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The contamination problem that no one talks about and that seems to defy solution

15 Aug 2018

A chemical threat to Michigan’s drinking water that regulators were unaware of and don’t know what to do about.  Sound familiar? Thinking Flint and lead in the water?  Well, you’d be wrong and it’s not just a Michigan problem.

The chemicals are per- and polyfluoroalkyl substances (PFAS), and they are now a national health concern as they are beginning to show up in all sorts of places including dumps, groundwater, lakes, and drinking water.  Michigan has been called “ground zero,” but it is by no means alone.

PFAS chemicals have been used to make cookware, clothes, shoes, furniture, and even food packaging!  They are also used in fire-fighting foams.  PFAS includes a family of chemicals but currently the focus has been on two of the PFAS chemicals, as we learn more, those concerns may expand.  Unlike many other chemicals, there has been little study on the safety of these chemicals.  What is known is that, like PCBs,  PFAS chemicals are stable (they don’t degrade), they bio accumulate (the higher up the food chain you are, the more you likely have) and they pose remediation challenges because of their stability.  Unlike PCBs, they are water soluble which makes them much harder to control.  As a result, they are widely found in the environment and are already present in the blood of virtually everyone in the developed world.

Some studies indicate that PFAS chemicals may:

  • affect growth, learning, and behavior of infants and older children
  • lower a woman’s chance of getting pregnant
  • interfere with the body’s natural hormones
  • increase cholesterol levels
  • affect the immune system
  • increase the risk of certain types of cancer

They are a human health and environmental concern but there is little consensus on what levels of these chemicals are safe in your system.

According to the Michigan Department of Environmental Quality (MDEQ), there are more than a dozen communities where PFAS has been detected.  Some Michigan communities have been discovered to be using PFAS-impacted groundwater for their drinking-water supply.

In November 2017, Governor Snyder issued executive order (EO) No 2017-4 creating a multi-agency “Michigan PFAS Action Response Team” to, among other things, “make inquiries, conduct studies, consult with federal agencies, and receive public comments.”  The State reportedly will test 1380 water systems and 460 schools for PFAS.

In December 2017, the legislature passed PA 201 which, inter alia,  included $23.2 million for state PFAS remediation.  It passed 109 to 1 in the House and 33-4 in the Senate but that may be a drop in the bucket as more sites are discovered.  This spring, MDEQ asked regulated wastewater treatment plants (WWTP) to conduct a screening of their industrial users to identify PFAS sources including landfills that treat their leachate through the WWTP; develop and implement a monitoring plan to evaluate the possible sources; reduce or eliminate PFAS sources; evaluate impacts and submit reports.

The EPA set a lifetime health advisory (LHA) level for two PFAS in drinking water, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS). The LHA level is 70 parts per trillion (ppt, equal to 70 ng/L) for PFOA and PFOS combined, or individually if only one is present. The EPA has not set health advisory levels for other PFAS chemicals. The State of Michigan is using 70 ppt for decision making purposes.

In the absence of federally-enforceable limits, some states are developing their own guidance and enforcement limits. The limits set by the states range from 400 times higher to 5 times less than the current EPA advisory levels.

Litigation over this contaminant has already begun in New York, Minnesota, Michigan and many other states.

For a State that dealt with PBB contamination  in the 1970’s, a whole host of contamination issues from the 1970’s until now and then the Flint lead crisis, Michigan seems to have learned its lesson and is jumping on the PFAS problem with both feet but the ubiquity and complexity of PFAS appears to make this the biggest, most difficult and most expensive environmental issue Michigan may have ever faced.

Want to raise taxes by $79 Million Each Year? Governor Snyder does

31 Jan 2018

On Tuesday, Gov. Snyder announced a proposal to spend $79 Million annually on brownfield site clean-up, waste management planning, asbestos removal, recycling grants, water quality monitoring and state park infrastructure.

These are all laudable goals – but one has to question  – where is the money to come from?  The Governor wants to raise a fee on garbage disposal by 1,200%

The Governor asserts that Michigan only recycles 15% of its waste (he’d like it to be 30%) and that “to reduce waste in Michigan landfills” he’d like to increase the “surcharge” currently imposed on landfills from $0.36 per ton to $4.75 per ton.  Presently, this surcharge (which was the result of negotiations between the State and industry) provides funds to the State’s Solid Waste Management Fund which helps fund permitting and licensing of landfills and other solid waste management facilities, inspections, permit and license enforcement, monitoring and inspections of landfills and solid waste management facilities. In short, the surcharge pays (along with other fees paid by the industry) for the permitting and regulation of the facilities paying the fee.

