Who’s Minding Michigan’s Rivers? (Part 1)

For six decades, McLouth Steel conducted operations on the Detroit River.  It produced hot rolled, cold rolled and stainless steel, sold mostly to the auto industry.  At its peak, the company had plants in three cities along the river: Detroit, Trenton and Gibraltar.

The company filed for reorganization under the Bankruptcy Act in 1981 and again in 1995. Operations ceased and the last remnants of the company’s properties were liquidated in bankruptcy in 1996.

Buyers knew various sites were contaminated with industrial toxins which were discharging to the Detroit River, near the International Wildlife Refuge, and pledged but failed to clean them up.

The site of the Gibraltar plant was enrolled on the U.S. Environmental Protection Agency’s National Priorities List (NPL) in March of this year, nearly 20 years after McLouth went out of business.  The NPL designates the worst hazardous waste sites in the nation, eligible for Superfund remediation.

“The Michigan Department of Environmental Quality has been operating the leachate collection system at [a contaminated landfill on site] since completion of the removal action work by using the [the contaminated landfill’s] Perpetual Care Fund, but those funds were depleted in May 2015 and the State is using alternate funding sources to continue leachate collection activities.”  http://www.epa.gov/Region5/superfund/npl/michigan/MIN000510362.html

Too little, too late.

Progress at Ten Mile Drain Superfund Site

EPA TO REPLACE MANHOLE VAULTS

The Ten Mile Drain Superfund Site is an area in St. Clair Shores, Michigan where oil laden with toxic polychlorinated biphenyl (PCB) was found in significant concentrations in sediment in a storm sewer or drain and at the bottom of two canals leading to Lake St. Clair.  

The U.S. Environmental Protection Agency (EPA) had the sewer scoured and the canals dredged, but PCB reappeared.

PCB is a toxic fire retardant that was added to oil (in electric utility transformers, for example) to prevent the oil from burning.  It’s likely that years ago somebody dumped the oil down sewer manholes in the street.  Many sewers, especially older ones, are not water tight, so contaminants in the sewer can leak into the bedding underneath and/or the surrounding soil, and vice versa.  Thus, contaminants may migrate downstream both within and outside the sewer.

Seventeen weirs were placed in the sewer system and a sediment trap installed at the outfall to help pinpoint the source of the contamination and inhibit migration.  Also, numerous test borings were made in the area.

The highest PCB concentrations were found at the intersection of Harper Avenue and Bon Brae Street.  This summer, EPA plans to remove and replace two manhole vaults, along with contaminated stone bedding and backfill.  Four monitoring wells will be installed, as well.

The site is within the Clinton River Area of Concern, which encompasses the 760 square mile Clinton River watershed (mostly in Oakland and Macomb counties) and a portion of Lake St. Clair, into which the river empties.  

An Area of Concern (AOC) is defined in a U.S.-Canadian agreement as a geographic area that does not meet the water quality objectives of the agreement, having conditions that harm or are likely to harm living things.

EPA’s Superfund National Priorities List is a compilation of the worst toxic waste sites in the country, eligible for extensive, long-term clean-up.  The Ten Mile Drain site was placed on the list in 2010.

http://www.epa.gov/region05/cleanup/tenmiledrain/

Stormwater Management: More Trees, Less Concrete

Chicago built a giant stormwater/wastewater retention tunnel as part of the city’s Tunnel and Reservoir Plan (TARP).  It’s similar to the tunnel system recommended years ago for Detroit (which Detroit couldn’t afford).

But following storms earlier this week, Chicago’s Deep Tunnel filled to capacity and overflowed, spilling polluted stormwater into Lake Michigan.  CBS in Chicago (WBBN) reported, “ ‘All the tunnels combined, it’s 2.3 billion gallons of capacity that we maxed out,’ MWRD supervising civil engineer Ed Staudacher said.”

The lesson over and over again is that big, downstream, end-of-the-pipe processes and facilities by themselves aren’t the solution to combined storm and wastewater overflows in large metropolitan areas.

Another lesson is that concrete and steel remedies such as the retention-treatment basins (RTBs) that are being expanded in Detroit’s system cost more but aren’t as effective as well planned, region wide green infrastructure.

In New York City, Philadelphia and Los Angeles, for example, forward thinking leaders designed and are completing projects to plant a million trees each.

