The Hexavalent Chromium Spill That Never Happened: Without Disasters, Where Does Environmental Litigation Come From?
Kathleen Ross
On July 29, 2022, Tribar Manufacturing, an auto supply manufacturer, improperly released 10,000 gallons of toxicant-containing discharge into the sewer system of Wixom, Michigan.[1] The release overwhelmed the Wixom wastewater treatment plant and entered Norton Creek, a tributary of the Huron River, before being discovered.[2] Early reporting suggested that thousands of gallons of the toxic chemical compound hexavalent chromium had made its way into the Huron River, prompting panic and anger in downstream communities.[3]
A number of factors contributed to the furor. Hexavalent chromium is a well-known carcinogen, made famous by the Hinkley groundwater contamination incident and the blockbuster film adaptation of the litigation it spawned.[4] News of the release prompted advisories from the Michigan Department of Health and Human Services to avoid contact with the Huron River–a common recreation spot for downstream residents and, even more importantly, a source of drinking water for many communities.[5] The culprit, Tribar Manufacturing, was already disproportionately responsible for the Huron River’s ongoing “do not eat fish” advisory, spurred by “astronomical” levels of PFAS contamination.[6] And, as details related to the toxic release emerged, a picture formed of almost comically callous irresponsibility at Tribar. One detail in particular seized the attention of both local press and state investigators: the plate tank operator on duty at the time of the release overrode waste treatment alarms 460 times as the tank emptied into the Wixom sewer system.[7]
As the public fumed, environmental groups seized the opportunity to promote a polluter pay bill in the Michigan legislature.[8] Polluter pay laws ensure that polluters bear the costs of pollution abatement.[9] While Michigan once had among the strongest polluter pay laws in the country, the law was effectively dismantled in 1995.[10] Absent strong polluter pay laws, communities can bear the brunt of cleanup costs. At the time of the hexavalent chromium release, for example, Ann Arbor, Michigan taxpayers had already spent $1.5 million installing water treatment technology to filter out the PFAS contaminants traced in large part to Tribar.[11] The city plans to spend another $100 million upgrading its water treatment system in anticipation of future contaminants.[12]
With a particularly frustrating environmental disaster commanding the attention of Michigan residents, environmental groups and local leaders threw their weight behind House Bill 4314 and Senate Bill 58.[13] These bills aimed to reintroduce strong polluter pay laws but had languished within committees since their introduction in early 2021.[14] Then something surprising happened: the details of Tribar’s toxic release turned out to be dramatically overstated.[15] State regulators estimated that roughly twenty pounds of chromium, rather than thousands, had reached the Huron River.[16] Water testing showed that most of the chromium had transformed into its benign trivalent form.[17] The Michigan Department of Environment, Great Lakes, and Energy released a report lowering its discharge estimate, and the Michigan Department of Health and Human Services lifted its no contact advisory.[18] As media attention and public outcry died down, the fate of the polluter pay bill became unclear, although some hope remains that a Democratic majority in the state legislature might finally give the bill a hearing.[19]
Environmental groups were right to seize the opportunity offered by what initially appeared to be a spectacular environmental disaster. Our entire framework of modern environmental regulation was, arguably, spurred by environmental-disaster-as-spectacle. The tremendous spectacle of a river on fire is widely credited as the catalyst for the formation of the Environmental Protection Agency and the passage of the Clean Water Act.[20] with Silent SpringRachel Carson turned the spectacle of dying birds into a national movement to regulate the chemical compound DDT–ultimately one of the first acts of the nascent EPA.[21] The spectacle of a hazardous waste disaster in the Love Canal, New York propelled the passage of the Comprehensive Environmental Response, Compensation, and Liability Act.[22] The “vivid nature” of environmental disasters creates a unique opportunity to overcome legislative inertia and stagnation.[23]
Unfortunately, “legislative stagnation” is a broadly accurate description of the contemporary state of environmental lawmaking.[24] At the federal level, environmental regulation exists in a state of “legislative logjam,” defined by total congressional “abdication of… environmental lawmaking responsibilities.”[25] Progress under the initially groundbreaking environmental legislation of the 1970s has largely plateaued. Efforts to protect drinking water are a prime example. Ann Arbor’s planned $100 million investment in water treatment is a direct response to this stagnation, as regulations under the Clean Water Act struggle to keep up with new information about pollutants.[26] In the words of Ann Arbor Public Services Area Administrator Brian Steglitz, “waiting for the EPA is just not going to be the solution any longer, because they’re just too slow.”[27]
This legislative stagnation begs a question that feels strange to ask: are there no longer enough environmental disasters to pass environmental legislation? Or, perhaps more accurately, are the disasters that exist not spectacular enough? In discussing the ability of “vivid environmental events” to overcome legislative stagnation, Molly Walker Wilson and Megan Fuchs differentiate between “dramatic, unusual, emotionally charged environmental events” and “cumulative, long-term events” that are “relatively less salient, or memorable.”[28] It seems possible that the successes of existing environmental legislation have foreclosed many of the most “dramatic, unusual, emotionally charged environmental events.” The rivers are no longer on fire, and the bald eagle is no longer endangered. In the absence of such spectacular events, can slow, cumulative harm spur legislative response? The Michigan legislature’s willingness to restore polluter pay laws–in the absence of a vivid, dramatic hexavalent chromium spill–may be a good indicator.
Kathleen Ross is a Junior Editor with MJEAL. Kathleen can be reached at [email protected].
[1] Garret Ellison, Weeks after Tribar chromium waste spill, many questions remainMLive (Sept. 9, 2022), https://www.mlive.com/public-interest/2022/09/weeks-after-tribar-chromium-waste-spill-many-questions-remain.html.