One has to wonder why landfills should be paying:

  • $45 Million each year to remediate and redevelop existing and future contaminated sites which in most cases have nothing to do with regulated and permitted landfills;
  • $5 Million each year for water quality monitoring grants which definitely have nothing to do with landfills;
  • $5 Million each year for state park infrastructure which, again, are unrelated to landfills.

Isn’t that why we pay taxes?  Shouldn’t those regulated communities pay the costs which have nothing to do with landfills?  Also, there is a State superfund law (Part 201) that requires polluters to pay for their pollution.

One can argue that paying $9 Million for local governments’ solid waste planning and $15 Million for grants to municipalities to support recycling should be covered by the State’s general fund, as well, as those functions have nothing to do with regulating those who pay the fee.  When you go to get your driver’s license, would you want to be charged an additional $100 to pay for roadside cleanup of stuff like tires and debris?  It is tangentially related to driving so, does that make it OK?

There is Michigan Constitutional law that says that the answer is “no” and that this “fee” is a disguised illegal tax being snuck past the taxpayers.

Michigan voters have regularly approved bonds to fund remedial and other environmental expenditures, knowing that it was an investment in our health and economy. Why is Governor Snyder afraid to ask the taxpayers to do so again?  Perhaps one word: Flint?

Infrastructure funding in the age of austerity – just don’t call it a “tax”

17 Jan 2017

As demands for municipal services increase, costs go up and tax revenues flatten or fall, what is a municipality to do?  Most Michigan politicians have decided that even to suggest more taxes is the kiss of death.  Everyone agrees Michigan’s roads need work.  The gas tax went up on January 1 and even that increase was widely viewed as an inadequate to fully improve our sub-par roads. Recently, a Michigan State study indicated that nationally, roughly 12% of households cannot afford the cost of water services and, if water rates rise to cover repair and upgrade expenses due to the aging of our systems and other factors, that unaffordability factor may go up to almost 36% in the next five years.

The Governor’s 2016 Infrastructure Commission, appointed in the wake of the Flint Water Crisis, reported that we need a modern infrastructure system to compete globally, to have economic prosperity, and to have healthy citizens and a healthy environment.  However, the Commission did not answer the all-important question of how to fund all of this work.  The Commission reports that Michigan lags behind every other state in the region in capital funding for infrastructure and that Michigan needs to spend $4 Billion more every year than it currently does just to align with an average state and the State’s needs.  This would be a 7% increase in spending.  The Commission did not address how Michigan should fund this shortfall.

The business group, Business Leaders for Michigan issued a report earlier this month. That Report reached the same conclusion and proposed that the State ramp up its spending and opened a door to creative and novel financing approaches including user fees which the Report indicated may be used to fund costs of “services, enhancements to increase the quality of life, and … administrative and regulatory processes.”  This report discusses such fundraising approaches as: fees per mile traveled (vs gasoline taxes); public-private partnerships; fees based on property value increase; fees which take into account all lifetime system costs; selling or leasing systems to raise funds for new infrastructure improvements; toll roads and other more “outside the box” approaches.

We have seen this before but not on a statewide approach such as when municipal governments try to fund environmental initiatives, such as stormwater management (required by federal law). The cities of Lansing, Jackson and Detroit all adopted stormwater “fees” based on the paved acreage of various properties within their jurisdiction.  Clearly, to the municipalities, this seems like a good idea – otherwise, why would they keep doing it? Reportedly, nine Michigan communities have created stormwater utilities to impose such charges (Adrian, Ann Arbor, Berkley, Chelsea, Harper Woods, Jackson, Marquette, New Baltimore, and St Clair Shores).

The Michigan Supreme Court established a three part test to distinguish between a fee and a tax: (1) “a user fee must serve a regulatory purpose rather than a revenue-raising purpose;” (2) “user fees must be proportionate to the necessary costs of the service;” and (3) “user fees must be voluntary.”  Bolt v Lansing, 459 Mich 152, 161-162 (1998)

Unfortunately for the municipalities, the Michigan Courts keep striking these fees down as illegal, hidden taxes.  In the case of Jackson County v City of Jackson, the plaintiffs challenged a stormwater management charge imposed by the Jackson City Council. The Court of Appeals ruled that the charge was a tax imposed in violation of §31 of the Headlee Amendment to the Michigan Constitution. The court held that the charge: (1) did not serve a regulatory purpose because it shifted funding of certain activities from the general fund to the charge; (2) was disproportionate to the benefits conferred upon the payor as there were no payor-specific benefits; and (3) was not voluntary because there was no way to avoid the charge by doing, or not doing, something.   The Court of Appeals cited Bolt v Lansing, which invalidated a similar stormwater charge on similar bases. Ultimately, both courts held these “charges” to be taxes subject to, and failing to meet, Headlee Amendment requirements.

