Tag: FLOW

FLOW Praises Attorney General for Restoring Rule of Law on Line 5

Published on March 28th, 2019 by FLOW Editor - Reports & Media Releases

FOR IMMEDIATE RELEASE: March 28, 2019

Liz Kirkwood, FLOW Executive Director Email:Liz@FLOWforWater.org
Office: (231) 944-1568, Cell: (570) 872-4956 Web: www.FLOWforWater.org

Jim Olson, FLOW Founder and President Email:olson@envlaw.com
Cell: (231) 499-8831

Dave Dempsey, FLOW Senior Advisor Email:Dave@FLOWforWater.org
(612) 703-2720

FLOW supports attorney general’s process and opinion, which is binding on state agencies and rejects the fatally flawed law and undermines side agreements on Enbridge oil pipelines, proposed tunnel in Mackinac Straits

In a major step toward restoring the rule of law, Michigan Attorney General Dana Nessel issued an opinion today declaring unconstitutional a hastily crafted law that sought to give away Great Lakes public trust bottomlands to Enbridge for 99 years for a private oil tunnel, while allowing the aged, dangerous existing “Line 5” oil pipelines in the Straits to continue operating for another decade as the tunnel is considered and possibly built.

The move comes in response to a formal request by Gov. Gretchen Whitmer and is critical to unpacking the layers of problems with the law creating the Mackinac Straits Corridor Authority that the lame-duck legislature rushed through in late 2018.

“We applaud Attorney General Nessel for clearly recognizing the legislative overreach, restoring the rule of law, and stopping the attack on the Great Lakes and the state constitution, which demands that the state’s air, water, and natural resources are treated and protected as ‘paramount,’” said Liz Kirkwood, an environmental attorney and Executive Director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City.

The attorney general’s opinion on Public Act 359 is binding on state agencies and voids the tunnel agreement called for by the law, and also nullifies the legal effect of the side agreements reached between the state of Michigan under then-Gov. Rick Snyder and Line 5-owner Enbridge. Those agreements allowed continued oil pumping through the Straits, where Lake Michigan meets Lake Huron, and an easement and 99-year lease of Great Lakes public bottomlands to Canadian-based Enbridge for private control of the tunnel for its own gain.

Public Act 359 and the related agreements for a tunnel and continued use of the existing, flawed Line 5 were not authorized under the standards of public trust law; the state and Enbridge flouted the Great Lakes Submerged Lands Act (GLSLA) that requires transfers and agreements for occupancy of the soils of under the Great Lakes by trying to avoid and ignore this most basic law and public trust principles.

Public Act 359 and the side agreements are peppered with other serious problems, most of which are covered by the questions the Governor asked the Attorney General to answer, which include:

Adding the tunnel and corridor authority to the 1952 law that created the Mackinac Bridge Authority goes far beyond the original public purpose to build a public bridge;
Establishing a term for members of the board of the corridor authority that exceeds the 4-year limit under Article III of the Michigan Constitution;
Violating provisions of the state constitution that prohibit fostering private or special purposes, the commingling of the government to aid primarily private projects, the appropriation of public property for private purposes, and the entanglement of the credit and taxpayers of the State for primarily private purposes.

“We hope this critical first step by the Attorney General will be followed by an immediate and full review of the Snyder administration’s and agencies’ deliberate evasion of the rule of law and mishandling of the grave and continuing risks of the existing Line 5, and the real and imminent threat to the Straits of Mackinac, towns and cities like Mackinac Island, tribal fishing interests, private property interests, businesses, and the rights of the public in the soils and waters of the Great Lakes,” said Olson.

FLOW recommends that Gov. Whitmer take immediate action to end the massive threat posed by the existing Line 5 in the Straits of Mackinac in a swift and orderly fashion based on the rule of law under our state constitution, statutes, and the public trust doctrine in the Great Lakes, including by:

Acknowledging that State of Michigan agencies are bound by the attorney general’s opinion.
Sending a letter to Enbridge indicating that the company should decide for itself, if it wants to build a new oil tunnel, and apply, if it chooses under the Great Lakes to construct a tunnel under the rule of law. The rule of law requires a full consideration of the risk to the paramount public rights in the soils and waters of the Great Lakes, and a showing that the company has no prudent and feasible alternatives to using the Great Lakes as a shortcut for western Canadian oil on its way to refineries in eastern Canada as well as overseas markets. If the company does not chose to do this, or cannot satisfy these mandatory requirements that protect the Great Lakes, then it should choose to use other parts of its several-thousand mile system.
Starting the process to decommission the 66-year-old Line 5 pipelines in the Straits of Mackinac, which are operating without lawful authority, in violation of the public trust and GLSLA, and in violation of their 1953 easement granted by the state. If Enbridge chooses to continue operating the existing Line 5 in the future, it can apply under the GLSLA for new authority to continue using Line 5 if it can demonstrate little risk and no feasible and prudent alternative to the unacceptable existing Line 5, but the state is not obligated to agree.

