Dow Suit Changed Environmental Landscape In Central Michigan

The Tittabawassee River in Midland, Michigan.

Detroit, MI – This past summer, after 16 years, one major modification, and millions of dollars of required pollution reduction and environmental clean-up expenditures, the Clean Water Act consent decree negotiated between NELC attorneys and Dow Chemical Company was officially terminated, with the consent of all parties, by the U.S. District Court for the Eastern District of Michigan.

The 1997 consent decree grew out of a case filed by NELC in 1995 on behalf of local environmental activists, charging Dow with discharging illegal amounts of chemical pollutants into the Tittabawassee River, Saginaw River, and Lake Huron from its flagship Midland, Michigan, manufacturing complex.

Under the terms of the decree, Dow Chemical substantially upgraded both the technology and the operation of its then antiquated waste- water treatment plant, leading to a marked reduction in pollutant loadings and a significant improvement in permit compliance.

In addition, Dow was required to remove and lawfully dispose of some 40,000 tons of dioxin-contaminated wastes, which had been one major flood away from being washed into the Tittabawassee River and contaminating downstream communities.

Dioxins—a class of chemicals formed as unwanted byproducts of certain industrial processes—have been linked to birth defects, immune system deficiencies, cancer, and reproductive and developmental problems.

When it became clear that technical difficulties would prevent Dow from meeting the dioxin removal schedule specified in the consent decree, NELC brought local public health advocates and a national engineer- ing expert into negotiations with the company.

As a result of these negotiations, the Dow consent decree was amended in 2001 to expedite the dioxin removal process while at the same time greatly increasing the community protections associated with the handling and disposal of the wastes.

In addition, as part of the revised 2001 settlement Dow and local public health groups co-produced a dioxin training video for Dow employees.

Finally, Dow was required to pay $1 million in penalties, the bulk of which has been used to fund a wide variety of projects to improve the quality of local waterways (see related interview on 2014 Winter – Interview: Terry Miller Of Michigan’s Lone Tree Council).

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Interview: Terry Miller Of Michigan’s Lone Tree Council

Terry Miller

Terry Miller was one of the named plaintiffs in NELC’s Clean Water Act lawsuit against Dow Chemical Company (see related story on 2014 Winter – Dow Suit Changed Environmental Landscape In Central Michigan).

Terry is a founding member of the Lone Tree Council, a citizen group that has worked since 1978 to preserve and protect Michigan’s Great Lakes Bay Region, the urban areas of Midland, Bay City, and Saginaw, and rural areas reaching out into Michigan’s “thumb.”

How would you characterize your work to protect the Great Lakes Bay Region?

We are in our 35th year of environ- mental activism, and the critical is- sues never seem to go away.

Most recently we joined Sierra Club and other state organizations in op- posing Michigan’s second-largest utility, Consumers Energy, in its effort to build a new coal-fired generating plant in Bay City. The utility has since cancelled that plant. We are also monitoring the Dow Chemical/EPA-directed dioxin cleanup of some 50 miles of river.

What has been the significance of your 1995 Clean Water Act lawsuit against Dow Chemical?

I think the Clean Water Act suit and its resulting 1997 settlement represent a model of environmental justice. The settlement required the company to address the outstanding issue of its chemical water pollution, and provided a grassroots opportunity to address locally identified projects that have improved our waters.

How has the lawsuit made a difference in your work to preserve and restore the environmental integrity of the Saginaw Bay region?

It is the settlement that keeps on giving. As part of its monetary penalty, Dow paid $800,000 into a local environment fund. Half of this was put in an endowment for long-term environmental benefits, and the remainder was placed into an interest bearing account.

Over a 16-year period, the fund grew to $1,198,820. Further, federal, state and local matching funds leveraged by these settlement dollars have amounted to approximately $20 million, a settlement-to-match dollar ratio of approximately 1:17.

To date, these monies have financed more than 30 watershed planning, water quality, resource restoration, and watershed education projects. And the endowment still provides for approximately $21,000 in annual grants.

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Exxon To Be Put On Trial

Houston, TX – ExxonMobil Corporation is scheduled to stand trial in early 2014 for more than 10,000 alleged violations of the federal Clean Air Act at its Baytown, Texas, refinery and chemical plant complex.

Unlike fellow oil and chemical giants Shell and Chevron Phillips (see story on p. 4), ExxonMobil hired three sets of lawyers to fight the enforcement suit brought by Environment Texas and Sierra Club rather than negotiate a solution to its long history of illegal emissions of smog- forming chemicals and hazardous air pollutants.

