Bay City, MI—In May, Judge Thomas L. Ludington of the U.S. District Court for the Eastern District of
Michigan ruled that the U.S. Army Corps of Engineers complied with the National Environmental Policy Act (NEPA) by preparing only a brief environmental assessment of its plans to build an uncapped, unlined landfill to dispose of 3.1 million cubic yards of dioxin-contaminated sediments that will be dredged from the upper Saginaw River.
The judge rejected NELC’s argument that the project requires a full environmental impact statement (EIS) because of its significant effect on the environment. “The judge accepted most of our legal arguments, and adopted standards for reviewing NEPA disputes that should make it easier for environmental plaintiffs to win future EIS cases in Michigan,” explained NELC Attorney Stephanie
Matheny. “However, he simply did not agree with us on the facts of this case.” Although plaintiffs Environment Michigan and Lone Tree Council dispute the judge’s factual conclusions, they opted not to
appeal the decision because a reviewing court would be unlikely to overturn his findings. Nonetheless, the Corps may still be required to conduct an additional NEPA review of the project. Documents obtained from the Environmental Protection Agency indicate that Dow Chemical Company may be planning to use the Corps’ landfill to dispose of sediments from Dow’s federally-mandated cleanup of the Tittabawassee and Saginaw rivers. The Corps did not evaluate this use in its environmental assessment, and did not design the landfill to accommodate the extraordinarily high levels of dioxins that have been found in the Dow sediments.
“The Corps’ own documents acknowledge that Dow’s sediments are 50 times more contaminated than those the Corps planned to put in the landfill,” said Environment Michigan’s Mike Shriberg. “Clearly, this would be a significant change in the scope of the project, and the Corps should prepare a full EIS before allowing Dow to use the landfill.”
Despite the court’s ruling, construction of the landfill has come to a halt as a direct result of the Corps’ poor environmental review. When it did its NEPA analysis, the Corps ignored requests from the public to prepare a hydrogeological study to determine the likelihood of groundwater contamination. Once the landfill site was purchased, however, Michigan’s Department of Environmental Quality (DEQ) ordered the Corps to conduct such a study.
The study’s results confirmed that dioxins could be released to groundwater through sand breaks in clay under certain parts of the landfill. As a result, the Corps was forced to reduce the size of the landfill by approximately 60 acres to avoid the most porous areas, limiting the project’s ability to meet the Corps’ long-term disposal needs. In addition, DEQ is now requiring the Corps to install a costly slurry wall to reduce the likelihood of groundwater contamination under the remaining portion of the landfill.
The numerous design changes have caused significant delays and cost overruns. As of August, the cost of the project had ballooned from the Corps’ initial estimate of $1.5 million to as much as $4.6 million. As a result, construction at the site—originally slated to have been completed in 2006—has stopped. The Corps also faces a completely unanticipated problem – the partially completed landfill is already full of water because of heavy rains. This calls into question whether the Corps will be able to comply with its water quality certification once the landfill is in operation.
“Ironically, the Corps initially justified the selection of this site with the argument that it would be less expensive than other alternatives and would meet the Corps’ disposal needs for 20 years,” said Lone Tree Council’s Michelle Hurd Riddick. “If it had done its job right from the beginning, the Corps might instead have chosen a more economical alternative that was both better for the environment and better suited to the Corps’ disposal plans.”