“Public Act 359, coupled with the State’s public entanglement with Enbridge, has put private gain and economic interests above the State’s and public’s paramount trust interest in the waters and soils of the Great Lakes,” said Olson. “The unconstitutional law and entangled state and Enbridge agreements represent one of the largest, if not largest, threats in the state’s history to the state’s ownership and public trust duty to protect the public’s rights and uses from private takeover or harm to the Great Lakes.”

Taking Action on the “Forever Chemicals”

Published on March 28th, 2019 by FLOW Editor - Blog Posts

Governor Whitmer’s directive Tuesday to the Department of Environmental Quality to develop an enforceable state drinking water standard for toxic PFAS chemicals is a welcome step. It signals that her Administration believes the health of Michigan citizens and the environment is not something to be left to foot-dragging federal officials, and that she is actively engaged in combating this threat.

“All Michiganders deserve to know that we are prioritizing their health and are working every day to protect the water that is coming out of their taps,” Whitmer said.

“As a result, Michigan will begin the process to establish PFAS drinking water standards that protect public health and the environment. Michigan has long advocated that the federal government establish national standards to protect the nation’s water from PFAS contamination, but we can no longer wait for the Trump Administration to act.” She set a deadline of October 1, 2019 for the standards.

PFAS compounds are a group of emerging and potentially harmful contaminants used in thousands of applications globally including firefighting foam, food packaging, and many other consumer products. These compounds also are used by industries such as tanneries, metal platers, and clothing manufacturers.

The state oversaw the sampling of 1,114 public water systems, 461 schools that operate their own wells, and 17 tribal water systems. Levels of PFAS below 10 parts per trillion (ppt) were detected in 7 percent of systems tested. PFAS levels between 10 and 70 ppt were detected in 3 percent of systems tested.

“PFAS are extremely toxic ‘forever chemicals’ contaminating far too many Michiganders’ tap water. By pushing for strong standards, the Governor is taking an important step to protect public health — but residents, particularly children and pregnant women — are being hurt by this chemical today. Fast action is needed to protect the state from the mounting health crisis caused by widespread drinking water contamination,” said Cyndi Roper, Michigan Senior Policy Advocate for the Natural Resources Defense Council.

The announcement was also important because once the federal government finally acts, a bad law passed by the Michigan Legislature in last year’s lame duck session could complicate the state’s efforts to set a protective standard. That bad law prevents Michigan from adopting standards more protective than federal limits unless the state can show “clear and convincing” evidence that it is needed, a high legal bar. By acting before a federal limit is in place, the state can use the best science to set a protective standard.

Line 5 – Public Trust and Risk Management

Published on March 19th, 2019 by FLOW Editor - Blog Posts, Public Trust Tuesday

This is the first in a series of essays by FLOW board member Rick Kane on the vital issues of risk management and the responsibilities of public officials under the public trust doctrine. The issue has special meaning in light of the risks posed by the twin Enbridge pipelines that convey 23 million gallons of petroleum products through the Straits of Mackinac daily. Rick is the former Director of Security, Environment, Transportation Safety and Emergency Services for Rhodia, North America. He is certified in environmental, hazardous materials, and security management, and is a graduate of the University of Michigan and University of Dallas.

Managing Risk and the Public Trust

Every day, we manage risk in our personal lives and for our families. I wonder what the weather will be like today; what should I wear, or do I need to prepare differently for my trip? There are consequences for not preparing, like getting wet, but the weather forecaster helps by providing the probability for rain and threat of severe weather. We listen, assess the risks, consider alternatives, and make a decision.

Envisioning scenarios, forecasting, and assessing risk are management activities performed in a variety of organizations. If the risks are too high, we take action to reduce them or, better yet, implement an alternative that eliminates the risk entirely. Alternatives analysis is a known but underutilized approach. Too often, organizations reduce risk by making incremental changes and not by using an alternative that could eliminate it. “It is not acceptable to harm people when there are reasonable alternatives - - - - It is not acceptable to harm the environment when there are reasonable alternatives.” In her book, Making Better Environmental Decisions, An Alternative to Risk Assessment, scientist and risk expert Mary O'Brien promotes alternatives - not just accepting risk assessments and incremental risk reduction strategies, i.e. identify and implement risk elimination alternatives.

For the big risks, we depend on elected officials and government regulators to take action in the best interest of public safety, environmental protection and economic interests. The Public Trust Doctrine is an important legal principle that they are required to apply to protect the waters of the Great Lakes. Risk and alternatives assessments are vital inputs needed to reach appropriate decisions under public trust law.

The Public Trust Doctrine holds that government has a solemn obligation to protect the waters of the Great Lakes in perpetuity for public use and enjoyment. The state serves as a trustee and is accountable for managing the waters for the benefit of current and future generations. Any private, public, or commercial existing or proposed use, diversion, or discharge cannot cause harm by materially reducing the flow, changing the levels, or polluting the waters. Those who seek to use, continue to divert, or alter the waters have the burden of proof to show they will not impair, pollute, or cause harm, or the proposed action is not permitted. Under the public trust, the waters can never be controlled by or transferred to private interests for private purposes or gain. Public rights cannot be alienated or subordinated by our governments to special private interests. This means that all reasonable private use and public uses may be accommodated so long as the public trust waters and ecosystem are not harmed and paramount public right to public uses are not subordinated or impaired.

