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Dow Chemical Company, Midland Michigan

Letter from Steve Blackledge, Tracy Easthope, etc., to Jon Kessler

Michigan Environmental Council

February 29, 1996

Jon Kessler
Project XL Director
Office of Policy Analysis
U.S. Environmental Protection Agency
41 M Street, S.W.
Room 3202, Mail Code 2129
Washington, DC 20460

Dear Mr. Kessler:

We are writing to oppose the preliminary Project XL proposal submitted by the Dow Chemical Company. Noting the EPA was directed to "consult extensively with the affected state and local community" before approving a project for implementation, we have enclosed a copy of our letter to Dow Chemical opposing their Project XL proposal as currently written. Our concerns are highlighted in the letter.

Additionally, we have several questions for the EPA regarding this proposal:

Thank you for responding to our concerns. We oppose the acceptance of this proposal as currently written, but remain committed to a process which will encourage substantive pollution prevention efforts, with full citizen particiption, and with measurable and enforceable goals. We have been encouraged by our ongoing meetings with Dow on other issues that the company is committed to improving their environmental performance.

Sincerely,

Steve Blackledge
PIRGIM
Tracey Easthope, MPH
Ecology Center
Diane Hebert Terry Miller
Lone Tree Council
Carol Miseldine
Michigan Environmental Council
Mary Sinclair, Ph.D.
Ann Hunt
Citizen's for Alternatives for Chemical Contamination



Michigan Environmental Council

February 29, 1996

Mr. Jerry Ring
Dow Chemical Company
2030 Dow Center
Midland, MI 48674

Dear Mr. Ring:

Thank you for contacting and meeting with us about your XL proposal. We are interested in encouraging, participating and supporting substantive pollution prevention and source reduction efforts by your company or any entity committed to reducing their environmental impact.

We are, however, opposed to the Michigan Division* portion of Dow's XL proposal as written. We remain hopeful that Dow will substantially modify your proposal and thus allow us to support it. As currently written, both the process and the content of Dow's proposal raise questions about this program's purpose and intended outcomes. Our concerns and questions are highlighted below:

Dow is Not in Compliance with Current Regulations

In Dow's preliminary XL application, the company lists examples of potential candidates for "regulatory flexibility." At least two of the potential candidates include operations where Dow is currently experiencing compliance problems. Exceedances from both the company's wastewater treatment system and tertiary treatment ponds have led a number of environmental and community organizations, and the State of Michigan, to file suit against the company for noncompliance with federal and state Clean Water Act regulations. The EPA has also sent a letter ordering the company to comply with existing regulations. Thus, as currently written, Dow's XL proposal seeks regulatory relief in the operation of their wastewater treatment system, and the solids generated from that system, while failing to meet current regulations. The failure of Dow's treatment system would indicate the company can reasonably assume that major changes to that system will be required in the near future to ensure compliance. According to the EPA, the successful XL proposal should "commit the project to environmental performance that is superior to what would be achieved through compliance with current and reasonably anticipated future regulation." Therefore, an XL project related to the company's wastewater treatment system does not appear to meet EPA's criteria for XL proposals.

Dow's Proposal Will Reduce Citizen Input in Operations of Concern to the Public

In the last several years, citizens and environmental organizations have been particularly concerned about Dow's operation of incinerators on site, historical contamination on site, and the wastewater treatment plant. Citizen suits have been filed contesting the company's proposal to burn dioxin-contaminated waste, and a suit is now underway related to effluent from the company (referred to above). Dow's current proposal raises the specter of limiting official citizen participation in the permitting process, as required by law, in these critical areas of concern.

________________________________________
* Other stakeholders must be consulted for the Louisiana and Texas portions of the proposal.

Dow's Proposal Demonstrates Neither Exellence Nor Leadership

According to EPA's guidance for XL proposals, successful proopsals should descibe the innovtions expected to be tested in the project, including processes, technologies, management practices, or approaches to environmental regulation. The project should also demonstrate excellence in enhanced environmental performance. In contrast, the proposal for Midland includes no discussion of the innovations expected from this effort. The proposal includes no source reduction plans, and seems to focus primarily on modifying and updating waste disposal facilities.

Dow's Proposal Fails to Demonstrate the Need for Regulatory Relief to Achieve Greater Environmental Performance

The preliminary proposal fails to explain the need for regulatory relief, or to make the case that regulatory barriers prevent the implementation of new systems, processes or operations that would result in improved environmental performance. The relaxation of regulations - hard won protections achieved by yhears of broad-based citisen efforts and critical to the protection of health and the environment - must be of necessity and only for the purpose of superior environmental performance. That case has not been made at all, nor is it persuasive to suggest without evidence or examples that barriers exist.

In a recent voluntary pollution prevention initiative Dow, along with several other companies, engaged in a multistakeholder process to identify barriers to pollution prevention. An independent consultant reviewed Dow's La Porte, Texas facility and found numerous pollution prevention opportunities and no barriers to their implementation. The pollution prevention opportunities identified would result in substantial reductions in Dow's emissions to the environment, so substantial, in fact, that the company could shut down its on-site incinerator. Although no regulatory barriers were identified, the company has yet to implement the recommendations. Dow has indicated they may apply this process at other faciilties.

Dow's Proposal Fails to Include Goals Specific to XL

In recent discussions with the company, Dow has indicated they are about to announce corporate environmental goals involving energy, waste and emissions. For example, the company is set to announce a goal of 50% reduction in waste generation by the year 2002, a 90% reduction intargeted organic emissions, and by the year 2005, a 1/3 reduction in the number of incinerators globally. There appears to be no goal or strategy listed in your proposal that promises an exceedance of these goals, or addresses project XL requirements specifically.

Further, a commitment to clear and enforceable goals, and publicly accessible verficiation and monitoring of progress are not explicit int he preliminary proposal. President Clinton has directed the Projects to be "transparent so that citizens can exmaine assumptions and track progress toward meeting the promised results."

Dow's Proposal Fails to Assure Meaningful Stakeholder Involvement

According to the EPA guidelines, the EPA should only "approve for implementation projects with broad community support." EPA should also be "committed to an open FPA development process, wherein all workers and communities who will be affected by the project have an opportunity to participate in the process that allows for full and informed discussion." Finally, the EPA has committed to ensuring that resource constraints do not prevent local participation from occurring in the development, implementation and oversight of XL projects. Given these commitments, we believe meaningful citizen participation must include, for instance, resources to hire independent experts to review proposals. Although Dow has expressed a willingness to provide resources for stakeholder participation, thus far neither the company nor the EPA have geen explicit about a mechanism to provide that support. Nor have we seen any guidelines regarding the use of those resources, or assurances, for instance, that an independent expert could be used. In order to assure meaningful participation, these issues must be resolved.

Thank you for approaching us about this proposal. We believe the idea of a multikstakeholder process to achieve environmental gains with greater cost-effectiveness has promise. We have been encouraged by our ongoing dialogue with Dow on other issues. We hope a proopsal we can support will be forthcoming from Dow.

Sincerely,

Steve Blackledge
PIRGIM
Tracey Easthope, MPH
Ecology Center
Diane Hebert Terry Miller
Lone Tree Council
Carol Misseldine
Michigan Environmental Council
Mary Sinclair, Ph.D.
Ann Hunt
Citizen's for Alternatives for Chemical Contamination


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