But armed with internal records obtained from Exxon, publicly-disclosed reports of violations, and several favorable rulings by the court, NELC attorneys will be well-prepared for the battle.

In June, U.S. Magistrate Judge Stephen Smith ruled that plaintiffs can sue not just for thousands of violations enumerated in their original complaint, filed in December 2010, but also for “new” violations occurring since that time. He also rejected Exxon’s claims that thousands of pages of documents in the case should be kept secret from the public.

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What Our Alumnae Are Doing Now

A recent survey of former NELC staff members reveals that they continue to make great contributions to environmental protection.

Dave Nicholas (Senior Attorney, 1991- 2003) remains in Boston, where he continues to partner with NELC and other groups in citizen enforcement suits and other environmental protec- tion litigation.

Stephanie Matheny (Staff Attorney, 2004-2008) works with the Tennessee Clean Water Network in Knoxville, where she has developed a litigation program to promote water quality throughout Tennessee.

Sarah Bergman (Paralegal, 2005-2006) is Assistant Executive Director of the Center for Biological Diversity, one of the nation’s leading protectors of endangered species.

Theresa Labriola (Staff Attorney, 2006- 2009) is now the West Coast Outreach Coordinator for Wild Oceans, where she brings conservation-minded fishermen and pro-fishing environmentalists to- gether to promote an ecosystem-based approach to fisheries management.

Adia Bey (Paralegal, 2006-2008) earned a Master’s degree in environmental management at Oxford University, and now serves as a Geospatial Scientist with Blue Ventures in Madagascar, where she is working to save threatened mangrove forests.

Janine Panchok-Berry (Paralegal, 2008-2011), NELC’s most recent “graduate,” is now a third-year law student at the University of California at Berkeley, where she has interned for Earthjustice and for the U.S. Department of Justice.

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Salmon And Shad Protection Suits To Be Heard By Court Of Appeals

The Weston Dam on the Kennebec River in Skowhegan, Maine

Boston, MA – On Oct. 23, NELC attorneys filed their final brief in the appeal of two cases seeking to enforce the Clean Water Act water quality certifications governing four hydroelectric dams on Maine’s Kennebec River.

The lawsuits, originally filed in U.S. District Court in Portland, Maine, on behalf of Environment Maine and Friends of Merrymeeting Bay, were consolidated for appeal in the First Circuit Court of Appeals in Boston after the district court issued a ruling in favor of the owners and operators of the dams, energy conglomerates Brookfield Power and NextEra Energy.

At issue is a provision in the dams’ water quality certifications requiring that, “to the extent that” the owners and operators desire to allow downstream-migrating adult Atlantic salmon and American shad to pass through the dams’ turbines, they must first demonstrate that such passage will not cause “significant injury and/or mortality” to these imperiled fish.

Brookfield and NextEra acknowledge that they have not made the requisite demonstration of safety, and they themselves have calculated that more than half the fish passing downstream at these four dams do so through the turbines. Nonetheless, the companies claim they do not actually “desire” this to occur, and the district judge took them at their word.

On appeal, NELC attorneys are urging the First Circuit to evaluate the defendants’ intentions by their conduct, and not by their words. “The companies could take effective measures to keep fish out of their turbines,” noted NELC’s Charles Caldart, “and by failing to do so they have chosen to subject salmon and shad to the high risk of turbine blade strike.”

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Settlements Point Way To Cleaner Air, Safer Facilities In Texas

Shell Oil Refinery at Deer Park.

Houston, TX – Shell Oil Company and Chevron Phillips Chemical Company have cut illegal air pollution from their plants in Deer Park and Baytown, Texas, by a combined 95 percent, marking the successful resolution of Clean Air Act lawsuits filed against the companies in 2009 and 2010 by NELC.

The physical and operational upgrades mandated by the settlement agreements in each case have drastically reduced the frequency of so-called “upset” events—equipment breakdowns, malfunctions and operator errors that release unauthorized quantities of air pollutants that threaten public health and worker safety.

As a result, unpermitted emissions of carcinogens into the air have been almost eliminated at these plants, while emissions of smog-forming compounds and other harmful air pollutants have been slashed dramatically. The nearly $8 million in penalties paid by the two companies have funded local air pollution reduction projects and an environmental health clinic.

“The results achieved through these settlements show that polluters can make dramatic reductions in air pollution if someone requires them to make the effort,” said NELC Senior Attorney Josh Kratka.

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