For government officials, it is a duty to comply with the Public Trust Doctrine and ensure that the principles are followed. Citizens should understand public trust and hold their elected officials accountable for protecting the waters of the Great Lakes on their behalf and for future generations.

It Takes All Kinds

Growing up in the chemical industry, working in the private, government and non-government sectors taught me that a balance between the sectors is required to obtain feasible and acceptable outcomes. Private companies cannot be relied upon to self-regulate as not all of them have everyone’s best interest in mind. But private sector technical experts are positioned to identify feasible, safer technologies and alternatives. They may also need to be pushed to implement them by shareholders and regulators. Elected officials and government regulators can ensure that the competitive field is level for industry players and that companies are following the rules.

But there are cases where rules go too far, resulting in unintended consequences. Professional societies and standard-setting organizations provide direction to scientists, engineers, and member professionals on ethics and best practices that they should be applying on the job; strong, ethical professionals make strong organizations. And non-government organizations (NGOs) promote public, social, and long-range goals, but there must also be a balance and analysis for unintended consequences.

Taking a systems or macro/micro view is also very important in assessing risk and alternatives. Limiting the boundaries of study or scope prematurely can result in flawed and fatal conclusions. Here is an example that affected a large part of the world.

When Things Go Wrong, and Hindsight Is 20/20

Risk management involves the use of simple to very complex methodologies. However, they all depend on a proper definition of the scope of study, the system, relevant facts, key assumptions, and taking action to fill in important information gaps. Flawed assessments result when the scope of studies are too limited, methodologies are inappropriately modified or faulty, biased assumptions are used. O'Brien’s book provides an excellent overview on where risk assessments can go wrong.

The Daiichi Nuclear Power Plant Disaster was the second worst in history, just behind the April 1986 Chernobyl disaster. We use the Fukushima incident in teaching risk and process safety management. The Daiichi nuclear reactors were located on the Japanese coast and designed to withstand an earthquake and tsunami. The actual earthquake was larger than the safety design basis and the tsunami higher. The earthquake/tsunami triggered a number of failures that all had the same origin, in risk analysis terminology, “a common cause failure” – the earthquake/tsunami.

For safety, the reactors had a “layered or defense-in-depth” design to enable a safe shutdown in emergencies. But:

1st line - electrical supply from off-site to power the cooling water pumps, this supply was lost in the initial earthquake.
2nd line - emergency generators installed with the electrical switchgear in the basement, which flooded along with the generator fuel tanks when the tsunami hit.
3rd line – the battery back-up system did not have enough capacity to enable completion of the shutdown.
And the emergency response was delayed because the company and country thought they could handle the incident on their own and did not want to admit how bad things really were.

In hindsight, the consequences of a nuclear meltdown were known, but could a better assessment have been done for the threat of locating the facility near the coast in an earthquake, tsunami prone area? What about the vulnerability analysis on the emergency shutdown systems and consideration of common cause failures? Was the “worst-case scenario” analysis faulty or biased for some reason? Today, parts of the area are still uninhabitable, although some residents have recently begun to return even when warned that radiation levels are still above safe levels. What next as this disaster continues?

Acceptable risk levels are based on the stakeholder’s tolerance for the risk. For example, for some citizens, an acceptable flood risk might be once every 500 years, while the acceptable risk of a human fatality from an industrial accident might be less than the probability from natural causes, say one in one million.

Risk assessments may be required to comply with federal, state, and/or local laws, insurance company policies, or company procedures. There are ethical principles: you cannot impose risk on someone else, and elected officials and government regulators have a duty to protect constituents and the environment. If you cannot live with a risk because the consequences are too high, then you must identify and implement an acceptable alternative. A Michigan high-risk and controversial example is the Enbridge pipeline.

Here are key terms in risk management:

Risk is a measure of human injury, environmental damage, or economic loss in terms of the likelihood that an incident will occur (probability) and the magnitude of the injury or loss (consequence).

