into the bloodstream of Midland residents.

Dow has proposed an academic study that would take an in-depth look at the health impact on Midland residents exposed to dioxin. The five-year study would be funded by Dow but conducted by independent researchers, with the extensive participation of state and federal officials and environmentalists. Basic parameters of this long-term health study have already been released for public comment.

A Dow official argues that site-specific risk assessments are the best way to measure the appropriate local cleanup levels. Dow hired consultants earlier this year to conduct an assessment of how much people in Midland are exposed to dioxin, and the research suggested that the actual risk to the residents did not support the 90 ppt cleanup level.

The official adds that a broader health study would give a definitive answer on the risks of Midland residents to dioxin, and provide more specific information than general risk assessments, such as the dioxin reassessment that has long been awaited for release from EPA.

"I'm sure EPA would agree that if you had real data on a real population, that would be the gold standard," the source says.

But the attorney general's office has sent a series of letters to DEQ officials arguing that "the very essence of the proposed [consent] order is illegal." In particular, the attorney general staffers noted a provision that apparently would have relieved Dow from liability on any on cleanup requirements beyond the provisions in the consent decree. The letters also said that the decree would have "arbitrarily" set action levels for dioxin at the Midland site that were greater than those in the state as a whole.

The letters also accuse Dow of political motivations in trying to establish a consent decree before a possible change in administration after this November's election, when Granholm could become Michigan's new governor.

"You should be aware that Dow's own counsel has told us that … depending upon the results of the November gubernatorial election, future DEQ management may not be as receptive as the present administration to Dow's 'scientific' and regulatory arguments," wrote Robert Reichel, a staffer in the attorney general's office, in an Oct. 11 e-mail. "Obviously, such political considerations and speculation have no place in our legal analysis, but you should be aware of the factual background against which DEQ's actions in this matter may be judged by others."

But DEQ Director Russ Harding said in an interview that the attorney general's office was itself politically motivated in its criticism, and that DEQ does not necessarily agree with all of the legal arguments put forward. Harding says that the DEQ may hire independent legal council to pursue the matter, and may also file an ethics charge with the state bar because the confidential e-mails were somehow released to the public.

"Because of the political situation that's going on, it's very difficult for us to secure a good, unbiased legal opinion from the attorney general's office," Harding said. But he acknowledged that they would prefer to reach an agreement with Dow on the dioxin contamination prior to the possible change in administration.

"Frankly, Dow would like to get this done with our administration here; the statements that the attorney general made in this campaign scare 'em to death," he said.

Harding said that while 90 ppt is a "screening level" for dioxin in the state, "we are allowed our ability to tailor to site-specific risk." The proposed consent order asks the DEQ to consult "leading professionals" to come up with a number appropriate to the site.

While admitting that DEQ could require Dow to clean up the dioxin at the state level of 90 ppt, Harding said "that would be a huge expense for them for what they think is not money well-spent."

A spokesperson for the DEQ says the consent orders are "one of the primary ways to resolve environmental cleanups" and that there is nothing unusual about the process of negotiating an agreement for Dow to comply with state hazardous waste law. If the state continues to pursue a consent decree, it will go out for public comment before it is finalized.

A spokesperson for the attorney general could not comment on the proposed consent decree because it represents confidential information discussed with a client. The spokesperson also says that no staff member in the attorney general's office played a role in leaking to the public any communications with DEQ.

The consent agreement would be a counterpart to the pending renewal of Dow's hazardous waste operating license, which includes requirements for corrective action in contaminated areas. The license is issued under state laws that are equivalent to mandates in the Resource Conservation and Recovery Act (RCRA). Harding said that one possibility is for the state to drop the consent agreement and include all cleanup provisions in the operating license.

Environmentalists protest that the DEQ's recent discussions with Dow are an example of the company's undue influence with government regulators, arguing that the state's first priority should be to finish sampling for dioxin and develop plans for any necessary cleanup. The consent agreement does not address contamination downstream from the facility and outside the city of Midland, where state regulators say more sampling is still required.

Environmental groups also object that the proposed long-term health study would be of questionable worth because it would be funded by Dow, making it difficult to qualify as independent research. If the study is completed and demonstrates few health problems in Midland residents, Dow could then be released from future cleanup responsibilities or liability.

"They would basically write themselves a clean bill of health in terms of obligations to remediate anything," the source says.

But the DEQ spokesperson says that since the proposed health study would cost around $5 million, it realistically could only be funded by industry, because "the state of Michigan's facing half a[budget shortfall]." But the state is still exploring how to pay for the study and may ask Dow to channel the money into an independent fund.

Date: October 28, 2002

© Inside Washington Publishers

For additional articles like this one, go to the Tittabawasse River Watch web site www.trwnews.net for complete coverage of the Tittabawassee River Dow Chemical dioxin contamination saga. . The Newspaper / Media page of our site contains an extensive archive of media articles dating back to January 2002. The source organization's web site link is listed to the right of the article, visit often for other news in our area. The Newspaper / Media page may be accessed by scrolling down to the bottom of the CONTENTS section and clicking on the Newspaper/Media link.