How The Big Boys Get Away With It
Gov. Engler created one of the most powerful jobs in state history in 1995 when he set up the Department of Environmental Quality. The person the Governor appoints to head this agency has the last word over all environmental permits and enforcement actions, and answers to no one but the Governor himself.
Russell J. Harding, the first and only DEQ director so far, has demonstrated that he is willing to take full advantage of his unprecedented authority to pursue his own agenda.
An outspoken critic of environmental policies and citizen proponents of them, Mr. Harding has made his mark by interfering in cases against polluters, resisting scientific facts, and defying the federal government. He is at the center of statewide concern about environmental non-enforcement, and on the forefront nationally in battles against the U.S. Environmental Protection Agency.
Mr. Harding started building a reputation for relaxing regulations and overruling staff recommendations while he was still a deputy director in the Department of Natural Resources.
In 1993, as DNR deputy director, Mr. Harding provoked an unprecedented public rebellion of agency employees when he proposed new rules for underground storage tanks, which can leak hazardous materials. Knowing that the change would relieve polluters of their obligation to clean up contaminated groundwater, 167 employees of the DNR’s Environmental Response Division issued a public letter alerting taxpayers and the media to the dangers in Mr. Harding’s plan.
“They were given no end of grief for doing that,” says Virginia Pierce, past district supervisor for DEQ’s Waste Management Division, president of Michigan Resource Stewards (a group of former state environmental officials), and member of the Institute’s Board of Directors. “But it goes to the question of how strongly they felt about changes that had occurred and their responsibility as public servants to care for the public trust.”
Now, with near-absolute authority over environmental enforcement as director of the new DEQ, Mr. Harding regularly sides with companies against science and his own staff.
The latest example is a permit Mr. Harding issued in June to Gelman Sciences, a Washtenaw County-based medical filter manufacturer that has fought hard for 16 years to avoid cleaning up groundwater contaminated with 1,4–dioxane, a suspected carcinogen.
Residents of the area lost their drinking water wells to the contaminant in the mid-1980s, and the state finally ordered a cleanup in the late 1980s. The company ignored the order, and the Attorney General’s office began assessing fines that have added up to $4 million. In 1997, the DEQ reinforced its cleanup order with strict permit conditions. The company appealed, but a DEQ administrative law judge responded by actually toughening the draft permit’s conditions.
Yet, Mr. Harding apparently saw no point in the efforts that local people and state authorities have made to clean up the groundwater. In June, he issued a permit significantly weaker than DEQ staff’s draft permit.
Last year, according to internal DEQ documents, Mr. Harding used his authority in an Upper Peninsula mining case to dismiss both staff recommendations and public health concerns.
Lawyers for the Tilden iron ore mine near Marquette, which had logged several spills from underground storage tanks in recent years, wanted the DEQ to change the legal lens through which it viewed the violations. The change would lower cleanup requirements and exempt the company from penalties.
In March 1999, when all other DEQ officials rejected their request, the attorneys turned to Mr. Harding, who gave the company lawyers what they wanted after meeting with them behind closed doors. He took this action even after the director of DEQ’s Underground Storage Tank Division warned in a memo that the “law should not be used to allow an owner to avoid enforcement action.”
PCBs on the Saginaw River
Significant public health concerns and the recommendations of two DEQ division chiefs also could not stop Mr. Harding last fall from working out a deal with General Motors to leave 12,000 pounds of PCBs sitting in a landfill next to the Saginaw River. The heads of both DEQ’s surface water quality and environmental response divisions had recommended that GM dig up and remove the polluted soil, which they said is “the most concentrated known source of PCB contamination in the State of Michigan.”
But Mr. Harding preferred GM’s “containment” solution of building a metal wall around the chemicals that will last about 40 years. The PCBs, however, will remain highly toxic and in need of containment for “hundreds, perhaps thousands, of years,” according to the division chiefs.
Mr. Harding told the Bay City Times that he chose GM’s containment plan because the multi-billion dollar company had the opportunity to save a relatively small amount of money — $2 million to $5 million — over complete removal of PCBs. “Given the cost differential, the fact that I was convinced we had a safe remedy here that was cheaper ... I just made the call,” he said.