Risk = Probability x Consequence

Probability can be further defined as a function of the threat, an event with the potential to cause loss or damage and the vulnerability, which is any weakness in the system or asset, that can be affected or exploited by accidental, natural, or man-made causes resulting in the harm. Thus, risk can then also be defined as:

Risk = Threat x Vulnerability x Consequence

Toxicological Risk Assessments for human health and living organisms define threat and vulnerability in terms of exposure and dose-response assessments to a harmful substance.
An Exposure assessment covers the most significant sources of environmental exposures, population potentially exposed, and concerns about cumulative or multiple exposures.
For a dose-response assessment, a dose-response curve for the route and level of exposure observed is developed and compared to the expected human or living organism exposure in the environment.
Risk assessments follow a stepwise process and can be a qualitative, judgement-based analysis, or a complex quantitative mathematical analysis.
Scope, System Boundaries, Macro/Micro, and Dynamics- When conducting a risk assessment, the definition of the scope (subject of study), system boundaries, and dynamics are extremely important. Events occurring outside of the boundaries and transitions affect risk. Major risks can be transient and occur during take-off and landing, start-up and shutdown, transition from one physical state to another, movement from one place to another, under certain weather conditions, and so on. AIChE, Center for Chemical Process Safety
The risk assessment process is known as Hazard Identification & Risk Assessment (HIRA, shown below). If the level of risk after one pass is not acceptable, risk reduction measures are added, and the process is repeated until an acceptable level of risk level is achieved; if not, a better alternative is pursued, and the current approach abandoned.

The Enbridge Pipeline - Line 5 Across the State of Michigan

Enbridge’s Line 5 is a 66-year-old pipeline that transports crude oil and natural gas liquids (NGLs) across the State of Michigan from Superior, Wisconsin to Sarnia, Ontario. From Superior to St. Ignace, Michigan, Line 5 is a 30-inch pipeline but divides into two 20-inch pipelines which then pass along the bottom of the Straits of Mackinac and merge back into a 30-inch pipeline west of Mackinaw City to Sarnia. Many studies have been conducted on the 20-inch pipelines at the Straits covering environmental and economic risks, pipeline mechanical integrity, structural modifications, failure modes, and numerous legal issues. And recently, the State of Michigan signed a new agreement for a study on replacing the twin pipelines with a new pipeline and tunnel under the Straits. Information can be found at on the FLOW and Michigan Pipeline Safety Advisory Board websites.

The Streetlight Effect

The streetlight effect, or the drunkard's search principle, is a type of observational bias that occurs when people only search for something where it is easiest to look. Both names refer to a well-known joke:

A policeman sees a drunk man searching for something under a streetlight and asks what the drunk has lost. He says he lost his keys, and they both look under the streetlight together. After a few minutes, the policeman asks if he is sure he lost them here, and the drunk replies no, and that he lost them in the park. The police officer asks why he is searching here, and the drunk replies, "this is where the light is."

The risk analyses have primarily focused on the twin 20-inch pipelines and consequences of a crude oil release. However, the system risk must include the entire pipeline and products transported. The design, fabrication and protection technologies of 30-inch pipelines above and below the Straits are at lower standards than the 20-inch pipelines. There have been at least 29 leaks in Line 5 and a history of ongoing repairs and patching. The replacement of the 30-inch pipeline would be a huge expense and most likely be implemented after a tunnel project is started. The risks and lack of discussion (unknowns to the public outside of the Straits) were previously noted by FLOW. Living Along Enbridge Line 5 in Michigan. In only looking at the problem as being under the Straits, consider the allegory "The Street Light Effect."

A Confined Scope– assessments with scopes that are too narrowly defined restrict the consideration of alternatives and opportunities to eliminate risk. There are continuing strong arguments that feasible alternatives to Line 5 exist and that the pipeline can be decommissioned on a priority basis. This analysis is beyond the scope of this article, but details can be found at: FLOW Alternatives Report 2015

Poor System Definition - system boundaries for Line 5 risk assessments have been limited to the 20-inch pipelines, as this is where the State of Michigan has authority and control over the Mackinac Straits bottomlands, i.e. the system study boundary is being set where there is legal control, not where the full existence of risk occurs. This in turn establishes a crude oil release as the primary threat because the consequences of a natural gas liquids (NGLs), (a mixture of largely propane with some ethane and butane), release would be small in comparison. Thus, this is a legally defined system and not one based on Line 5 system risk to human safety, the ecosystem, and economy. An NGL release poses a major risk to human safety and infrastructure along the entire Line 5 route. The risk is not transparent to the citizens of Michigan (only looking under the streetlight); they are not provided information on known unknowns and a consideration of possible unknown unknowns.

In terms of the risk equation- Risk = Threat x Vulnerability x Consequence

What are the consequences, threats, and vulnerabilities outside of the Straits? For example, the impact of an NGLs leak.

Consequences - Line 5 travels near several populated areas: Ironwood, Manistique, Engadine, Naubinway, St. Ignace, Mackinaw City, Indian River, West Branch, Linwood, Bay City, Vassar, and Marysville, Michigan, and it transports NGLs about 20-30% of the time. NGLs are a liquid under Line 5 operating conditions but would flash into a vapor cloud if a leak occurred. According to the Dynamic Risk Assessment Systems, Inc. study contracted by the Michigan Pipeline Safety Advisory Board (MPSAB), a large underwater release under the Straits could create a flame envelope of just under one mile. But what if you are living or traveling near Line 5 upstream or downstream of the Straits? A ground level release and fireball could be much larger as the pipeline pressure is higher and distance between emergency shutoff valves greater.

