As Dow and the MDEQ have tried to explain the SEP that reduces Dow's penalties by $400,000 for violations of air and waste laws, their justifications ring hollow.
According to MDEQ Policy and Procedures 04-002, the criteria to be used in assessing a SEP project are:
A. It must provide additional environmental enhancements: An acceptable SEP must provide additional voluntary enhancements not required by statute or rules, such as pollution prevention. An acceptable SEP cannot be a project an alleged violator would have to undertake to meet any other regulatory requirement, such as a project required as part of a natural resources damage award; it must be something the alleged violator does over and above anything else required of the alleged violator.
B. It must be a project beneficial to the environment: A project that provides significant benefit to the alleged violator in addition to benefiting the environment (such as installing additional pollution controls that result in an emission credit for the alleged violator) is not an acceptable SEP.
The SEP included in the proposed consent order is described as follows:
Project 1: Tile System Along South Saginaw Road -- Dow proposes to plan, construct and operate a tile system along South Saginaw Road for the purpose of capturing groundwater before it travels beyond the borders of the Michigan Operations facility. [Estimated cost: $800,000]
This SEP clearly fails to meet MDEQ policy for the following reasons:
1. If the groundwater is clean, it fails to provide any environment benefit. Collecting clean water and adding it to the Dow Waste Water Treatment facility will degrade its quality and do more harm to the environment.
2. If the water is contaminated, Dow is required by state law to prevent
it entering the groundwater and other waters of the state, and thus does
not meet the SEP criteria A.
3. Either scenario mentioned above results in the SEP not meeting criteria B because it results in significant benefit to Dow. If the water is clean it is being used to dilute other contaminated water on site. If it is contaminated, it is a remedy that would be required under other statute.
The MDEQ staff and Department of Attorney General supports the conclusion that this SEP fails to meet the acceptable criteria. Documents obtained under the Freedom of Information Act include the following analysis of the Dow’s Tile System SEP:
“Based on the above discussion, DEQ staff recommend rejection of the SEP and that Dow be requested to submit an alternative proposal. The Department of Attorney General, Natural Resources and Environmental Quality Division staff have reviewed the SEP, and concur in this recommendation.” (Briefing Paper – The Dow Chemical Company Supplemental Project Evaluation – September 11, 2001)
MDEQ and Dow's justification for why this SEP should qualify appeared in a Midland Daily News Article (3/1/02):
"Based on sampling, this seasonal off-site groundwater is not contaminated,
is not required by law to install such a tile system," said Neil Hawkins, environmental, health, and safety leader for Michigan Operations. "However, the new tile system will provide additional environmental protection against any future groundwater contamination to flow off site".
Ken Silven, MDEQ -- "It is an SEP becasue it is a preventive measure"
Michigan law that make it illegal to discharge pollutants into our waters,
making the proposed SEP a requirement under the law, not a preventative
Michigan law clearly states:
324.3109 Discharge into state waters; prohibitions; violation; penalties;
MCLA Sec. 324.3109. (1) A person shall not directly or indirectly discharge
the waters of the state a substance that is or may become injurious to any of
(a) To the public health, safety, or welfare.
(b) To domestic, commercial, industrial, agricultural, recreational, or other uses that are being made or may be made of such waters.
(c) To the value or utility of riparian lands.
(d) To livestock, wild animals, birds, fish, aquatic life, or plants or to the growth,
propagation, or the growth or propagation thereof be prevented or injuriously
affected; or whereby the value of fish and game is or may be destroyed or impaired.
Because the SEP fails to meet the MDEQ policy, Dow should be required to propose a new SEP (subject to further public comment), or the penalty assessed against Dow in the final consent order should be increased by a minimum of $400,000. This is consistent with Consent Order paragraph 12.9 that requires an additional penalty of $400,000 if SEP is not completed.
Lastly, the MDEQ has decided to not respond to public comment made on the record (their usual practice) before making their final decision.
The public needs to demand that laws designed to protect public health are enforced. If they do not, 2002 could be a very bad year for Michigan's environment.
James Clift, Policy Director
Michigan Environmental Council
119 Pere Marquette, Ste. 2A
Lansing, MI 48912