Over 100 Years of Contamination
Groundwater contamination in Michigan reaches back over a century. For example, the Antrim Iron Works in Mancelona in 1910 began discharging residues of chemicals recovered from its charcoal production process to an on-site depression that gradually released wastes to groundwater. Although the plant closed in 1944, extensive contamination lingered for generations. By 1960, a plume of groundwater contamination at the site was estimated to be three miles long and a half-mile wide. Placed on the national Superfund list in 1982, the Tar Lake site remains contaminated despite excavation of some soils and pumping of groundwater. In 2013, the Environmental Protection Agency (EPA) determined additional soil excavation and expanded groundwater treatment was required.
Despite lessons learned from widespread contamination of surface water in the mid-20thCentury, policies of Michigan and many other states failed to expand groundwater protections. In a 1963 report, the U.S. Geological Survey noted, “Pollution of rivers and streams, especially in southern Michigan, has placed many communities and other water users in the ironic position of having available adequate quantities of surface water, but of a quality unfit for most uses. Similar pollution of ground water must be avoided.” Instead, as federal and state laws forced cleanup of surface waters, groundwater contamination accelerated.
The staff of the Michigan Water Resources Commission was sufficiently concerned in 1958 to propose a regulation requiring “all toxic and offensive wastes…shall be rendered innocuous by adequate treatment or by sufficient dilution before being permitted to enter the ground.” To support the proposal, the staff provided a list of 16 groundwater pollution sites. Despite this, the Commission tabled the proposed rule.
The emergency evacuation of the Love Canal neighborhood in Niagara Falls, New York in 1978 because of buried chemical wastes brought public attention to the crisis of contaminated groundwater. Congress passed the federal Superfund law, intended to fund cleanup of the worst sites, in 1980, enabling states to inventory and request cleanup assistance. Michigan submitted a list of over 80 sites, the second most of any state. But the full inventory was staggering. The tally included 63 sites that were fouling drinking water supplies, 649 sites of known or suspected groundwater contamination, and an estimated 50,000 sites with contamination potential. The more state authorities looked, the more contamination they found.
The passage of a solid waste management law in 1978 and a hazardous waste management law in 1979 curbed two of the principal threats to groundwater – landfills and spills of hazardous waste materials. In 1980, the department of natural resources finally promulgated the groundwater discharge rules the water resources commission had set aside in 1958. Regulations affecting petroleum storage in underground storage tanks that took effect in the late 1980s closed another loophole in groundwater protection. But it was too late to prevent many unnecessary health risks, an enormous cleanup bill to taxpayers, and a legacy of groundwater abuse that persists in widespread contamination.
Contaminated Sites and Sacrifice Zones
In 1995, Governor John Engler and the Legislature delivered another blow to groundwater. They removed from state law the presumption that polluted groundwater should be cleaned. One result is a long list of “sacrifice zones,” or sites where groundwater use is restricted or prohibited. In many locations, rather than attempting to clean up contaminated groundwater, the parties who own or seek to redevelop contaminated sites are allowed to leave the contaminants in place and instead work with the state to restrict access to it. An analogous policy for surface water would be to bar use of or access to polluted rivers and lakes – something the public would likely not tolerate.
State law sanctions two types of contaminated site exposure controls — restrictive covenants, which run with an individual property and bar certain uses of contaminated property, and institutional controls. Controls typically restrict uses on multiple properties and can affect large zones of groundwater. They include local ordinances or state laws and regulations that limit or prohibit the use of contaminated groundwater, prohibit the raising of livestock, prohibit development in certain locations, or restrict property to certain uses.
As of mid-February 2018, DEQ records showed 3,394 land use restrictions at contaminated sites across the state. Nearly 2,000 additional restrictions were on a list to be plotted and mapped. Of the 3,394 restrictions already recorded, 2,355 were restrictions on groundwater use. Some of the groundwater areas affected are several square miles in size. In effect, for the near future, the state has written off these areas of groundwater. Continuation of this approach will foreclose the use of significant groundwater resources by future generations.
Applicable Laws
Today, rather than protecting groundwater as a whole – or water throughout the hydrological cycle – Michigan law emphasizes regulation of categories of pollution sources that affect groundwater. This backward approach to resource protection blinds the state to the overall condition of Michigan’s groundwater – and artificially divides groundwater from the rest of the water cycle. The result is a degraded resource.
Federal laws do not fill the breach. The Clean Water Act does not generally apply to groundwater. The Safe Drinking Water Act provides some funding to states to assist communities in assessing threats to community water supplies, including groundwater supplies and to develop wellhead protection plans. But it does not provide a policy or regulate many groundwater contamination sources.
State law does lay down some groundwater protections. Michigan water quality protections in theory extend to groundwater. As defined in state statute, “Waters of the state” means groundwaters, lakes, rivers, streams, and all other watercourses and waters, including the Great Lakes within Michigan’s boundaries.
Michigan’s Natural Resources and Environmental Protection Act (NREPA), Part 327, declares that groundwater and surface water are one single hydrologic system. Groundwater can recharge surface water, and surface water on occasion loses water to and recharges groundwater. The waters of the state should be considered one resource for any groundwater protection regulation or standard.
Part 327 recognizes water in the Great Lakes basin and in Michigan is held in public trust for the benefit of citizens. This principle should govern every water statute, and any statute regulating activities that protect groundwater, to assure that contaminants do not impair the public trust in connected wetlands, creeks, streams, and lakes, and Great Lakes.
Because land use directly affects groundwater quality, land uses should be managed to protect groundwater quantity and quality, connected surface waters, and the public trust at least in hydrologically connected public trust streams and lakes.
Dave Dempsey, Senior Advisor
Despite these legal provisions, in practice, Michigan treats groundwater and surface water differently. Drinking water standards apply to water drawn from subsurface sources and cleanup standards apply to contaminated groundwater, but ambient water quality standards do not apply.
As an out-of-sight, out-of-mind resource, groundwater protection depends on our laws reflecting the science of our interconnected surface and groundwaters. Our laws need to catch up to science so we don’t continue to abuse this precious resource.
