Cleaning up the toxic sites in state, Oakland County

By Stacy Gittleman

One morning in December 2019, drivers commuting along I-696 near Madison Heights began calling in reports that there was a strange green substance oozing onto the highway. It turns out that green ooze was carcinogenic hexavalent chromium. It was leaking from the site of Electro Plating Services, a factory that processed metals like tin, copper since 1967, and had been ratcheting up environmental violations since 1996 for the improper handling of industrial waste.

In 2016, responding to complaints from residents, officials from the Michigan Department of Environmental Quality (MDEQ) issued an immediate cease-and-desist order for extreme mismanagement. Onsite, state environmental authorities found thousands of containers of toxic waste in a crumbling building where conditions were so bad it was feared the site would explode and emit poisonous gas into nearby residential areas. The state also discovered the owner, Gary Sayers, had been pouring gallons of chemical waste into onsite makeshift pits that went deep into the ground.

The U.S. Environmental Protection Agency (EPA) was called in to intervene. Its Emergency Response Branch from March to December 2017 spent more than $1.5 million removing hazardous waste from the business.

However, the EPA never placed the site on the National Priority List as a Superfund site.

Sayers, in November 2019, was convicted of operating an unlicensed hazardous waste storage facility, sentenced to one year in federal prison, and ordered to repay $1.5 million in restitution for the EPA's cleanup costs.

From December 2019 to October 2020, the EPA collected a total of 353,879 gallons of contaminated groundwater from the site and hauled it off-site for treatment and disposal. While effective, this method was not sustainable long-term, as it is both costly and resource intensive. In 2020, the state legislature approved $600,000 in demolition costs for the site from the budget. The building was razed in the spring of 2022. However, the EPA passed the buck for long-term remediation to the Michigan Department of Environment, Great Lakes and Energy (EGLE), formerly the DEQ. But the site remains low on the agency's clean-up list due to limited budget and staff, and with evidence that the site is clean enough, meaning that any existing chemicals are not in danger of migrating off the site, and there is no imminent threat of contaminating drinking water supplies.

Although the case of Electro Plating Services is one of the most drastic examples of what can happen when a legacy industrial business goes awry, it is just the tip of a toxic iceberg. EGLE maintains that there are over 24,000 contamination sites in Michigan. From the defunct dry cleaner or gas station up the street where a corroding underground tank may be lurking to the remnants of the long-defunct industrial site on the fringes of town, contaminated areas can be found in every corner of our state.

Of these sites – and the number keeps growing, as there are at least 14,000 sites in which there is no connection to a responsible party that can be identified – either it's unclear who caused the contamination or those responsible are no longer alive. These abandoned sites are considered “orphan” sites, and means that taxpayers will ultimately foot the bill for EGLE and the EPA to fund cleanups on the abandoned sites. With continued contamination sites continually being discovered, such as those contaminated with forever chemicals, or PFAS, this number is expected to keep going up.

Though Sayers was brought to justice, directly linking a polluter to a contaminated site, this has become the exception rather than the norm. Over the decades, Michigan's polluter pay laws, once regarded as the strictest in the nation, have eroded and instead were replaced with multi-million bonding measures in the 1980s and 1990s. According to state treasury reports, these funds have now gone dry.

The 1990s marked a shift in the way Michigan regulated polluters, according to Joshua Mosher, assistant director of EGLE's Remediation and Redevelopment Division, charged with the rehabilitation of contaminated properties in Michigan. Additionally, the division handles brownfield redevelopment and manages portions of the federal Superfund program, which is cleaning up 64 contaminated sites, including five sites in Oakland County.

In the early 1990s, Mosher said the state's Michigan Environmental Response Act mirrored a federal environmental regulation program that maintained that any property owner or operator who benefitted from that property was responsible for the contaminant management of that property. Environmentalists regarded this as a time when Michigan set the benchmark and was leading the country in stringent polluter pay laws.

In 1995, Mosher said Michigan recodified several statutes to mirror the Natural Resource Environmental Protection Act. This legislation included underground storage tank regulations.

"That changed ownership liability from a strict one where the owner and operator of a site were responsible for contamination to a causation-based liability scheme," Mosher explained. "This means that the party responsible for the activity causing the release of contaminants is the party who should pay for the response activities necessary to address the risks. Thirty years ago, you could say we cast a broader net of who was responsible for cleanup.

