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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.*                  


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.

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.]


——    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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