Terry Miller, chair of the area’s citizen action Lone Tree Council, summed it up this way: “So the DEQ director saves GM a few million dollars today and saddles future generations with the cost of maintaining a toxic waste landfill, the health consequences to the community, and the loss of tourist dollars.”
Kalamazoo River Betrayal
Earlier this year, residents of the Kalamazoo area saw Mr. Harding’s trademark interference firsthand when he disrupted a major Superfund cleanup effort at the request of the polluting companies.
Citizens learned of Mr. Harding’s action when DEQ’s 10-year project manager for the PCB cleanup site, Scott Cornelius, received notice that he was to transfer to another project halfway across the state. Internal DEQ documents revealed that Georgia Pacific and three other major paper manufacturers on the hook for polluting the river had complained to Mr. Harding about Mr. Cornelius.
Mary Powers, coordinator of the Kalamazoo Watershed Council and a Kalamazoo County Commissioner, said the transfer was an obvious giveaway to the companies. “The state is foolish to think people who’ve worked for years on this would be insensitive to what has happened. Scott was a great advocate for the river. He just went ahead with the work, no matter who said ‘no.’”
Humbug Marsh Razing
Under Gov. Engler and DEQ Director Harding, the state of Michigan has done everything in its power to make way for a major housing development on the only native shoreline and substantial wetland left on the industrialized lower Detroit River.
Surrounded by rusted factories, steel yards, and millions of people, the Humbug Marsh does not have the postcard beauty that typically inspires people to write Congress for conservation help. But this 409-acre spot of green is sacred ground to sportsmen and local residents and vital to the wildlife and health of a much wider ecosystem, according to biologists.
More than 7,000 letters and stacks of scientific testimony protesting the project to build 300 homes and a golf course at Humbug could not convince Mr. Harding, however, to protect the valuable wetland by limiting the size and scope of the development.
Instead, after DEQ staff first denied the project, Mr. Harding okayed a modified permit last June that gives Made in Detroit a big green light to build right up to Humbug’s most sensitive areas.
Attacking Federal Rules
Mr. Harding also is known across the country for taking a pro-polluter line on federal environmental rules.
He is chief among those resisting new federal rules for controlling pollution from livestock factories, and for ensuring that industry does not concentrate toxic emissions in poor neighborhoods. The past couple of years also have been especially busy for Mr. Harding in undermining air quality laws and enforcement rules.
Michigan recently announced its intention to file its eleventh legal action against the U.S. Environmental Protection Agency’s new ozone standards. These standards would better measure ground-level smog, and require states to meet federal goals for reducing industrial emissions. In Michigan, as in other Midwest states, that means modernizing dirty coal-fired power plants built 25 to 40 years ago.
Respiratory illnesses, such as severe asthma attacks, are the major public health problem EPA is trying to solve with the new rules. In 1999, Michigan exceeded EPA’s new ozone standards on 228 different days, up significantly from 145 days in 1998, according to a January 2000 report from the Clean Air Network and the U.S. Public Interest Research Group.
Michigan families pay a high price for the dirty air. In 1998, poor air quality was the culprit behind 6,300 respiratory related emergency room visits and 280,000 asthma attacks, or $3 million worth of medical costs, according to the American Lung Association.
But Mr. Harding, in a letter to 17 other state environmental chiefs last spring, complained of EPA “second-guessing” the regulatory performance of the states. He invited the regulators — all embroiled in regulatory fights with EPA and tied politically to Texas Governor George Bush’s campaign for president — to join him and utility industry representatives at a meeting last April in Detroit. Their goal? To develop a joint proposal for changing, under the next U.S. president’s administration, the way EPA does air quality business.
Lana Pollack, director of the Michigan Environmental Council, says the meeting was a prime example of how state regulators no longer respect the proper boundaries between their public protection duty and the profit motives of the companies they are supposed to monitor. “No state regulator has established a more industry-cozy, anti-environmental record than Michigan’s DEQ chief,” she says.