Last year, the Michigan Legislature saw the introduction of a bill that would authorize such “fees,” regarding water and sewer, ostensibly to make them harder to defeat in Court under the Bolt test. The need is real and I am a big believer in top quality infrastructure which needs to be paid for.  My question is, with the 1978 Headlee Amendment that puts the size and cost of government in the hands of the taxpayers, and with a backdrop of fees rising beyond what some citizens can afford – can and should our Legislature try to pass this off by various “fees” without getting the voters’ approval as well as other “creative” solutions, some of which may cost the taxpayers less in the short run but more in the long run?  I’m all for the efficiencies in purchasing and scheduling that Governor Snyder has been pushing for but, as we watch more and more systems fail (like the recent Fraser sinkhole), it is clear that we cannot continue to push this off – if the citizens see that, they should be willing to pay for it. If these expenses get passed on in the form of fees which are not voted on and the citizenry gets hit with larger fees that they were not told about, who thinks that will play well at the voting booth?

What will 2017 Bring? Dramatic Change?

20 Dec 2016

edit_calendar_ssk_47433454In prior years, we knew that regulatory and environmental change was coming but we expected it to be slow and incremental.  With an unknown quantity like President Elect Trump, one thing is clear – no one really knows what may happen.  Here are a few possibilities:

1.  Coal/Cleaner Energy Generation – revitalizing the coal industry was part of Mr. Trump’s midwest stump speeches.  Will Mr. Trump be able to reverse Barack Obama’s Clean Power Plan? What about the Paris Climate Accord?  Certainly, his team is looking at both of those right now. The dispute in Michigan v. EPA, decided in June 2015, continues to rage.  In 2015, the US Supreme Court ruled that the EPA didn’t properly justify its rule governing mercury and toxic pollution (MATS) from power plants because it did not specifically address costs at the initial stage of the rulemaking process. In April, the EPA announced it was standing by its MATS rule and concluded that the benefits far outweighed the costs.  Petitioners continue to litigate whether the EPA properly evaluated costs.  Here in Michigan, new legislation has been passed (and is awaiting the Governor’s signature) intended to encourage additional investment in energy generation and transmission while balancing consumer choice and a greater percentage of renewable energy generation.  Will it work? At a reasonable cost?

2. Power Generation Subsidies/Oil/Gas Generation – Mr. Trump’s attacks on “crony capitalism” would seem to mean that he will stop financial incentives for solar and wind generation.  Will he also attack oil and natural gas supports in the tax code?  Will he open up ANWAR to oil/gas exploration?  Will he scale back attempts to regulate fracking?  This will be difficult in light of the December EPA Report  which concluded that fracking posed problems such as:  fracking water withdrawals compete with other water needs; spills of hydraulic fracturing fluids and chemicals or produced water may impair groundwater resources; injection of hydraulic fracturing fluids into wells may allow gases or liquids to move to groundwater resources; discharge of inadequately treated hydraulic fracturing wastewater to surface water resources; and contamination of groundwater due to disposal or storage of fracturing wastewater.

3. Pipelines – will Mr. Trump reverse the Obama administration’s dim view of oil and gas pipelines such as the Keystone XL and Dakota Access Pipelines?  How will this affect Michigan where public awareness of two 60+ year-old pipelines under the Mackinac Straits has galvanized both sides of the political spectrum into action.  In 2014, Michigan convened a pipeline task force which issued a report in 2015.  In September, 2015, the State entered into a written agreement with Enbridge to prevent the transport of heavy crude oil through the Straits Pipelines.  The task force also recommended that the pipelines be independently evaluated and that additional financial assurance be provided.  The State solicited Requests for Information and Proposals (RFPs) and Enbridge agreed to pay $3.6 Million for the evaluation of the Straits Pipelines.  An independent evaluation of alternatives to the Line 5 pipelines is also underway.  When those will be completed is not known.

4. Infrastructure – Mr. Trump campaigned on infrastructure (although to hear him tell it, that only encompasses airport quality), and Governor Snyder appointed a 21st Century Infrastructure Task Force which concluded that the State needed to be investing $4 Billion more than it was in infrastructure to address roads, bridges, internet, water, sewer and other infrastructure needs.  Given the recent nationally publicized Flint Water debacle, will Michigan find the intestinal fortitude to fully invest in infrastructure or will we continue to patch and delay?  Given the State’s recent fight against a federal judge’s order to deliver clean water, and Michigan legislators “default anti-tax setting,” the future does not bode well.

