MLT Newsletter
July, 1987
The summer issue of the MLT Newsletter is focused on water quality and
what protection we as citizens have when we suspect contamination of
our water supply. To explore the subject we have three very able
writers.
The first article is by Lisa Phillips, MLT Board member from Lawton,
who is working on her Masters Degree at Western Michigan University in
Earth Science with an emphasis on hydrology. She is employed as a
geologist with Wilkins and Wheaton Testing Laboratory.
Richard Orawiec of Pullman is a founder and present chairperson of the
Black River Watershed Committee, an organization with the purpose of
monitoring the Black River Watershed, and of mediating between the
concerns of citizens and government agencies, such as the Department of
Natural Resources.
Marybeth Pritschet from Hopkins is a 1987 graduate of the Valparaiso
University School of Law- Her interest in law, and environmental law in
particular, stems from her activity as a founder and Board member of
the environmental organization, Save the Dunes.
The last article relates to the Green Politics Reading Group announced
in the last Newsletter. The group has been well received and continues
to meet on the fourth Monday at 7.30 at Wesley Foundation. Maynard
Kaufman has contributed an article on the first nationwide Green
Conference.*
NOTES ON THE GROUNDWATER QUALITY OF SOUTHWESTERN MICHIGAN
Lisa Phillips
The intrinsic groundwater quality in southwestern Michigan is good. The
aquifers are composed of glacial sediments, predominantly glacial till
(unsorted, unconsolidated sediments ranging in size from clay to
boulders) or outwash (well sorted sediments deposited by glacial
meltwaters). Generally the resulting groundwater is good, although high
in iron and very hard. Iron concentrations frequently exceed the EPA
Secondary Drinking Water Standard for iron. These secondary standards
are set to provide guidelines for
the aesthetic quality of public drinking water supplies (i.e. taste,
odor, and color). Ultimately, because of agricultural, industrial, and
household activities, the quality of the water coming out of our taps
may be suspect.
Modern agricultural practices often contaminate groundwater supplies
with nitrates and pesticides. Nitrates in groundwater pose a severe
health threat to infants, causing blue baby syndrome. As a result,
county health departments provide inexpensive testing for nitrates, and
their record keeping is good. Southwestern Michigan, being
predominantly agricultural, is dotted with areas of nitrate
contamination (areas exceeding the EPA Primary Drinking Water Standard
of 10 ppm). In contrast, pesticide contamination is poorly documented
in the region. Such testing is very expensive. Furthermore, there are
numerous pesticides and unless it is known what local farmers are
using, and have used in the past, it is difficult to determine which
pesticides to select for analysis. Contamination from agricultural
practices is from a non-point source, it is a contamination source
covering many acres, perhaps square miles, rather than emanating from
one discharge point. The resulting groundwater degradation is often
very difficult to identify and trace.
Some common industrial contaminants include solvents (e.g. benzene,
toluene, and xylene). While industrial contaminants are often of a
serious nature, they are easier to identify, and sometimes easier to
control than agriculturally derived contaminants. In the past it has
been possible to hold many regional industries accountable for
hydrogeologic studies to determine the vertical and horizontal extent
of such contamination and its eventual clean—up.
Every household septic system should be considered a hazardous waste
facility. They are repositories for household cleansers, solvents,
medications, nitrates, bacteria, etc. The greatest hazard arises when a
private water well is located downgradient from one of these
“facilities”. Depending upon several
factors——soils, well construction, groundwater flow
direction, etc.——it may not take long for the constituents
we flush away to return via our tap water.
There are several factors involved in determining how safe our private
(or municipal) drinking water wells are with respect to the threat of
contamination. Well location is critical. The most protected
drinking water wells are those that are not located downgradient from
potential contamination sources (e.g. agricultural fields, industries,
underground storage tanks at the corner service station, and septic
systems. Well depth is also important. Obviously, shallow wells,
especially where there is a shallow water table, generally become
contaminated first. This is particularly true with regards to nitrates,
pesticides, heavy metals, and petroleum derivatives. A deeper well is
further protected if it penetrates a clay layer. Clay, if continuous
over a region, provides a barrier between shallow and deep aquifers, or
above a shallow one. Moreover, many contaminants are absorbed onto a
clay while being transported through it. Thus wells are generally more
protected if they are in areas having a deep water table, if they
penetrate a significant clay layer, and are in soils high in clay
and/or organic matter. However, if a well screen is set just above a
clay layer, it may become contaminated with constituents that are
heavier than water and therefore have a tendency to sink to the bottom
of the aquifer.