"Now, stipulations have been narrowed, and in turn, created orphan sites because we cannot identify who is responsible for a specific contaminant release,” Mosher continued. “Under the current law, due care provisions are in place that protect the owner from recrimination if they disclose to the state that their property is contaminated, and the owner knowingly did not cause that contamination. It allows the state and the owner to create a baseline assessment of the property, submit a contamination report to EGLE, and that the property owner does not become liable. The owner of the property is responsible for protecting the public from being exposed. The owner does not necessarily have to clean the contaminants off the site, but there must be onsite mitigation and containment of the contaminant."

In 1998, during the administration of Governor John Engler, 63 percent of Michigan voters passed The Clean Michigan Initiative (CMI), a $675 million bond program intended to clean up and redevelop contaminated sites, protect and improve water quality, prevent pollution, and among other goals, clean up contaminated sediments in lakes, rivers, and streams.

According to a March 2021 audit on the program's progress issued by the Michigan Office of the Auditor General, EGLE was authorized to use $570 million in bonds. As of September 2019, it had issued $532.4 million, expending $543.6 million since fiscal year 1999. To date, the state issued 17 CMI bonds to raise the $532.4 million for EGLE's programs and also issued $105 million of CMI bonds to fund projects within the State Department of Health and Human Services (DHHS) and the Department of Natural Resources (DNR). In addition to being obligated to repay $637.4 million, the state also paid bondholders $294.6 million in interest.

As it stands today, with all that has been spent, as of July 2020, the audit states that there were 14,539 identified prioritized sites on EGLE's Environmental Cleanup and Redevelopment Program. Of these sites, there are 274 priority sites where CMI funding will run out before cleanup will either be started or completed. They include 35 unfunded sites, 47 contaminated sites that have been placed on funding hold midway through a project cleanup, and 192 sites where CMI funding will be exhausted before a project's completion or during the monitoring phase of a completed project. About 15 sites in Oakland County fall into this category.

In Oakland County, as statewide, Mosher lamented that the biggest challenge EGLE faces lies not only in inadequate funding but having enough personnel and finding the right contractors to clean up and monitor each site. Many need years, and maybe a decade, of monitoring and testing after being placed into the state's contaminated site inventory.

In May of 2022, EGLE's fiscal cleanup funding report was submitted to the state House and Senate Appropriations Subcommittees on Natural Resources and EGLE and the state budget office. EGLE Senior Deputy Director Amy Epkey stated that there are now more than 16,000 sites where EGLE knows hazardous substances have been released, but with limited funds and personnel, the agency can only prioritize up to 400 sites at any given time. Additionally, there are more than 6,800 sites with underground storage tanks that have had more than 8,700 confirmed releases. Risks to human health and the environment from these releases continue to be monitored and evaluated and the risks remain unknown. According to the report, the state spent $53,615,643 on contaminated site cleanup efforts for fiscal year 2021, with $167,793,479 allocated for fiscal year 2022. The list includes 80 sites in Oakland County that range from landfills, automotive, appliance repair, and dry cleaning services, and the Oakland County International Airport in Waterford.

By May of 2022, Madison Height's Electroplating Service was prioritized and made the list. The total allocations for that project for 2022 are set at $3,343,079, with project completion slated by 2030.

Echoing Epkey's observation of the lack of boots on the ground to expedite cleanup efforts, Mosher explained, "In southeast Michigan alone, we only have one office for four counties. In any year, project managers have around 400 sites that they must mitigate, and they are not getting the resources they need to address all the issues. We keep on top of the sites that need the most attention. But we have remediated many sites around the state that are in the winding down phase and will just require some routine monitoring to confirm that contamination is either removed or fully managed and contained."

Mosher said sites where contamination is contained but remains on site remain on the inventory list just so the state can keep track of the site in the future.

"We do this knowing that we have taken care of the most egregious risks. We make sure that the safety measures to contain the contaminants remain in place. Maybe, in the long term, when funding is available, the site can someday be thoroughly cleaned, but honestly, we cannot bring a site to where it was before it was contaminated unless we have the right funding and resources."

Another prioritized site in this May 2022 report is the Franklin Village Plaza. Just up the street from the famed Franklin Cider Mill is a 90-year-old structure which houses a variety of small shops. Nearby is a lot where a Mobil gas station, dating back to the 1930s, once stood. On March 6, 2018, Franklin Village ordered a mandatory evacuation after toxic fumes were detected. MDEQ contracted a clean-up team to rip up the floor in a tailor's shop, uncovering a long-abandoned tank half-filled with a toxic, cancer-causing solvent.

In 2021, EGLE spent $280,226 on cleanup and monitoring of the sites, and the agency plans to close out operations there in 2028. The shuttered Mobil station is under remedial investigation for a potentially leaking underground tank. Funds to this project were allocated at $164,670 in fiscal year 2021, and $322,347 in fiscal year 2022. EGLE expects to complete the project by 2025.