For a crude oil release, Line 5 crosses nearly 400 streams and wetlands and runs near many other sensitive public and environmental areas. Studies conducted for the state designate 74 water-crossing locations as “prioritized,” indicating sensitive areas vulnerable to a spill and including endangered species habitats and sites near drinking-water intake pipes. Some of the waterways include the renowned AuSable, Sturgeon, Manistique, and Rapid rivers, and the Upper Peninsula’s Lake Gogebic.

Defining the system in terms of legally controlled boundaries results in the risk to areas outside of the Straits being overlooked. In addition, the December 2018 Enbridge-State agreement enables threat to continue until at least 2024 as tunnel studies are conducted, and beyond if a tunnel project is launched. Meanwhile, the threats outside of the Straits continue.

Vulnerability to failures outside of the Straits have many known unknowns and possible unknown unknowns due to different operating conditions, design and maintenance and inspection programs, and environmental exposure conditions. For the public, there should be many questions, but unfortunately, with the focus on only the Straits, under the street light, citizens do not know that they should be asking safety questions.

Here Are Some Starting Questions

What are the risks for a release upstream or downstream of the Straits, especially for NGLs? What is the safety risk to populated areas from a fireball and the lakes and rivers to a crude oil spill? What are the plans to mitigate the risks now, with and without a tunnel project?

Rick Kane, FLOW Board Member

Based on the agreement signed by the State, current operations at the Straits can continue to 2024 and beyond with minimal additional monitoring and on-site emergency response. Why are “extraordinary” emergency response measures not required to counter the extreme consequences that would occur at the Straits? This is a normal requirement in other high consequence, non-mitigated risk situations.

What are the plans for the entire pipeline system, especially outside of the Straits where the design and mechanical integrity is known to be less than at the Straits? Should citizens expect a segment by segment replacement as was done on Line 6B/78 in southern Michigan?

Michigan Groundwater Policy: A History

Published on March 15th, 2019 by FLOW Editor - Blog Posts

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-20^thCentury, 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.

PFAS: The Not So Emerging Contaminants

Published on March 14th, 2019 by FLOW Editor - Blog Posts

“Emerging” Contaminants

PFAS (per- and polyfluoroalkyl substances) are driving Michigan’s latest surface and groundwater crisis, infiltrating public waters with what the media and others describe as “emerging” contaminants. It turns out, however, that this class of persistent fluorinated chemicals, known as “forever” chemicals due to their extraordinarily strong bonds, is anything but emergent.

In fact, the responsible chemical manufacturers (DuPont, 3M, and six others), U.S. Environmental Protection Agency (EPA), and U.S. Department of Defense (DOD) have known for decades about the toxicity of PFAS, adverse health effects on humans and the environment, and persistent nature of this family of 5,000+ chemicals. In 2017, the Pentagon identified 401 military sites with known or potential releases of these chemicals.

Complex litigation and class action lawsuits now decades old involving former DuPont employees, 3M, and other manufacturers established causation and linked adverse human impacts to known scientific toxicological effects. Just watch the film The Devil We Know for a gut-wrenching look at what happens to animals, humans, families, and communities poisoned by PFAS contamination when chemical manufacturers and regulatory agencies duplicitously cooperate, ignore science, and continue to produce these chemicals that are ubiquitously found in our food, bodies, drinking water, clothes, and other consumer products sold around the globe.

The most commonly known PFAS-containing household products include Scotchgard®, Teflon®, and Gore-Tex®. PFAS chemicals can be found just about everywhere on the planet, including in mammals in remote Arctic regions. How vast a problem is this? Vast and unprecedented. “An estimated five million to 10 million people in the United States may be drinking water laced with high levels of the chemicals,” according to the New York Times. And an alarming ninety-eight percent of Americans are estimated to have some level of these fluorinated chemicals in their blood.

In 2016, the EPA set a non-enforceable health advisory for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonate (PFOS) levels in drinking water at a combined 70 parts per trillion (ppt). The Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry, however, have stated repeatedly that exposure to even lower concentrations may pose health risks. Despite all that we know, in 2019 Americans still have no federal drinking water standard and no federal cleanup standard to protect communities from harmful health effects from these forever chemicals.

At the State Level

Without federal leadership to set drinking water and cleanup standards, and Superfund polluter liability, the states have to fend for themselves to address a nationwide crisis affecting everything from food, drinking water, wastewater, public health, wildlife, commercial household products, and industry processes. States including Colorado, Minnesota, Michigan, New Jersey, New Mexico, Texas, Vermont, and Washington have or are in the process of developing policies to regulate drinking water and cleanup for this class of toxic chemicals. And another 11 states—Alabama, California, Illinois, Massachusetts, Mississippi, Montana, New Hampshire, New York, North Carolina, Pennsylvania, and Wisconsin—are considering following suit, according to Bloomberg Environment analysis (check out Safer States’ bill tracker to see what’s happening in your state).