Cleaning up a contaminated aquifer is extremely expensive, and in some
cases the technology to do so is not yet available. Furthermore, it is
virtually impossible-both technologically and economically-to
completely restore an aquifer. This leads to only one inevitable
conclusion-prevention is the only common sense solution.
Those of us involved in agriculture can begin by utilizing management
strategies to prevent nitrate and pesticide contamination. Obviously,
the most effective method of preventing pesticide contamination is not
using -them. Alternatives like integrated pest management exist.
Cycling of nutrients, an essential of agriculture, mandates the
existence of nitrates, and other essential nutrients for plant growth,
in our soils. A management strategy should ensure that the essential
elements remain in the soil for uptake by plants rather than be allowed
to leach into the groundwater.
The probability of finding nitrates (and pesticides) in the groundwater
is dependent on several factors. The most important of these include
the soil characteristics and the amount and timing of irrigation and/or
rainfall. In addition, a pesticide’s characteristics also include
its solubility, persistence, and its affinity to absorb to the soil.
Soils containing organic matter and high percentages of clay absorb
nitrates and pesticides more strongly than sandy soils. This is
compounded by the fact that these soils are more likely to be
irrigated. Water has the capacity to carry these contaminants down
through the soil profile to the water table. Thus the timing and the
amount of irrigation is critical. Irrigation following fertilization
(or pesticide application) allows the contaminant to leach to the
groundwater providing little chance for degradation to occur. Also,
nitrate contamination is commonly caused by applying more nitrogen than
the crop can utilize. Some management strategies to prevent nitrate
contamination include the scheduling nitrogen application following
irrigation, applying the nitrogen as close to planting time as possible
on sandy soils to minimize leaching, and at a-rate in accordance to the
crops ‘ nitrogen requirements and the anticipated yield.
Our region has been blessed with large reserves of fresh quality
drinking water. Yet over the past decades human activities have caused
degradation of this precious resource.
GROUNDWATER AND POLITICS
by Richard Orawiec
“Continue to soil your bed and one night you will suffocate in your own waste,”
Chief Seattle, 1855.
The final stage of the industrial revolution will see a conclusion to
the story of man, the “toolmaker.” The species will either
evolve a civilization that flows from and lives with the cycles of
organic life or reduces itself to the fate suffered by several earlier
localized civilizations (Mesopotamian, Indus, Mayan, Pueblo, etc.).
Exactly what does this have to do with the problems facing you in your
immediate life, right now?
Well, unless there is some understanding of the concept, “Think
internationally, act on a regional basis and begin in your own
backyard,” an effort to respond to a localized crisis cannot
expand itself to address the reasons for the crisis situation in the
first place.
Most environmental groups that are household names see the “big
picture” as a piece of legislation, or a major court battle, or a
large tract of land to be preserved. This is important, but how many
times in the last few years have you had a chance to join in such an
effort?
The Black River Watershed Committee was started by a handful of people
back in the summer of 1986. We had been sensing the ether and felt the
time was coming for a local group in one of the most impoverished areas
of the state.
The Lower Scott Lake Association provided the handle. One of their
members decided that he would dump 900 lbs. of 2,4-D to get rid of
“weeds” (millfoil) on the 24 acre lake, which is just east
of Pullman.
And so he did.
And so we responded, with a barrage of protest. The South Haven Tribune
ran with the stories. A lawsuit was threatene.d and much local
controversy was generated. The local Pullman Health Clinic agreed to
sponsor a groundwater forum. We agitated our best to generate
controversy and 125 people turned out. We were heartened by this.
Thereafter, in the late summer, the Waldo family entered the picture.
They had filed a lawsuit against the Mannes Oil “corps”.
Their farm looks and smells like an oil refinery. Oil people call it
the smell of money-yes, there really is a J.R.
