Tag: polluter pay law

Making Polluters Pay: How to Fix State Law and Policy to Protect Groundwater and Michigan Taxpayers

Download the new report:

FLOW (For Love of Water) hailed the introduction of “polluter pay” bills in the Michigan Legislature as a long overdue step toward protecting Michigan’s groundwater resources and public health from the 24,000+ contaminated sites in the state. The new legislation shifts the cost burden of cleanups from Michigan taxpayers back to the businesses and corporations responsible for the pollution.

“These bills will not only spur cleanup of historic contamination sites, but also serve as a powerful deterrent to future contamination,” said Liz Kirkwood, FLOW Executive Director. “If potential polluters know they will have to contain their spills and clean them up rather than leave contamination in the ground, they’ll take measures to reduce the risk of significant liability.”

Kirkwood commended the sponsors, Senator Jeff Irwin (D-Ann Arbor) and Representative Jason Morgan (D-Ann Arbor), for their bold leadership in drafting and introducing the legislation (SB 605-611).

Current law enables owners of contaminated sites to avoid cleaning up their pollution and instead to secure bans on the use of groundwater and use impermeable surfaces to limit human exposure. As a result, EGLE’s Environmental Mapper had recorded 4,244 land-use restrictions at 3,530 sites (some sites have more than one restriction) as of August 22, 2023. The total surface area covered by the restrictions is 66,332 acres – cumulatively more than twice the size of the City of Grand Rapids. Soils and/or groundwater at most of these sites remain polluted.

“When we have to ban the use of groundwater — which is the source of drinking water for 45% of Michigan residents — we foster a spreading stain across the state,” Kirkwood said. “By flipping the assumption from water and land restrictions to cleanup, these bills will stop that trend and protect groundwater for Michiganders.”

FLOW has advocated a return to the polluter “pay principle” since 2018 in a series of groundwater protection reports that also set out a comprehensive policy agenda. This is consistent with strong recent public polling from Progress Michigan, which shows an overwhelming 95 percent of those polled support requiring corporations to pay to clean up their own pollution. Today, FLOW is releasing a new report: Making Polluters Pay: How to Fix State Law and Policy to Protect Groundwater and Michigan Taxpayers (2023) to provide the historical context and enduring legacy of Michigan’s repeal of polluter pay, and to articulate the urgent need for legal reforms to hold polluters accountable.


Additional Resources:

Building Consensus to Protect Michigan’s Groundwater: A Report on the Proceeding and Recommendations of the Michigan Groundwater Table (2022)

Deep Threats to our Sixth Great Lake: Spotlighting and Solving Michigan’s Groundwater Emergency (2021)

The Sixth Great Lake: The Emergency Threatening Michigan’s Overlooked Groundwater Resources (2018)

FLOW’s Groundwater Story Map

EGLE Environmental Mapper

Michigan’s Sixth Great Lake: FLOW featured in July 31 “Northern Express”

FLOW Executive Director Liz Kirkwood sat down with the Northern Express to talk about Michigan’s unheralded “Sixth Great Lake”: Groundwater. In the July 31, 2023 issue, learn about Michigan’s hydrological connections, and how FLOW is working to protect all the waters of the Great Lakes Basin through our work on education, septic codes, and polluter pay laws.

Michigan’s Sixth Great Lake: Northern Express July 31, 2023 >>

Building Consensus to Protect Michigan’s Groundwater

The old saying, “out of sight, out of mind,” all too often characterizes Michigan’s approach to groundwater.

Understanding that Michigan residents and key stakeholders should value stewardship of all water, including groundwater, FLOW in January 2021 launched and convened the Michigan Groundwater Table composed of diverse membership and perspectives. After more than a year of work, FLOW is releasing a report today, and accompanying story map, on the Groundwater Table’s work.

The report, Building Consensus: Securing Protection of Michigan’s Groundwater, reflects the work of 22 knowledgeable and influential stakeholders from local government, academia, and regulatory agencies. It contains consensus findings about the status of Michigan’s groundwater and also recommendations on how to improve its protection. Although consensus was not achieved on all groundwater policy options, we are heartened by progress toward consensus on several recommendations related to:

  • Polluter pay
  • Private wells
  • Agricultural stewardship
  • Statewide septic code
  • Public education
  • Data tools.

Michigan’s groundwater is a critical part of Michigan’s present and future. Increasing population, a changing climate, and limited public funding for prevention and cleanup of contamination will continue to stress groundwater resources.

Groundwater Table members also agreed that Michigan’s groundwater is a “critical and often overlooked resource,” vital to the state’s public health, agriculture and other businesses, coldwater fisheries, stream ecology, and wetlands, and accounts for at least 25% of the total water inflow to the Great Lakes via groundwater inflow into tributaries. They also found that Michigan has underinvested in monitoring, mapping, and reporting groundwater quantity and quality.

The immersive story map, meanwhile, takes you on a visual journey from the groundwater basics to unique ecosystems, threats, and protection.

FLOW’s Commitment to Groundwater Protection

In a series of reports dating back to 2018, FLOW has called attention to the gap between the importance of groundwater to Michigan’s health and welfare and the state’s historically inconsistent groundwater policies. We have spotlighted groundwater because a significant percentage of the population knows and thinks little of it, even though groundwater provides drinking water, supports agriculture and industry, is critical to Michigan’s internationally renowned trout streams, and more.

The Building Consensus report concludes that Michigan’s groundwater is a critical part of Michigan’s present and future. Increasing population, a changing climate, and limited public funding for prevention and cleanup of contamination will continue to stress groundwater resources. Unless policymakers make a lasting commitment to groundwater protection and stewardship, Michigan will suffer from a degraded resource unable to serve the state’s needs.