In Michigan, DEQ scientist Robert Delaney warned the state about the PFAS health crisis as early as 2012 in a seminal report that was largely ignored. That same year, the Michigan Department of Health and Human Services issued a “Do Not Eat” fish advisory near the former Wurtsmith Air Force Base. Given that these chemicals can bioaccumulate in aquatic ecosystems resulting in higher levels in fish tissue, Michigan issued a health advisory for surface waters at 11 to 12 ppt.

With the discovery of PFAS at Wurtsmith Air Force Base and post-Flint crisis, the State of Michigan launched the Michigan PFAS Action Response Team (MPART) in 2017 to investigate the drinking water systems, wastewater treatment plants, schools, and landfills across the state. The more the State of Michigan looked, the more PFAS-contaminated sites have been found.

In January 2018, the DEQ issued an emergency clean-up standard at 70 parts per trillion (ppt) in groundwater used for drinking water in Michigan. To date, the State of Michigan has tested 1,400 community water systems, and 90 percent of them have no detectable PFA levels. The 10 percent, however, are a significant concern. An executive order signed by Governor Gretchen Whitmer strengthened MPART (the Michigan PFAS Action Response Team) so that it can efficiently inform the public about toxic contamination threats, locate additional PFAS contamination zones, and take action on behalf of Michigan residents, notably by protecting their drinking water supplies from the family of chemicals.

But more needs to be done. Now.

State attorneys general, for example, need to further collaborate and take leadership in building a nationwide coalition to initiate litigation and demand federal agency action for drinking water and cleanup standards. In 2018, Minnesota’s Attorney General won an $850 million settlement with 3M, a manufacturer of perfluorinated chemicals (PFCs).

Where Things Stand

EPA’s recent release of a PFAS Action Plan is the latest example of government foot dragging in the extreme. The plan appears designed to slow the federal response and shift the burden to the states to set their own standards.

On March 1, Michigan’s U.S. Senators Gary Peters and Debbie Stabenow, along with ten other Senators, introduced legislation to regulate PFAS as a “hazardous substance” under the Comprehensive Environmental Response, Compensation, and Liability Act, also known also as CERCLA or Superfund. Under the bill, the EPA would have regulatory enforcement powers over PFAS and could require polluters to pay for PFAS groundwater contamination and clean up. U.S. Representative Debbie Dingell introduced identical legislation in the House (HB 545). On March 5, Governor Whitmer issued a supplemental budget request for $120 million in clean water funds, including $30 million for PFAS research and clean up.

Liz Kirkwood, Executive Director

With a family of 5,000 chemicals infused in everything from clothes to household products to manufacturing, federal and state toxicologists and risk experts are working hard to understand and evaluate the science of exposure and health impacts, and to determine what standards define an acceptable risk. In Michigan, leading toxicologists include among others Dr. Rick Rediske, Carol Miller, Rita Loch-Caruso, Courtney Carignan, and Steve Safferman. Their findings are critical to informing and resolving current state and federal policy debates on safe drinking water and clean up levels.

This latest surface and groundwater crisis is a reminder of how interconnected we are, how vulnerable the water cycle is, and how national chemical policy reform is urgently needed to protect human health and the environment before chemicals are put into commerce and adversely contact with human and the natural environment.

Groundwater Connection: FLOW’s Two-Part Podcast on the Sixth Great Lake, the Water Beneath the Ground

Published on March 12th, 2019 by FLOW Editor - Blog Posts

By Sally Eisele

I am drawn to the water. I live on a small peninsula on an inland lake and love to swim and kayak in its crystal blue water on hot summer days. I fish. I’ve been fly fishing since my early 20s, and I’ve spent countless hours over the decades wading the cold, clear streams thinking about flies and trout and the way the rippled feeding lanes might yield a clue to both. My late father thought the best way to keep his adult children coming back home was to organize a yearly charter fishing trip on Lake Michigan. It worked. So much so, that after many years of working in San Francisco and Chicago, I returned to my home state and the Great Lakes I came to love like no place else in the world.

But I don’t often think that much about the groundwater, unless I’m worried about my septic system clean out or reading another big story about the latest chemical contamination issue. And so when my longtime colleague and friend Dave Dempsey asked me to do a podcast series about groundwater, I had to think about what I even knew about the water under the ground. And I agreed to do it–not as a journalist, which is my background, or as an activist, which is not, but as a fellow Michigander with a lifelong connection of my own to the water of this state.

I thought it would be fun to do it as a different kind of trip “up north.” Not the kind of trip that millions of us take to the beaches and sunsets of the north, but a trip to the groundwater. And so that’s what this is. No breaking news here. No big call to action. Just an audio trip up north to experience the water we may not think about much that is, in fact, the lifeblood of this state, making all the rest of those wonderful trips up north even possible.

Enjoy.

Listen to Parts 1 & 2 of FLOW’s Groundwater Connection podcast on SoundCloud.

Part 1:

Part 2:

Sally Eisele is a nationally recognized public media professional with more than three decades of experience in journalism, editing, and broadcast newsroom management.