Village of Franklin Administrator Roger Fraser said when state inspectors came to the site, they discovered on the property an underground tank that at one time contained some toxic acidic chemical, but it was empty. There were also some petroleum-based contaminants from the Mobil station. The soil and groundwater around the site were also tested for contaminants and none were detected. This was reassuring news, Fraser said, as all residents in the village are on well water. After the cause of the fumes was deciphered, businesses at the shopping plaza were allowed to resume operations within days.

"EGLE continues to monitor the air quality at the plaza building, and there's been no reoccurrence of any kind of fumes," said Fraser. "The groundwater that flows underneath the plaza and towards the Franklin River, which is a tributary to the Rouge River, also continues to be monitored. We accept EGLE's reports that there is no threat to either the wells or the air quality of any of the buildings downtown. So, we're functioning accordingly."

Multiply cleanup sites like the case in Franklin Village by the thousands, and it is easy to understand why right now, according to the Michigan Department of Treasury, there is no more bonding authorization under the CMI. What's more is that the department of treasury also reported there is $136.8 million in principal still outstanding for paying back the bond by this October, with debt service running through fiscal year 2040. The CMI debt service is approximately $24 million annually in fiscal years 2023-2026, then drops to approximately $7 million annually in fiscal years 2027-2033 before dropping to approximately $3.5 million annually in fiscal years 2034-2040, according to the Michigan Department of Treasury.

In their 2021 report, the Office of the Auditor General recommended: "Once CMI bond proceeds are exhausted, EGLE should consider the total cost for issuing and paying general obligation bonds as it continues to seek future funding sources."

It advised alternative funding, such as partnering with private investors, to minimize additional debt burdening Michigan taxpayers.

Jason Hayes, director of environmental policy with the conservative-leaning Mackinac Center for Public Policy, said it is time for the state to stop issuing bonds that cost taxpayers millions in interest. There are other funds the state can pull for site cleanup and agrees with the audit that the state cannot rely on costly bond issuances to clean up contaminated sites.

Agreeing with the assessment of the Michigan Auditor General, Hayes reiterates why the CMI was such a blunder. "The Mackinac Policy Center tends to push back on government spending," he said. "The CMI was a bad example on (how to fund environmental cleanup). Using bonds for such a project should never again come into consideration. Money should have been appropriated from the state budget, which is what everybody in real life must do. For example, if you are a homeowner and you want to do a bunch of improvement projects while you are paying for your children's college education and you want to buy a new car, you are not going to be able to afford all these things at once. The state needed to prioritize. We agree with the state Auditor General, who found that for every dollar spent on the CMI bond, the state was paying almost 50 cents in interest and other fees. Had the state just appropriated the funds from the general budget, we could have saved $300 million. How many more of these sites could have been cleaned with that money? We just threw it away on interest."

Outside of the bonds, there are additional funds available to pay for site cleanup in Michigan. They include the 1996 Cleanup and Redevelopment Fund which uses 75 percent of the state's unclaimed bottle deposit revenues collected under the Michigan Bottle Deposit Law. From this revenue stream, the fund in 2019 earned $43 million, in 2020 $32.2 million, and 2021 $81 million was collected for contaminated site cleanup. In 2021, EGLE Senior Deputy Director Amy Epkey said money from the bottle bill makes up about a third of the department's cleanup budget.

Additionally, the state in 2004 created the Refined Petroleum Fund as an addendum to the Federal Leaking Underground Storage Tank Corrective Action Fund. Money from this fund comes from fees of one cent per gallon which are imposed on sales of all refined petroleum products. This fund collects on average $60 million per year, and is used for petroleum spill cleanup operations. In addition, EGLE's Cleanup and Redevelopment Program receives over $32 million annually for petroleum-related cleanup activities.

In terms of leaking storage tanks, state records list about 900 sites in Oakland County, 37 of which are in Birmingham, Bloomfield Township and Bloomfield Hills. Some of those sites have been cleaned up, a few are listed as sites where the status has been undetermined, while the bulk of the sites call for some short-term remediation and monitoring by the state.

The most severely contaminated sites are placed on the National Priorities List under the federal Superfund program. Created in 1980 in response to releases of hazardous substances that may endanger public health or the environment, there are currently 64 Superfund sites in Michigan, which ranks fifth in having the most Superfund sites out of all 50 states. An additional 20 sites were previously on the list and have been deleted because all necessary response actions have been completed. There were no additions or deletions in fiscal year 2020.

According to a December 2021 U.S. Public Interest Research Group report on the nation's Superfund sites, of those 64 sites, 54 have reported that human exposure to contaminants has been contained, seven sites have insufficient data, and in three human exposure is not under control.