Trees generate oxygen, remove pollution, store carbon, save energy, improve water quality and slow stormwater runoff.

If each of the 120 upstream communities in the Great Lakes Water Authority (GLWA) system rallied service clubs, chambers of commerce, church groups and Boy Scout and Girl Scout troops to plant with thoughtful placement 1,000 trees per community per year, we’d have a million new trees in eight or nine years.  It’s doable.

Cop or Colleague? Regulatory Capture under the Microscope

One form of regulatory capture occurs when a government regulator works in such close proximity for such a long time with a regulated entity that the regulator abandons his or her zeal for the public interest and replaces it with loyalty to, affinity for, and social cohesion with the regulated.

Such circumstances are thought by some to be a variance of the Stockholm Syndrome.*  The phenomenon may be more likely to develop when the executive branch at the moment is infused with a laissez-faire philosophy.

One sign of regulatory capture is the regulator’s reference to the regulated as “colleagues” or “partners.”  Other signs are frequent gifts, courtesies or privileges given to the regulator by the regulated.  In one instance I observed, the regulated entity featured a flattering article about its primary regulator on the entity’s website, obviously composed with the regulator’s input.

Collegiality in this kind of relationship invites deception like that which occurred in recent years at the Detroit Water and Sewerage Department.

Wonder if a regulator who has sold out the public interest while continuing to draw a public paycheck is open to a citizen complaint under the federal False Claims Act or a state equivalent?

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* “Hockett, who testified at the November hearing, said the potential problem isn’t examiners trying to get jobs with banks they supervise, so much as ‘cognitive capture, like a kind of Stockholm Syndrome where you identify with or come to see through the eyes of the party you’re regulating.’ “ http://www.bloomberg.com/news/articles/2015-04-20/fed-said-to-weigh-steps-to-prevent-regulatory-capture-by-banks

Dissension over Detroit Water Deal

Concern about secrecy and the public’s right to know caused Macomb County, a principal participant, to balk at ongoing negotiations to create a regional water services authority in southeast Michigan.

A lease of Detroit’s water and sewage treatment facilities by the new Great Lakes Water Authority (GLWA) was envisioned by bankruptcy officials as a source of revenue necessary to restore Detroit to solvency.

Macomb’s chief executive, Mark Hackel, objects to a gag order imposed on the talks by a bankruptcy judge during Detroit's bankruptcy proceedings.  Court authority for the secret negotiations, administered by a federal district judge as mediator, is set to expire on Sunday, June 14.  

In an editorial in the Detroit News on June 4, Nolan Finley wrote (excerpts):

[The federal mediator] has maintained a gag order on negotiations to finalize the regional water authority agreement, even though a governing board was appointed to publicly conclude its formation after a memorandum of understanding was signed a year ago…

Hackel is dead right that once that public board was in place, the private backroom dealing should have stopped and the gag order lifted.

"It's not about creating an effective water system," [Hackel] says. "It's about how they force this issue through bankruptcy and get what they need for the city of Detroit…”

http://www.detroitnews.com/story/opinion/columnists/nolan-finley/2015/06/03/finley-hackel-bucks-gag-order/28426647/

In a follow-up note published in the News on June 5, Finley added (excerpts):

Mark Hackel has been on a seven-day rampage since learning he wouldn’t be included in a private mediation session to firm up the regional water authority, which included his Oakland County counterpart, L. Brooks Patterson and Detroit Mayor Mike Duggan.

Detroit Federal District Judge Sean Cox [mediator] cut the Macomb county executive out of the meeting…

The mediation session may not have moved the parties closer to a deal. But it did accomplish one thing: It drove a wedge between Hackel and Patterson, who had been united in opposition to the water deal as currently proposed.

And perhaps that was the objective.

http://www.detroitnews.com/story/opinion/columnists/nolan-finley/2015/06/05/ed-note-secret-talk-hackel-patterson/28496521/

On June 8 in an opinion piece in the News on the same topic, former Detroit emergency manager Kevyn Orr said (excerpts):

The mediation process has given all the parties a seat at the table. [Emphasis added.] It provided a forum to air differences and consider counter proposals in an open [sic] and collegial environment without concern that a proposal would be taken out of context and blasted across tomorrow's headline. Those that participated in mediation have enhanced the process to the betterment of the the systems' customers. Those that have withdrawn from it have robbed their constituents of the ability to make any agreement that much better by the value of their participation.