Several of us began working with Shirley Waldo when Mannes requested a
groundwater discharge permit to purge brine and crude into the Black
River. The discharge permit became the logical focus of protest. After
interminable negotiations with the DNR, a forum was planned for
February.
Another 100 people turned out with a lot of media. But most importantly
we were learning the ropes-how to use a law library, understand permit
regulations, unravel the labyrinth known as “DNR,” write
press releases, etc.
After the February forum a group was obviously in the making. We
formalized it as the Black River Watershed Committee. Watersheds and
forests are the real jurisdictions in any bioregional perspective of
Michigan. The political ecology of the Black River made for an
intriguing concept.
The critical dimensions in any effort to organize a local action group
is a difficult thing to put into words. The very idea of trying to
reduce creative responses into neat outlines is contrary to the process
of struggle. Industrial society has a linear, reductionist view of
history, reality is more akin to a flux——like oceans, calm
and then in raging storm. The key part of organizing protest is to have
a cosmic sense of life but at the same time be able to read a
barometer, i.e., make your gambits when the storm is coming in and ride
the breakers. When the calm comes spend your time readying for the next
swells.
If I had to pinpoint the key mental attitude in girding for battle with
industrial society, it would be the essence of DISDAIN...the attitude
of the gladiators who stood in the coloseum and shouted, “Hail
Caesar, we who are about to die salute you...” The chances that
we will avert the destruction of the biosphere and the reduction of
society to remnants of barbarism are slim. Yet the effort should be
made.
If you chose to do this, your mind—set is critical. From such an
attitude will come the energy ito study law, economics, media, biology,
engineering, etc. The particular discipline doesn’t matter, most
of the so-called knowledge of a profession is no more than
sophisticated fish wives’ tales anyway.
The final point I’d like to make to the readers of this
Newsletter is a concept also foreign to industrial society. That is the
unity of opposites. Any strength is its own weakness and weakness is
its own strength. Put concretely, this means that a dedicated and
impoverished band can twist the equity and status conscious
society into contradictions. An example is the generalized
opposition to oil drilling and the spills that come with it. When will
the question of fossil based society finally hit home? (We can’t
have oil without drilling and you can’t drill without spill.) I
don’t know when, but I do know that I’m going to fight like
a gut shot banshee, and in the process find out.
Try joining us——it’s usually more fun to take control of your life than humans are allowed to have.
[The Black River Watershed Committee meets regularly on the third
Tuesday of the month, at the Pizza Plus restaurant in Pullman,
Michigan. For additional information call Richard Oraweic at (616)
236—6179.]
[The following article is offered for informational purposes only, and not as legal advice or guidance. Editor.]
MOVING MOUNTAINS
—— Marybeth Pritschet
Toxic chemical contamination of water is far and away the most serious
and far—reaching environmental problem in this and most other
states. It is virtually impossible to overstate the magnitude of the
dilemma posed by the excessive generation and improper disposal of
hazardous waste. Inadequacy of the governmental response is a facet of
the problem. Given current funding levels, state and federal agencies
are ill-equipped to deal effectively with the 10,000 identified sites
in the nation which constitute “immediate and serious”
threats to public health. Another 370,000 may require corrective
measures in the future. And, clean-up efforts are buried each year
under 300 million metric tons of newly generated toxic waste. Michigan
is a typical example of the national problem. well in excess of 2
million tons are genetated and dumped annually within state borders.
Citizen response when confronted with such statistics is often no
response. Feelings of powerlessness are brought to the fore by the
sheer bulk of the toxic waste mountain and are heightened by the
intractable difficulties inherent in efforts to deal with it. This,
too, is a facet of the problem. However, armed with personal commitment
and other necessary tools, Michigan citizens can move mountains.