The blueprint now exists for protecting Michigan’s groundwater—it is time to act on it.

Solving Michigan’s Groundwater Crisis to Protect Drinking Water, the Economy, and the Great Lakes

Dave Dempsey, Senior Advisor

By Dave Dempsey

For over three years, FLOW has analyzed and reported on one of the biggest gaps in Michigan’s environmental protection safety net—groundwater protection. Now, during National Groundwater Awareness Week 2021, we are reaffirming and expanding upon our call for stronger state groundwater protection policies and actions. 

Today we’re also releasing our new report, Deep Threats to Our Sixth Great Lake. Click here for a Key Facts sheet.

The stakes are too high not to act. Groundwater supplies 45% of Michigan’s population with drinking water—much of that from 1.25 million private wells that are not routinely monitored. For those who drink from these wells, groundwater contamination is an often-invisible threat.

Groundwater contamination is widespread. The Michigan Department of Environment, Great Lakes, and Energy (EGLE) says there are more than 14,000 contamination sites whose cleanups are unfunded, underfunded, or on hold. At the current rate of funding, it will take decades to clean up all of these sites—while more polluted parcels are added to the list.

One obvious reason for inadequate groundwater protection is that groundwater is out of sight. Problems caused by improper management of wastes in Michigan typically aren’t diagnosed until drinking water wells are polluted, contamination seeps from groundwater into lakes and streams, or pollution vaporizes into buildings, including residences.

Another reason for failures in Michigan groundwater protection is fragmented government authority. No groundwater focal point exists in state government. Several programs within EGLE touch on groundwater pollution prevention and cleanup, while other agencies, including the state Department of Agriculture and Rural Development, deal with aspects of groundwater stewardship. Some states address this problem by establishing overarching groundwater policies and coordinating mechanisms.

Our state and national groundwater problems are nothing new. Some contaminated sites were created a century ago, and significant taxpayer-funded groundwater cleanups have been going on for almost 50 years in Michigan. This makes inadequate groundwater policies all the more inexcusable.

We do appreciate the limited progress that has been made in Michigan since our 2018 groundwater report, including that:

  • Michigan has become one of the few states to adopt health-protective drinking water standards for PFAS, a toxic contaminant found in groundwater across Michigan.
  • The Legislature approved substantial contamination cleanup funding from the Renew Michigan Fund.
  • Governor Whitmer has proposed a $35 million fund to assist homeowners in replacing failing septic systems.

These actions, while helpful, fall far short of what is needed to safeguard our groundwater. Our new report, Deep Threats, proposes a host of reforms ranging from polluter liability, protective cleanup standards, penalties for groundwater damages, empowerment of citizens to seek relief when their groundwater is contaminated, and ultimately, a holistic Groundwater Protection Act.

Michigan prides itself as the Great Lakes State. But it cannot fulfill that destiny unless and until it conserves and protects its groundwater now and for future generations.

The Case of the Green Ooze

Green liquid oozing from a retaining wall along I-696 on Dec. 20, 2019. Photo courtesy of Michigan Department of Transportation

By Dave Dempsey

It’s disappointing that it took creeping green ooze to awaken state officials in Lansing to a monumental environmental problem — thousands of hazardous groundwater contamination sites across the state. But that’s exactly what has happened.

When a stream of green liquid began to flow onto a metro Detroit freeway in December 2019, alarm bells clanged. It soon turned out that the ooze contained, among other contaminants, hexavalent chromium, which is associated with cancer, as well as kidney and liver damage. Fortunately, homes and businesses in the area have municipal drinking water supplies instead of private wells, so the immediate health impact on people has been minimal.

The now-defunct Madison Heights electro-plating facility believed responsible for the ooze had 5,000 containers of haphazardly stored toxic waste when government inspectors arrived in 2016. The U.S. Environmental Protection Agency (EPA) conducted a $1.5 million emergency cleanup but did not address contaminated soils under the building. That’s the source of the I-696 ooze.

Although the owner of the company reported last week for a one-year prison term, state officials missed the opportunity to deal with the mess before it became a crisis when they failed to take decisive enforcement action against the firm after inspections found major problems beginning in 1996. Instead, they wrote letters and notices of violation for 20 years. Now another expensive cleanup is underway.

The green ooze is a symbol of a much bigger problem — thousands of groundwater contamination sites across the state where little or no cleanup has taken place. Many of these sites do threaten drinking water supplies or direct contact hazards — and there is little public money available to clean them up.

Until 1995, state policy dictated the full cleanup of contaminated groundwater in most instances, and from 1990 to 1995 state law also assigned strict liability for owners of contaminated sites. But the Michigan Legislature dramatically weakened both protections, allowing contaminants to be contained rather than cleaned up in many instances, and making it much more difficult to hold polluters accountable for the costs of cleanup. The public has been burdened with much of that cost.

A state that likes to think of itself as “Pure Michigan” has a far-from-pure groundwater resource, even though 45% of the state’s population gets its drinking water from wells. This intolerable condition cannot continue.

Responding to negative headlines over the green ooze, Governor Whitmer last week called for the restoration of Michigan’s polluter pay law and other actions to address the problem of lingering groundwater contamination. But the Legislature is in no hurry to comply.

It’s unclear how many messes it will take before policymakers wake up. But their action can’t wait. Had a fire broken out at the Madison Heights facility, and firefighters who responded sprayed water on the blaze, it might have resulted in an explosion like one that killed 173 people, including 104 firefighters, in China in 2015.

The antidote to green ooze is better business stewardship, tougher environmental enforcement, and a polluter pay law. It’s time for Michigan to get its groundwater act together.

Dave Dempsey is FLOW’s senior policy adviser.

Dave Dempsey, Senior Advisor