5. Brownfields – as previously reported, Michigan adopted legislation streamlining its brownfield funding laws and deferred action on Dan Gilbert’s “transformational” brownfield funding legislation.  Will that resurface in early 2017?  I expect it will.

6. Other issues – there are a number of other issues on the horizon including cleanup standards, the maturing of the Great Lakes Water Authority and its ability to deliver clean water and septic services at a reasonable price, Michigan’s effort to reimagine its solid waste program, water withdrawals and protection of the Great Lakes from invasive species and nutrients leading to algal blooms.

Protect the lakes – don’t flush your medicines – here’s how

24 Jun 2016

A few y13445475_10208142314013787_6103794917851915726_n (1)ears ago, the University of Michigan confirmed that it is a bad idea to put old medicines down the drain.  The State of Michigan agrees.  Here  is a link to the MDEQ’s website on this topic.  There have been concerns regarding the impacts of pharmaceuticals on wildlife, as most wastewater treatment plants are not designed or equipped to treat for medicines.

A few years ago, we had to rely on special programs to properly dispose of old medications,  but while recently helping my father-in-law, I learned that there are many more local drop off sites than before.  Here is one website that you can use to locate take-back locations. The Michigan State Police are now taking back medications at their 29 posts. The Oakland County Sheriff has launched Operation Medicine Cabinet with 33 locations across the County – these will accept all dry medicines.  If you have to put medications in the trash, here are instructions on how best to prepare them for disposal.

Why is flushing medicine a bad idea? The UM report talks about creating antibiotic resistant superbugs and there have been other reports about hormonal changes in fish, and finding traces of various prescription substances in drinking water (yes, what we flush can wind up in someone else’s drinking supply).

Detroit water … and the United Nations?

30 Jun 2014

Now this is a black eye that my town just does not need.  As regular readers know, I suspected that the DWSD would become a “hot potato” in the Detroit reorganization.  It has but not quite the way I expected.  One of the big issues that Macomb and Oakland Counties had raised was a concern that, if the system was regionalized, their residents would be paying for Detroiters who were not paying their water bills.  Recent reports seem to have confirmed this fear.

 The thought that some 50% of Detroiters simply do not pay the DWSD for a service that they use daily and expect the other 50% and the rest of us to foot the bills is dismaying.  Actually, it’s insulting.

In March, it was reported that some 165,000 of the DWSD’s 323,900 business, school, and commercial accounts were overdue, and more than 154,000 of 296,000 residential accounts were also delinquent. The DWSD took the position that accounts more than 60 days behind on water bills would be shut off.  In April of 2014, DWSD sent 44,273 shut-off notices and actually shut off 3,025 customers for non-payment; there were also additional collections of $400,000 reported as compared to the same time in 2013.

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Climate change adaptation; don’t put all your bananas in one basket

28 Apr 2014

Perhaps a thing of the past?

Perhaps a thing of the past?

Climate change seems to be in the press pretty much all the time these days.  There are stories about the UN reports on climate change (see also here); the President has a two-pronged plan (attack causes of climate change and harden systems against climate events) and, recently, the President requested $1 Billion in the 2015 Budget to support developing climate-resilient infrastructure.

A couple of years ago, a report prepared for the United Nations suggested that as the climate changed, three of the world’s biggest staple crops — corn, rice and wheat — would decrease in many developing countries, and the potato, which grows best in cooler climates, could also be affected by warmer temperatures and changing weather patterns.  The report suggested that bananas could replace potatoes in a warming world as a critical food source.

Unfortunately, now there are reports that the Cavendish banana that most of us buy at the grocery store is under threat of a seemingly unstoppable fungus.   You might say that this is alarmist non-sense and an entire fruit couldn’t be wiped out.  However, you’d be wrong – it happened with an earlier variety of banana called the Gros Michel which virtually no American under the age of 50 has ever eaten.  These bananas were reportedly in every way superior to the ones we eat today but were largely wiped out by a fungus similar to the one that is now ravaging the Cavendish variety.  This is an example of the risk of  cultivating only one type of fruit or vegetable – the same sort of mass production technique that led to the potato blight and famine in Ireland.

Of course, the best method to adapt and become resilient to climate change (although not the most economical) is to diversify – something we Americans have become less inclined to do when it comes to our desire for predictable and consistent groceries.  Will the fruit companies win the fight against the fungus? Will we replace the Cavendish with a new single type of banana (there are still hundreds of varieties mostly unknown to the United States)?  Will we find something else to grow instead of corn, wheat, rice and potatoes? Perhaps the much touted but less well known superfoods of quinoa, freekeh, or teff?  Time will tell, but one thing seems certain, greater diversity leads to greater resilience.  This is something that no environmental law or regulation is likely to fully address.