To those not participating in the mediation process, it may seem shrouded in secrecy and unfairly hidden from public view. However, the confidentiality imposed on this process is both common and necessary for the parties to have full and frank discussions...

Some say that mediation is gagging the public discourse. But those who hold this position may be allowing themselves to be stuck in the process instead of being participants in a solution...

http://www.detroitnews.com/story/opinion/2015/06/08/orr-mediation-best-hope-water-deal/28551457/

It seems obvious to me that “all the parties” are not at the table.  I’m referring to the 120 communities throughout the region that are compelled to rely on and pay for a water and sewage system in the alteration of which they have no voice and can’t even find out what’s being discussed.

UPDATE:  On June 9, 2015, the author wrote Detroit's major newspapers, in part, 

Kevyn Orr’s rationale for secrecy confuses apples with oranges.

The typical bankruptcy case in which secrecy is invoked involves the bankrupt and creditors, i.e. claimants in the case which are commonly savvy, well represented financial institutions, not the public (here in 120 small,unrepresented communities scattered throughout seven counties), which is entitled to transparency.

Furthermore, Mr. Orr’s comments reveal the type of false assumptions that are the undoing of most federal court gag orders.

Important MDEQ Announcements

FINANCIAL PLANNING FOR COMMUNITY WATER OR WASTEWATER INFRASTRUCTURE PROJECTS

The Michigan Department of Environmental Quality (MDEQ) will set up a meeting with its State Revolving Fund and Drinking Water Revolving Fund people to pre-plan financing for community projects.  The number to call is 517-284-5433.

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PRECAUTIONS CONCERNING CONTAMINATED REAL ESTATE

There have been changes in the law regarding the Baseline Environmental Assessment (BEA) and Due Care Guides .  Parties acquiring or occupying property that may be contaminated can learn how to manage risk of liability.  Contact:

Jeanne Schlaufman

Schlaufmanj1@michigan.gov

586-753-3823

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VOLUNTEER TO EDUCATE BOATERS ABOUT INVASIVE SPECIES

Volunteers and organizations are needed to educate boaters about aquatic invasive species.

“Michigan’s 2nd Annual Aquatic Invasive Species (AIS) Landing Blitz will be held during Aquatic Invasive Species Awareness Week, June 26 through July 5, at boat landings statewide…

“Boaters will learn simple steps they can take to help prevent the spread of unwanted aquatic plants and animals such as Eurasian watermilfoil and zebra mussels by cleaning, draining and drying boats and equipment…

“...Boaters can unknowingly transfer invasive species and fish diseases, such as viral hemorrhagic septicemia, to new waters when they don't clean boats, trailers and other equipment.”  http://www.minews26.com/content/?p=38441

More information:

Kevin Walters, 517-284-5473, waltersk3@michigan.gov

Karen Tommasulo, 517-284-6716, tommasulok@michigan.gov

www.michigan.gov/aquaticinvasives

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OAKLAND COUNTY WILL CONDUCT BOATER EDUCATION EARLIER

Coinciding with the Michigan Department of Natural Resources Free Fishing Weekend and the Clinton River Watershed Council's River Day, the Oakland County Parks and Recreation Department will conduct boater awareness events focusing on invasive species at three locations.

“Learn how to properly clean your boat and protect lakes and rivers from unwanted aquatic invasive species Saturday, June 13 from 9 a.m. - 4 p.m. at the boathouses of Groveland Oaks, Addison Oaks and Independence Oaks county parks.

“Independence Oaks County Park will also host the Michigan Department of Environmental Quality's Mobile Boat Washing Station that same day from 9 a.m. - 1 p.m. at the Independence Oaks Boat Launch…

“A daily or annual vehicle park pass is required for park entry.

“Independence Oaks, 9501 Sashabaw Road in Clarkston.*

“Addison Oaks, 1480 West Romeo Road in Leonard.

“Groveland Oaks, 14555 Dixie Highway in Holly.

“ *There is major construction at Sashabaw and I-&75. Click here for more information.”

http://www.destinationoakland.com/parksandtrails/parks/independenceoaks/Pages/Events.aspx

From DWSD to GLWA: Transition without Reform?

