Overview:
- State employee Art Ostaszewski alleges Michigan regulators failed to stop BASF's toxic discharges into the Detroit River.
- Ostaszewski claims EGLE's Law Enforcement Division knowingly allowed BASF's water quality violations for decades.
- Documents reveal BASF's groundwater contamination significantly exceeds regulatory standards.
A complaint filed by a state employee with the Michigan Attorney General’s office Thursday alleges that state regulators have failed to stop chemical giant BASF from releasing toxic chemicals into the Detroit River from its Wyandotte facility over several decades.
Art Ostaszewski, currently employed by the Michigan Department of Environment, Great Lakes, and Energy, alleges that EGLE’s Law Enforcement Division knowingly aided and abetted BASF Corporation’s ongoing criminal water quality violations.
He claims they allowed the discharge of waste into the Great Lakes and a Critical Assessment Zone near Wyandotte’s public drinking water intake and permitted the company to violate a consent decree with the state of Michigan. A CAZ is an area around a surface water intake that’s considered potentially vulnerable to contamination.
Ostaczewski, who now serves as the drone pilot program coordinator for the agency, said he worked on the BASF site and other contaminated sites as a scientist, environmental analyst, and aquatic biologist for the past 30 years. “I have a long history,” he told Planet Detroit.
Documents Ostaczewski shared with Planet Detroit show that up to 60 gallons of contaminated groundwater per minute have been flowing from the highly polluted site into the Detroit River, carrying toxic PFAS chemicals, mercury, arsenic, napthalene, benzene and other chemicals. Some of this water has had a pH as high as 13.22. The Environmental Protection Agency defines substances with a pH of 12.5 or above as hazardous waste.
Ostaszewski said that monitoring in 2021 found chemical pollution exceeded water quality standards designed to protect aquatic life.
“It’s the level of contamination that would kill aquatic life,” Ostaszewski told Planet Detroit.
The complaint details a list of “asks,” including that the AG should compel EGLE staff to enforce the law, establish a public-facing information portal, enforce drinking water CAZs and establish a formal avenue for whistleblower complaints.
EGLE spokesperson Josef Greenberg confirmed that the agency received the complaint and said it would need to review it before offering further comments.
The complaint raises concerns about the safety of Wyandotte’s drinking water supply, which has an intake 800 feet from the BASF property. However, a 2022 study did not find an immediate threat. The pollution also imperils wildlife in the Detroit River, which the EPA considers an area of concern. The river already contains an estimated 3.5 million cubic yards of toxic sediment.
EGLE officials have said that the Environmental Protection Agency is making progress on addressing the discharges, while the complaint alleges agency staff said they are legally unable to address what they acknowledged were criminal violations. The EPA is the lead agency for the site, although BASF is still under a consent order with the state of Michigan from 1986.
Planet Detroit previously reported that BASF was Wyandotte’s largest taxpayer, paying the city $1.5 million in property taxes in 2022.
On the advice of his union attorney, Ostaszewski said he’s claiming protection under Michigan’s Whistleblower Protection Act. He said he felt compelled to file the complaint after seeing colleagues in his agency have their “lives ruined” following the Flint water crisis.
“I know staff at my level whose lives were ruined by going along with the lead copper rule at the time and doing what management told them to do, you know, plod along,” he said. ”I was afraid, personally. I was afraid I would get wrapped up in this if I don’t say something.”
‘Entrapment by estoppel’
In 2023, Ostaszewki submitted an internal complaint to EGLE’s Law Enforcement Division concerning BASF’s toxic and hazardous waste discharges. He said this complaint included records showing that managers at EGLE, from the unit level up to the director level, were aware that BASF was exceeding water quality standards.
However, the Law Enforcement Division did not act on his complaint. In his complaint to the AG, Ostaszewski said he met with Vence Woods and Dan Kennedy of EGLE’s environmental investigation section and neither disagreed with his assessment that BASF’s releases were felony violations of Michigan law.
According to Ostaszewki’s complaint, Woods said he had been advised not to pursue action against BASF because the company had been in violation for so long without action that it could constitute “entrapment by estoppel.”
Entrapment by estoppel is a legal defense that applies when a government official gives a defendant false or misleading advice about the legality of their actions, leading them to believe that what they are doing is lawful.
LEARN MORE
Regulators fail for 43 years to stop BASF from ‘staggering’ daily toxic waste spill into Detroit River
The pollution enters the river just upstream from the City of Wyandotte’s drinking water intake.
Contaminated water likely not poisoning city, officials claim
State and federal officials noted plans are in motion to rein in the estimated 72,000 gallons per day of contaminated wastewater flowing into the Detroit River upstream of Wyandotte’s drinking water intake.
What’s in the water?
According to the complaint, BASF is violating surface and drinking water regulations and a 1986 consent decree between the state and BASF, in which the company agreed to take actions to stop polluted water from leaving the site.
Documentation of pollution at BASF has generated some eyebrow-raising numbers. In addition to the extremely high pH values, PFOS, one of the most dangerous types of the so-called forever chemicals, was detected at 359 parts per trillion, according to the 2022 EGLE review of groundwater venting at the site.
That’s 22 times higher than Michigan’s groundwater cleanup criterion of 16 ppt, which EGLE established in 2022, and 89 times higher than the current federal drinking water standard of 4 ppt.
That report determined that because of the location of Wyandotte’s drinking water intake and the large volume of Detroit River water mixing, the venting groundwater will not “cause a public health impact that requires immediate attention.” Although it said this analysis “does have associated uncertainty” and that a “particle tracking model” or “plume model” could be used to understand the situation better.
Yet, Wyandotte’s drinking water intake is just 1700 feet from the “seepage face” where contaminated groundwater is entering the river. The 2022 review recommends a CAZ of 2,000 feet around the water intake.
PFAS has been found in Wyandotte’s drinking water, although not consistently. Planet Detroit previously reported that the state and Wyandotte were not regularly testing for several contaminants found at the BASF site, including cyanide, arsenic and sulfate.
What’s the plan?
In an email to Ostaszewki on Oct. 12, 2022, Tracy Kecskemeti, assistant director of EGLE’s Materials Management Division, said “real progress is finally being made on this site.”
She said if EGLE were to take a separate enforcement action to address the same problem EPA was working on, “BASF would likely stop all work to fight us in federal court,” further delaying corrective action.
BASF has had a groundwater extraction system on the site since July 2023 as an interim measure. The extracted groundwater is sent to the Downriver Utility Wastewater Authority for treatment.
Company spokesperson Molly Birman told Planet Detroit that it is working with EPA and EGLE on designing and constructing a longer-term solution consisting of an underground physical barrier along the north, east, and southern property lines.
A video on BASF’s website illustrates how the underground physical barrier would block and redirect groundwater to the surface, where it could be treated. EPA approved the 30% design for the project in 2023. BASF submitted the 60% draft to the agency in March and is awaiting a response.
“Our commitment to implementing the physical barrier remedy remains unwavering,” Birman said. “We will continue to work with the appropriate regulatory agencies to complete the design, installation and operation of the long-term remedy as expeditiously as possible.”
According to a 2023 EPA presentation, construction on the project “could begin” in 2027.
Ostaszewki said if this plan is approved, BASF may not even begin implementing the system until 2030.
“This means the agencies will allow BASF to continue polluting at toxic and hazardous levels for the next six years,” he said.
EPA did not immediately respond to Planet Detroit’s request for comment.