Sally’s work in public radio began in Michigan, where she worked at WKAR in Lansing and the Michigan Public Radio Network in its early years, covering politics and the environment. It includes more than a decade as managing editor at WBEZ public radio in Chicago. During that time, she reorganized the station’s news operation and led a team of reporters, editors, producers, and hosts to win many of the most prestigious national awards in American journalism.

Before that, she played a key editorial leadership role at KQED public radio in San Franscisco, where she was instrumental in the early organization of the station’s newsroom under its new all-news format in the 1990’s, was the founding senior producer of the award-winning California Report and helped guide the work that would eventually propel the station into its position now as the most listened-to public radio station in the country.

Sally now has a home in northern Michigan, where she is continuing her work as an independent writer and editor, focusing on rural issues, northern life, and the Great Lakes.

FLOW’s Groundwater Awareness Week: What It Is and Why It Matters

Published on March 11th, 2019 by FLOW Editor - Blog Posts

Michigan is called the Great Lakes state but is a poor steward of the sixth Great Lake, the water lying beneath Michigan’s ground. During National Groundwater Awareness Week March 10-16, FLOW is calling for state-level reforms to strengthen protection of Michigan’s groundwater.

The Invisible Resource

Groundwater is an immense and invisible resource. The volume of groundwater in the Great Lakes watershed is roughly equal to the volume of Lake Huron. Often overlooked because it is out of sight, Michigan’s groundwater is a giant asset and life-giving resource that fills wells, grows crops, fuels industry, and replenishes the Great Lakes.

This week, we feature content directly related to this resource. FLOW has been investigating Michigan groundwater policies and problems for more than a year. In September 2018, we released a report, The Sixth Great Lake: The Emergency Threatening Michigan’s Overlooked Groundwater Resource. Our concern and communication continues.

Our content to be released throughout Groundwater Awareness Week includes an inspiring video narrated by poet and author Anne-Marie Oomen; two podcasts developed by writer and broadcast professional Sally Eisele; blog posts by FLOW experts shining a spotlight on PFAS and other groundwater pollution problems and protective solutions; and a fact sheet summing it all up.

In addition, FLOW is developing a groundwater map for release later this spring making it easy for you to learn about the resource across Michigan and in your region of the state.

Why Is Groundwater Important?

Michigan has more private drinking water wells than any other state. About 45% of the state’s population depends on groundwater as its drinking water source. Michigan industries withdraw 64 million gallons of groundwater daily from on-site wells. Over 260 million gallons of groundwater are withdrawn daily in Michigan for irrigation. As much as 42% of the water in the Great Lakes originates from groundwater.

For a resource so vital to human health and the economy, Michigan’s groundwater is shabbily treated in both policy and practice. Of the 50 states, only Michigan lacks a statewide law protecting groundwater from septic systems – and there are an estimated 130,000 leaking septic systems within Michigan’s borders. Other major threats include an estimated 6,000 contamination sites for which no private or public funding is available and widespread nitrate contamination from agricultural practices.

What Is Groundwater?

The hydrologic cycle governs water movement. Surface water is heated by the sun and evaporates into the atmosphere, forming clouds. These clouds condense and precipitation falls back to Earth as rain, snow, sleet, or hail. Water will then either return to a surface body of water or seep into the soil and move through the crust as groundwater.

Some may envision groundwater as an underground river or lake, but groundwater is held in tiny pore spaces in the rock and soil. After water is absorbed into the ground, gravity pulls the water down through the unsaturated zone. This area of the Earth’s crust is where tiny gaps between sediment grains, called pore spaces, are filled with either air or water. Water here can be trapped and used by plant roots or percolate downward into the saturated zone, where water exclusively fills the pore spaces.

The division between the unsaturated and saturated zone is called the water table. This two-dimensional plane often follows the contours of the surface above, moving seasonally based on precipitation events.

Groundwater in the saturated zone moves both vertically and horizontally, flowing towards a lower elevation discharge point like a stream or a lake. These surface bodies of water often rely on groundwater sources, in addition to precipitation, to recharge their water levels. After re-entering a surface body of water, the water continues through the hydrologic cycle.

As groundwater moves through the surface of the Earth, it often travels through an aquifer. Aquifers are underground formations that contain water at high enough concentrations that we can sustainably pump.

The two types of aquifers are called confined and unconfined aquifers, differing in whether or not there is an impermeable layer between the surface and the aquifer or not. Both types of aquifer can be used as a freshwater source, but unconfined aquifers are much more easily affected by surface actions and contamination and are more susceptible to pollution and degradation.

Almost all groundwater will discharge into surface water, unless it is extracted first. As a result, contaminated groundwater can degrade lakes, streams, and the Great Lakes.

Friday Favorite: Houdek Dunes Natural Area

Published on March 8th, 2019 by FLOW Editor - Blog Posts, Friday Favorites

Reading Dave Dempsey’s recent post about the nearby wonder and beauty reminded me to take advantage of the wonderful hiking trails so close to where I live, to explore the corners of the scenic Leelanau Peninsula. There are quite a few hidden gems that don’t get the credit they deserve. So this past weekend, I went out to uncover a gem I hadn’t seen yet.