Though mostly paid for by the federal government until funding lapsed in 1996, Michigan must match of Superfund site costs by 10 percent and cover all costs of the installed remedy. According to EGLE reports, this costs state taxpayers $6 million annually. Since the beginning of the Superfund program, approximately $430 million in federal funding has been committed to Michigan Superfund sites through grants, matched with $44 million in state grants. In fiscal year 2019, more than $8.3 million in federal funds were spent on cleanup actions at six Superfund sites in Michigan with a state match amount of over $928,000.

Southeast Michigan and metro Detroit has the most Superfund sites in the state of Michigan. Wayne County has the most, at 111, followed by 65 Superfund sites in Oakland County, and 18 in Macomb County.

The most notable Oakland County Superfund sites include:

Jones & Laughlin (J & L) Landfill, located in Rochester Hills, Michigan, is a 17-acre site one mile from the Clinton River. A large residential area exists just south of the site across Hamlin Road within 200 feet of the site. Placed on the Superfund National Priority list in 1994, the EPA capped the landfill in 1997 and the site is continually monitored for methane emissions. Though groundwater samplings from the mid- and late-1990s indicated elevated levels of benzene, aluminum, arsenic, iron, lead, and barium, it is located just three miles away from where 1,500 people at the time depended on well water.

Hi-Mill Manufacturing is a 4.5-acre site in Highland Township surrounded by the Highland Recreation State Area and M-59. Beginning in 1945, the plant manufactured fabricated copper, aluminum, and brass tubing parts and fittings. Operations included cutting, machining, forming, shaping, and soldering raw tubing and fabricated tubing components. Trichloroethylene (TCE) was used in the degreasing process for many years. TCE is known to harm the immune and central nervous systems, kidney, liver, male reproductive organs, and the developing embryo/fetus. Hi-Hill until the mid-1980's deposited wastewater that contained residues of acids and heavy metals into unlined lagoons on the site from 1946 until the mid-1980s. In 1988, an underground TCE storage tank ruptured and contaminated the groundwater. Classified as a Superfund site in 1993, cleanup work commenced in 1995, and work, including cleanup, groundwater cleaning and monitoring, and completion of onsite work is set for 2025.

The Rose Township Cemetery Dump, a four-acre site where illegal industrial dumping in the late 1960s resulted in up to 5,000 waste barrels. The state treated tens of thousands of cubic yards of PCB-laden through incineration in 1992. The site's long-term remedy included fencing and excavation of around 250 drums and drum fragments and 10,000 cubic yards of contaminated soils. Construction of the remedy finished in 1989, and the state determined that the removal of the source of contamination had addressed soil and groundwater contamination. The EPA took the site off the national priority list in 1995.

The Springfield Township Dump in Davisburg is a four-acre site where from 1966-1969 industries illegally dumped around 1,500 drums containing paint sludges, solvents, polychlorinated biphenyls (PCBs), oils, and grease. There are 25 residences located within one mile of the site, with the nearest being about 800-feet from the site. The EPA categorized the area as a Superfund site in 1983. Groundwater extraction and treatment system began operation in 1994 after testing revealed that the groundwater aquifer beneath the site, in the path of several residential wells, is contaminated with both organic and inorganic contaminants. The Oakland County Health Department routinely samples a group of nearby residential wells as part of the monitoring for the site. Samples have shown low levels of site contaminants and the health department has restricted groundwater well installations on several properties around the site. Some residents have replaced their own wells as a result of the contamination, but none of the concentrations in residential wells have exceeded applicable criteria to date. Monitoring by the EPA continues through 2025.

Beyond Oakland County, the most notorious Superfund site in Michigan is the Dow Chemical Plant located in Midland. The plant produced over 1,000 different organic and inorganic chemicals starting in the early 1900s. Direct discharge of these chemicals into the Tittabawassee River and downstream resulted in elevated dioxin levels for decades.

Past waste disposal practices at the Midland Plant have resulted in on and off-site contamination that settled in some sediment and built up in some riverbanks and floodplain areas. Off-site contamination extends over 50 miles downstream through the Tittabawassee and Saginaw rivers and into the Saginaw Bay. Cleanup efforts by the EPA and EGLE are ongoing, and flood events, such as the one the region endured in 2021, are not helping. The Dow site is one of 800 Superfund sites around the nation at risk of repeated flooding.

EGLE Deputy Director James Clift said that the Dow Chemical Plant site is the most acute example of what can go wrong when a contaminated site rests on a floodplain, and EGLE cannot pinpoint or predict which specific sites may next fall victim to the next downpour.