This past February, Bankruptcy Judge Steven Rhodes extended his gag order in Detroit’s bankruptcy to cover ongoing regional water negotiations being mediated by U.S. District Judge Sean Cox.  The order reinforces the Detroit Water and Sewerage Department’s (DWSD’s) tradition of secrecy.  What kind of example does this set?  When does reform enter the picture?  How can democracy work where one federal judge after another presumes to know for a period of nearly 40 years what the citizenry wants in the way of water services?

DWSD’s history is riddled with secrecy, corruption and incompetence.  Not all of those characteristics ended with the convictions of Kwame Kilpatrick, Bobby Ferguson and Victor Mercado in federal court.

The following will serve as a review of some of the shortcomings that have plagued and, in some instances, continue to plague the department, its intended successor (the Great Lakes Water Authority or GLWA) and water services customers in southeast Michigan.  Also included are reminders of suggestions to correct some of the deficiencies.

1.  TRANSPARENCY

No matter how accurate and thorough, traditional annual audits can’t be read and understood by the public.  The means are available today to correct this shortcoming by making the details of public transactions instantly accessible. Of course, any steps taken to reveal mischief, sloth and mistakes as they happen will be resisted by some in the public arena.  Nevertheless, from New York City to South Bend, Indiana and Jackson, Michigan, the change is being made. Detroit and southeast Michigan shouldn’t be the last to adopt the new technology.

http://detroitwatersewerblog.blogspot.com/2014/02/support-revolutionary.html

2.  ABSENCE OF AUDITS

If there’s one thing worse than the typical DWSD audit, it’s no audit at all. DWSD didn’t release an annual audit report for 2013.  Ditto 2014.  What about 2015?  Your guess is as good as mine.  In the meantime, it occurs to me that the region’s news media has been conspicuous by its silence on this subject.

http://detroitwatersewerblog.blogspot.com/2014/02/dwsd-cooking-books.html

3.  FORENSIC AUDITS

Until such time as the newly available technology can be deployed at DWSD and/or GLWA, transparency could be achieved through the routine use of a formidable process known as the forensic audit.

Over the decades, millions of dollars have been spent on audits that failed to alert the public to crimes, waste, inefficiencies and incompetence within DWSD. Who knows why the auditors in Detroit failed?  A few years ago in a town in Massachusetts, however, they figured out why.  Said one of the town’s selectmen, surmising why a derelict auditor had not been forthcoming, “If you open your mouth, you’re going to get fired.” http://detroitwatersewerblog.blogspot.com/2014/02/forensic-audits-another-tool-related-to.html

4.  THE ARGUMENT FOR DISMANTLING THE DETROIT WASTEWATER TREATMENT PLANT

The wastewater treatment plant in Detroit is too big and unmanageable.  It is too susceptible to corruption.  Too much of its revenue is prone to be siphoned off for less than legitimate purposes. The plant’s technology is out of date. Equipment and facilities are broken down.

Detroit’s sewerage plant should be replaced by a number of smaller, modern plants with the latest technology, scattered throughout the region like the eight in Oakland County (Holly, Commerce, Milford, Walled Lake, Pontiac, South Lyon, Wixom and Lyon Twp.).

http://detroitwatersewerblog.blogspot.com/2014/07/a-plan-to-dismantle-detroits-wastewater.html

5.  DWSD’S UNJUSTIFIABLE OVERCAPACITY IN POTABLE WATER PRODUCTION

DWSD frequently cites fixed costs in water production, coupled with the decline in water customers, as causes for the escalating water rates that burden customers, especially the impoverished.  What DWSD rarely mentions is that fixed costs are high in part because the department operates five water plants, but only needs three or four.  There is no excuse for DWSD to pass on to GLWA all five of those plants or for GLWA to accept all five.

http://detroitwatersewerblog.blogspot.com/2015/02/dwsd-close-one-of-your-water-plants.html

6.  IS THE GAG ORDER CONSTITUTIONAL?

In the opinion of renowned legal scholar Erwin Chemerinsky, virtually all gag orders are flawed because they depend on untenable assumptions.  Look at his reasoning and consider how well it applies to Judge Rhodes’ order.  Doesn’t the public interest require transparency?  What other interest supersedes the public’s?  Why doesn't someone challenge Rhodes' gag order?

http://detroitwatersewerblog.blogspot.com/2015/03/is-glwa-gag-order-constitutional.html