The legal system is an indispensable tool in coming to terms with
chemical contamination of the environment. Therefore, it is important
to acquire a working knowledge of how the various components of
thesystem can be brought to bear on the problem. Citizens can engage
both public and private law, the two major elements of the civil
system, in efforts to move the mountain. The criminal system interfaces
with this issue but is engaged only rarely because of the higher
burdens of proof which must be met. For this reason some state
legislatures are rewriting criminal statutory provisions to more
readily encompass certain egregious conduct in the handling of toxic
substances. In June the Michigan House Judiciary Committee approved a
bill sponsored by Mary Brown which specifically provides for criminal
prosecution of corporate managers and their employees for violations of
toxic waste statutes. The bill, if enacted into law, would be a
significant tool for prosecutors because it contemplates criminal
sanctions for negligent as well as intentional release of toxics into
the environment. Burdens of proof for mere negligent conduct are easier
to meet. Letters from citizens in support are particularly important
because the bill faces stiff opposition.
Citizens can use the private civil law system to combat chemical
contamination of the environment when contamination results in injury
to person or private property. This sort of injury constitutes a tort,
a civil wrong. Contamination of a private water supply is an
all—too—common example of a tortious injury. A Plaintiff
may advance several legal theories to establish liability. Among these
ares nuisance (hazardous waste site interferes with the use or
enjoyment of one’s property), tresspass (chemicals invade
one’s property), and negligence (injury results from negligent
handling of toxics). Plaintiffs are entitled to seek both money damages
and injunctive relief. With the latter, a court has the power to order
that the pollution cease and that clean—up begin. There are
several such suits pending in Michigan courts.
The only way to proceed in this legal arena is through an attorney.
Importantly, in tort litigation legal services can be provided on a
contingent fee basis, With this fee arrangement, those who could not
otherwise afford to do so are able to pursue their legal rights at
little or no cost.
All litigation is complex and risky. “Toxic tort”
litigation is more so. Yet, win or lose, it remains an effective tool
for two reasons. First, it focuses media attention on the problem.
Secondly, the mere prospect of liability threatens polluters where it
hurts them the most, namely, in the pocketbook. And, the prospect of
liability attaching to a single Defendant forces more careful conduct
by all chemical handlers. Those who have reason to believe that their
property may be affected by toxics should immediately consult with a
lawyer experienced in this area of the law.
Public law as it relates to this issue, involves efforts by the
Attorney General or public interest groups to enforce statutes
regulating toxics. Michigan has a wide range of statutes on the books
covering many aspects of the problem. Of pivotal importance to public
interest efforts is the Michigan Environmental Protection Act. MEPA,
which works together with more particularized statutes, contains a
standing provision which affords any citizen the right to bring suit to
prevent “pollution, impairment, or destruction” of the
Michigan environment without the need to show an individualized injury
to person or private property.
Public interest litigation, with injunctive relief as the only remedy,
cannot proceed on a contingent fee basis. This litigation, then, must
be funded up front. Even with an attorney working at a reduced rate or
merely for costs, heavy expenditures often are required to carry the
suit through complex stages of litigation. For this reason private
citizens and groups on a shoestring budget should make several contacts
and carefully evaluate the responses before deciding to shoulder the
burden alone.
High on the contact list is the Toxic Substance Control Commission
whose purpose is to enhance the responsiveness of state government to
instances of contamination. The TSCC provides free of charge The
Citizens Guide to Community Health Studies. This comprehensive
publication is designed tO help citizens develop skills in gathering
essential data and in presenting it effectively to appropriate
agencies. Other entities to contact include the Environmental
Protection section of the DNR (under which fall the Surface Water
Quality, Waste Management, and Environmental Response Divisions), the
Department of Public Health, the office of the Attorney General, and
the Governor’s office. State legislators can be especially
helpful in moving agency officials to action, but help is likely only
from those who have shown sensitivity to this issue. Not to be
overlooked are private, staffed organizations concerned with
environmental quality. High on the list are the West Michigan
Environmental Action Council in Grand Rapids and the Michigan United
Conservation Clubs in Lansing.
Contacts may result in meaningful action. However, unless evaluation
provides material and prompt response (polite attention is not enough),
citizens are well—advised to engage the assistance of a lawyer.
Experience shows that precious time is invested far more efficiently in
fundraising for Legal expenses than on repeated trips and phone calls
to Lansing. Often a single letter from an attorney is more likely to
move state officials to action than personal contacts by lay people.
Representation by a lawyer carries the unmistakable message that you
understand how the system works and that you fully intend to move the
mountain.
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