Right off of M-22 is one such unassuming trailhead, the Houdek Dunes Natural Area. It is set up as a series of loops. It’s like a choose-your-own-adventure, where you can pick which way to go and how long your hike will be.

Whichever route you choose, you will be surrounded by snow, ice, and water. On occasion, you can see Lake Michigan peeking through the trees, and at the far end of the trail network is a quiet spot with a bench overlooking the serene Houdek Creek.

Nayt Boyt

Thanks to The Leelanau Conservancy, this trail network is a well-maintained favorite in the area. You can visit their website to learn more about the history of the Houdek Dunes Natural Area and what to expect on your hike.

Stop by if you want a peaceful walk or a winter workout, but be sure to bring your snowshoes this time of year. Otherwise, you might sink knee-deep into the vast drifts of winter wonderland.

Grandma Josephine the Water Walker: A Remembrance

Published on March 4th, 2019 by FLOW Editor - Blog Posts

Above: FLOW Board member JoAnne Cook (left) with the late Josephine Mandamin (right).

In late February, Josephine Mandamin of the Anishinabek Nation, affectionately known as Grandma Josephine and Grandmother Water Walker, passed away at 77. Grandma Josephine was famed for leading a Great Lakes water walk to dramatize the importance of guarding this essence of life, logging more than 25,000 kilometers for water advocacy. FLOW board member JoAnne Cook offers this remembrance of Grandma Josephine.

Grandma Josephine Mandamin was the epitome of strength, love, and devotion. Devoted to her work as a water walker and protector, devoted to her family as a mother, wife, and grandmother, and devoted to the way she lived her life as an Anishinaabe kwe (a female member of the Anishinabek Nation).

Her work with the water began when our Grand Chief of the 3 Fires Lodge, Edward Benton, said that one day water will cost more than an ounce of gold and then he asked: what will you do to help the water? Grandma Josephine took that to heart and followed his message.

She began the water walks as a way to bring awareness to the people about the water. The water walks began in 2003 and included the Five Great Lakes, the Four Directions, and the Migration route from east to west. The water walks brought together all people and included men and women from all parts of life.

To take part in the water walks and gatherings, a person only needed to care about the water and have the willingness to learn from Grandma Josephine. She truly exemplified the notion that one person can make a difference and create change. Her message about water and the need for clean, healthy water reached many people and communities all over the world.

To learn more about the water walks and efforts of Grandma Josephine, go to www.motherearthwaterwalk.com

FACTS ABOUT GROUNDWATER

Published on March 1st, 2019 by FLOW Editor - Blog Posts

There are an estimated 2.8 million trillion gallons of groundwater, 30.1 percent of the world’s freshwater.
An estimated 79.6 billion gallons of groundwater is withdrawn daily, or 26 percent of the water withdrawn in the U.S.
From 2010 to 2015, groundwater use in the United States increased by 8.3% while surface water use declined by 13.9%.
About a quarter of all U.S. rainfall becomes groundwater.
Hydrologists estimate U.S. groundwater reserves at 33,000 trillion gallons, equal to the amount discharged into the Gulf of Mexico by the Mississippi River in the past 200 years.
More than 15.9 million water wells serve the United States.
Thirty-eight percent of the U.S. population depends on groundwater for its drinking water supply, from both public and private wells.
Michigan, with an estimated 1.1 million households served by private water wells, has the largest such population of any state.
6 million Michigan citizens are served by private household wells.
The amount of fresh groundwater in the Great Lakes Basin is approximately equal to the amount of water in Lake Huron.
Direct and indirect discharges of groundwater to the Great Lakes are estimated to account for as much as 2.7% and 42% (respectively) of the inflows to the Great Lakes.
In Michigan alone, there are more than 15,000 documented cases of groundwater contamination that could, potentially, affect the quality of water in the Great Lakes.
Groundwater can become contaminated with a wide variety of chemicals and other substances including nutrients, salts, metals, petroleum hydrocarbons and fuel additives, chlorinated solvents and additives, radionuclides, pharmaceuticals and other emerging contaminants, pesticides, and microorganisms (including pathogens).
Groundwater may improve the water quality of contaminated surface waters, providing areas of contaminant refuges in groundwater discharge zones in an otherwise contaminated surface water body.
45% of Michigan citizens are served by groundwater.
Public water supplies using groundwater serve 1.7 million people in Michigan.
Michigan has 9% of the nation’s public groundwater supply systems, the highest share of any state (12,038 out of 128,371).
In 2017, Michigan used 2,888,325,875 gallons of groundwater.
Daily groundwater withdrawals in Michigan total over 260 million gallons for irrigation as well as 64 million gallons from on-site wells for industrial purposes.

Sources: National Groundwater Association, Great Lakes Executive Committee Annex 8 Subcommittee, Michigan Department of Environmental Quality.