Group tries to stall dioxin deal

Friday, December 6, 2002

THE SAGINAW NEWS

A coalition of residents and environmental groups were to head to court today in a last-minute attempt to block a deal that would drastically ease dioxin cleanup standards for Midland.

Residents from Midland and Saginaw counties, as well has a half dozen local and statewide environmental groups, filed suit Thursday against the state Department of Environmental Quality.

Ingham County Circuit Judge William Collette was to rule on the complaint at 9 a.m. -- less than 24 hours after he received the complaint.

The suit seeks an injunction that would at least stall an agreement between the state and Dow Chemical Co.

The proposed pact would raise the dioxin cleanup level near the company's complex in Midland and surrounding communities to 831 parts per trillion from 90 parts per trillion.

Public comment on the agreement, called a consent order, ends Monday, and top DEQ officials have announced they intend to approve the deal before the end of the year.

"We are very concerned about the horse getting out of the barn," said Chris Bzdok, an environmental law attorney based in Traverse City.

"If they don't follow the correct process and still sign the agreement, we're not sure how much good it's going to do us (to sue the state later)."

The suit is "premature" and could end up delaying a cleanup and health study included in the agreement, said DEQ spokeswoman Patricia Spitzley.

"We haven't done anything," she said. "They haven't given us the time to even consider the public comment.

"I'm hoping that the judge will see that it is premature and let us do our job."

The complaint alleges that the consent order is illegal because of irregularities in the approval process and flaws in a "probabilistic risk assessment," a complex mathematical model that calculates the health dangers posed by dioxin.

State officials have maintained that environmental laws only require them to investigate soil contamination where dioxin levels exceed 90 parts per trillion and that consent orders are a common way to negotiate for cleanup of a specific site.

Bzdok, however, said the Midland consent order does not clearly identify the boundaries of the potential cleanup area.

"They've set a standard, and now they are going to look for a site (by running more tests)," he said.

"The way this normally works is you determine where the contamination is, you set up boundaries, and then you set up a cleanup plan."

The federal Environmental Protection Agency staff has said the consent order ignores guidelines for using risk assessment models and relies on data from consultants hired by Dow, Bzdok said.

Dow's Midland complex, which has operated on the site for more than 100 years, is considered by experts as the likely source of dioxin in Midland and along the Tittabawassee River.

Staff in the state attorney general's office two months ago called a draft of the order "illegal" and "fatally flawed," Bzdok noted.

The latest draft, revised by DEQ staffers after consulting with a private attorney, is substantially different from the one rejected by the attorney general, DEQ Deputy Director Arthur Nash has said.

"We want them to throw out the whole agreement because it's illegal," Bzdok said. "Barring that, we at least want the public process to go down the way it's supposed to."

The lawsuit was a last resort for residents, said Terry Miller, a member of the Saginaw Valley environmental group Lone Tree Council.

"If we could have thought of another way of doing it, we would have done it," he said. "The order sets a rather nasty precedent with potential application to areas downstream. It should be of state and national concern." t

Andy Grimm is a staff writer for

The Saginaw News. You may reach him at 776-9688.