[2] Keith Matheny, Investigation deepens into Huron River contamination from Wixom auto supplierDetroit Free Press (Aug. 3, 2022), https://www.freep.com/story/news/local/michigan/2022/08/03/huron-river-hexavalent-chromium-spill/10230514002/.
[3] Second Toxic Spill In 4 Years To Huron River Should Set Off Alarms For Michigan’s LeadersMichigan League of Conservation Voters (Aug. 2, 2022), https://michiganlcv.org/news/second-toxic-spill-in-4-years-to-huron-river-should-set-off-alarms- for-michigans-leaders/.
[4] See Erin Brokovich (Universal Pictures 2000).
[5] Garret Ellison, Huron River ‘no contact’ advisory remains after low pollutant detectionsMLive (Aug. 8, 2022), https://www.mlive.com/public-interest/2022/08/huron-river-no-contact-advisory-remains-after-low-pollutant-detections.html.
[6] Paula Gardner, ‘Astronomical’ PFAS level sets new Michigan contamination milestoneMLive(Sept. 27, 2019), https://www.mlive.com/news/2018/09/astronomical_pfas_contaminatio.html
[7] Ellison, supra note 1.
[8] See, eg, Keith Matheny, State regulators: Company overrode alarms 460 times as chemical flow toward the Huron RiverDetroit Free Press(Aug. 10, 2022), https://www.freep.com/story/news/local/michigan/2022/08/10/huron-river-chemical-tribar-manufacturing-hexavalent-chromium/ 10287627002/ (comments from the Sierra Club and Clean Water Action); Recent River Spills a call to action to pass Polluter Pay legislationMichigan League of Conservation Voters (Aug. 17, 2022), https://michiganlcv.org/news/recent-river-spills-a-call-to-action-to-to-pass-polluter-pay-legislation/ .
[9] Jonathan R. Nash, Too Much Market? Conflict between Tradable Pollution Allowances and the “Polluter Pays” Principle, 24 Harv. Envtl. L. Rev. 465, 468 (2000).
[10] Kelly House, Michigan Democrats aiming to erase business friendly environmental lawsGreat Lakes Now (Jan. 4, 2023), https://www.greatlakesnow.org/2023/01/michigan-democrats-aiming-erase-business-friendly-environmental-laws/.
[11] Kelly House & Lester Graham, For Ann Arbor water managers, ongoing battle to keep toxic chemicals at bayBridge Michigan(Feb. 15, 2023), https://www.bridgemi.com/michigan-environment-watch/ann-arbor-water-managers-ongoing-battle-keep-toxic-chemicals-bay.
[12] id.
[13] Michigan Residents, Lawmakers Call for Polluter Pay Laws in Aftermath of Tribar Hexavalent Chromium SpillClean Water Action (Aug. 10, 2022), https://cleanwater.org/releases/michigan-residents-lawmakers-call-polluter-pay-laws-aftermath-tribar-hexavalent-chromium.
[14] Ryan Stanton, Ann Arbor-area leaders call for reinstating strong polluter-pay laws in MichiganMLive (Sept. 9, 2022), https://www.mlive.com/news/ann-arbor/2022/09/ann-arbor-area-leaders-call-for-reinstating-strong-polluter-pay- laws-in-michigan. html.
[15] Garret Ellison, Huron River chromium spill much smaller than feared, EGLE saysMLive(Aug. 12, 2022), https://www.mlive.com/public-interest/2022/08/huron-river-chromium-spill-much-smaller-than-feared-egle-says.html.
[16] id.
[17] House & Graham, supra notes 11.
[18] Ellison, supra note 15.
[19] house, supra note 10.
[20] Christopher Maag, From the Ashes of ’69, a River RebornNY Times (June 20, 2009), https://www.nytimes.com/2009/06/21/us/21river.html.
[21] Eliza Griswold, How ‘Silent Spring’ Ignited the Environmental MovementNY Times (Sept. 21, 2012), https://www.nytimes.com/2012/09/23/magazine/how-silent-spring-ignited-the-environmental-movement.html.
[22] Patrick E. Tolan, Jr., Natural Resource Damages Under Cercla: Failures, Lessons Learned, and Alternatives, 38 NML Rev. 409, 409 (2008).
[23] Molly J. Walker Wilson & Megan P. Fuchs, Publicity, Pressure, and Environmental Legislation: The Untold Story of Availability Campaigns, 30 Cardozo L. Rev. 2147, 2219-2220 (2009).
[24] See, egEmily Cochrane & Lisa Friedman, House Democrats Push Environmental Bills, but Victories Are Few, NY Times(Jan. 10, 2020), https://www.nytimes.com/2020/01/10/us/politics/environment-climate-democrats-congress.html; Rosemary Misdary, Why crucial climate bills have stalled in liberal New York despite the deepening crisis, Gothamist (Aug. 2, 2022), https://gothamist.com/news/new-york-state-lawmakers-on-why-some-big-climate-bills-have-stalled-despite-the-deepening- crises; Scott Wyland, Proposed ‘green amendment’ stalls again in LegislatureSanta Fe New Mexican(Mar. 9, 2023), https://www.santafenewmexican.com/news/local_news/proposed-green-amendment-stalls-again-in-legislature/article_e39c6d84-be9e-11ed-8c27-6b7070589f66 .html.
[25] Richard Lazarus, Environmental Law Without CongressJ. of Land Use & Env’t L., 15, 15 (2014).
[26] House & Graham, supra notes 11.
[27] id.
[28] Walker & Fuchs, supra note 23.