"The Dow Chemical Plant rests directly on the Tittabawassee River and floodwaters can redistribute contaminants around the floodplain," explained Clift. "EGLE has monitored, mapped and remapped this site multiple times over its history. Other troublesome sites on floodplains include contamination along the Pine and Kalamazoo rivers, where floodwaters can disturb deposits of PCBs in the sediment of a riverbed."

With the passage of the recent Inflation Reduction Act, there may be a replenishment of the Superfund coffers, according to Emily Rogers, on staff at the U.S. Public Interest Research Group (PIRG) as an advocate for the organization's Zero Out Toxics campaign. The act includes an oil excise tax as well as a chemical excise tax to fund Superfund toxic waste site cleanups nationwide and will reinstate one of several "polluter pay" taxes that was allowed to lapse in 1995, squeezing off funding to most Superfund projects. Rogers said that over the next 10 years, the reinstated “polluter pays taxes” will provide an estimated $14.5 billion in funding to shore up toxic waste cleanups.

"One in six Americans live within three miles of a Superfund toxic waste site," said Rogers, who counts herself in that category from her home in Vermont. "The passage of the Inflation Reduction Act is significant because we shouldn't be holding people who didn't create that pollution liable for the cleanup of pollution, especially when we know that communities are bearing the health burden of being exposed to toxic chemicals at these sites.

Rogers continued: "PIRG supports legislation that focuses on finding the original polluter, and if that polluter cannot be found, we focus on bringing into existence legislation that preempts a situation where a polluter down the road in the future cannot be identified. We advocate for polluter pay legislation such as what will be found in the Inflation Reduction Act."

Sean McBrearty, legislative and policy director of Clean Water Action, said the CMI was a useful tool but was not large enough to match the ever-expanding list of contaminated sites in need of cleanup attention.

"And when you add in places contaminated with PFAS, that number is only going to grow," noted McBrearty. "EGLE right now is only equipped with the personnel to partially cleanup a few hundred sites a year. With the number of contaminated sites the state is finding, this model is just not sustainable."

McBrearty said budget structuring right now leaves EGLE hamstrung in tackling contamination sites at an aggressive pace and points to taxing businesses and potential polluters as a possible remedy. He added that his organization advocates for an examination of business tax credits offered in the Michigan Economic Growth Authority (MEGA) program. An August 2020 analysis by the Mackinac Center for Public Policy reported that the refundable tax credit program offered corporations more than $14 billion in state tax incentives, money that McBrearty said, "These corporations don't need."

"In Michigan, we pay out more to businesses than we are taking in,” McBrearty said. “Clean Water Action has been pushing for revenue solutions that will make everyone pay their fair share (when it comes to polluters) so we can afford the government programs we need."

Several state senators in Lansing want to see a return of stringent polluter pay laws and have drafted legislation that has yet to receive a discussion on the House floor. In 2021, State Rep. Yousef Rabhi (D-Ann Arbor) introduced House Bill 4314, which would require polluters to restore land and water to standards good enough for residential land use or drinking water. Current law requires only that access be limited and Michigan has more than 3,000 sites with restrictions on use of contaminated land or groundwater. The bill was signed by 49 of 109 Michigan House members as co-sponsors. In 2019, state Senator Jeff Irwin (D-Ann Arbor) introduced similar legislation.

"In Michigan, the responsibility of the polluter has been reduced to containment and limiting human exposure," said Rabhi, speaking to Downtown Newsmagazine the day that Tribar reported that it had leaked 10,000 gallons of a five percent hexavalent-chromium plating solution into the Wixom sewer system. The wastewater passes through Wixom's sewage plant before discharging into Norton Creek, flowing to the Huron River upstream of where Ann Arbor draws most of its drinking water.

"We've had the case already of the 1,4 dioxane plume in the city of Ann Arbor running into our groundwater,” Rabhi said. “Under the current state law, the responsibility of the polluter is to limit the spread of contamination. Paying people who are on well water to hook up to city municipal water is one way to solve the problem, but what that means is that any contamination plume can be just written off to limit human exposure. Are we just supposed to live with the permanent contamination of an aquifer? To me, this is a huge problem and the reason why Ann Arbor is in the state we are in now, that we've had to close many wells. And now, as of today, there's a contaminant plume in the Huron River, where most in Ann Arbor, including those that switched from well to municipal water, get their water supply."

Rahbi said Ann Arbor is just one example of other communities that have seen their rivers, wetlands and aquifers contaminated by industrial polluters.

"We cannot live with contaminated sites. At some point we have to clean them up and bring the drinking water or the water back to drinking water standards wherever it is scientifically possible. It's just a matter of putting the resources in place and getting it done."