Added on June 3, 2019  Marsha Chartrand

Michigan lobbyist for polluter wrote law easing toxic cleanups, emails show

By Jim Malewitz, Craig Mauger (Bridge)

LANSING — In a single year, a self-described “lawyer-lobbyist” went from working on behalf of a company accused of poisoning groundwater to writing a law that could weaken Michigan’s standards for pollution cleanups.

A joint investigation by Bridge Magazine and the Michigan Campaign Finance Network found that attorney Troy Cumings  last year represented Wolverine Worldwide in behind-the-scenes negotiations concerning litigation brought against the company by then-Attorney General Bill Schuette over contamination from one of the company’s tanneries in Rockford.

At the same time, Cumings was board member or record keeper for fundraising accounts tied to Schuette, who was running for governor as a Republican.

More than 500 pages of internal emails produced under the Freedom of Information Act also show that Cumings, a 44-year-old lobbyist from Warner Norcross and Judd of Grand Rapids, later helped write legislation that makes it more difficult for state environmental regulators to update pollution cleanup standards for hundreds of chemicals.

The Legislature cleared the 50-page bill, Senate Bill 1244, in the final week of the 2017-2018 session. Outgoing Gov. Rick Snyder, a Republican, signed it into law on Dec. 31. That came days after dozens of Department of Environmental Quality staffers, in a rare public veto plea, said the changes would “threaten the health and safety of the people of Michigan.”

“The polluters responsible for poisoning drinking water were in back rooms writing the legislation,” said Bob Allison, deputy director of the Michigan League of Conservation Voters.

“It appears that we decided to bring them into the offices and let them sit around and write the rules here — all when the health of millions of Michiganders is at risk.”

Cumings and Wolverine said he didn’t write the bill on behalf of the shoemaker.

“Wolverine Worldwide is aware of SB 1244, but has not been involved in it, taken a position on it, or retained any lobbyists in connection with it,” the company said through a spokesman.

Cumings, who represents an array of interests including a hospital and health plan, declined to disclose his client, citing attorney-client privilege.

The situation raises the possibility that a polluting company could pay someone to write legislation to reap future benefits — all without the public knowing.

Cumings downplayed that possibility, noting that he made compromises with environmentalists. Internal documents show he relented on some points of contention. He compared his work to “model legislation” used to introduce similar ideas as bills in multiple states.

“At the end of the day, whatever any lawyer drafts, it’s still vetted out,” Cumings said.

“The Legislature still has to review it. The administration. Everybody gets a chance in the process,” he continued. “A lot of legislation starts with model legislation, right? Well, who drafted that model legislation? Right?”

Truth test?

At issue is how Michigan regulators determine unsafe levels for chemicals polluting air, soil and water — and how much cleanup a polluter or developer must perform. The state is tracking nearly 7,000 sites in need of cleanups, nearly half of which are likely “orphans,” meaning the original polluter is gone and taxpayers bear the burden.

Sen. Jim Stamas, R-Midland, introduced the bill to overhaul how regulators set the standards.

Stamas, who did not return a message seeking comment, at the time echoed arguments from the Michigan Chamber of Commerce, Michigan Chemistry Council and other industry groups: the previous rules gave too much leeway to state employees and discouraged developers from rehabbing polluted sites.

Jason Geer, director of energy and environmental policy for Michigan Chamber of Commerce, argued in his committee testimony that businesses had faced uncertainty when it came to determining how much it would actually cost to clean up a contaminated site.

“It’s impossible to finance that,” he said. “It’s impossible to justify an investment.”

Democrats and environmentalists said the bill would add red tape to chemical updates as scientists warn cleanup criteria for hazardous chemicals such as PFAS might need strengthening.

Nick Occhipinti, a lobbyist for the Michigan League of Conservation Voters, was among those asking lawmakers to tap the brakes during a House committee meeting in December.

“The combination of toxicological, remediological, bureaucratic and legal skills needed to understand the impact of this bill is immense,” he said before questioning a carveout for “polychlorinated dibenzodioxin and dibenzofuran congeners,” commonly known as dioxins, from certain standards.

The bill said those chemicals, which have long polluted the Tittabawassee River in Saginaw, weren’t likely to leach from soil into groundwater. Occhipinti said experts should weigh in on whether that and other provisions were true.

The House committee approved the bill five minutes later, and the full House sent the bill to Snyder later that day.

Rep. Abdullah Hammoud, D-Dearborn, who served on the House committee that weighed the bill, said he worried about not knowing who Cumings was representing.   

“That’s extremely unsettling,” Hammoud said.

Emails show staffers in Snyder’s office prioritized the bill during his final days in office. They invited one environmentalist — James Clift, then with the Michigan Environmental Council — into the final negotiations over the language, and he won a few concessions.

Clift successfully fought to change language that would have eliminated months-old cleanup standards for PFAS, chemicals linked to cancers and other health risks that regulators are increasingly flagging nationwide.

But Snyder’s office leaned heavily on Cumings.

That included one lengthy weekend exchange days before the House sent the bill to Snyder. Angela Ayers, Snyder’s director of strategy, wrote that his staff wanted to finalize the language by Sunday, with Cumings and Clift offering their support in writing.

What ensued was a debate between Cumings and Clift over how much freedom to give regulators to determine what science to use in determining unsafe levels for specific chemicals.

Cumings labeled one of Clift’s ideas for giving state regulators more leeway compared to federal standards as “not acceptable.”

Working for Schuette — and Wolverine

Cumings drafted the bill nearly a year after the state sued one of his clients in federal court: Wolverine.

That followed revelations that toxic PFAS chemicals leached into hundreds of drinking water wells from a former Wolverine Tannery in Rockford and dump sites in neighboring Belmont.

Wolverine used the hazardous chemicals to waterproof hides and leathers that were buried in northern Kent County, and the state has since launched studies on how they affected public health.

In its complaint, Schuette’s office said Wolverine was responsible for conditions that “may present an imminent and substantial endangerment to human health and the environment.”

Snyder’s administration called Wolverine “responsive” in investigating the contamination and called the lawsuit a formality.

“This court filing is the next step in formalizing the process, timelines and expectations the state has for the company moving forward,” a DEQ press release said at the time.

Wolverine denies liability in the case and has since sued chemical manufacturer 3M. Wolverine argues that company bears some responsibility for that contamination because it manufactured the toxic chemicals used in Hush Puppies and other products.

Two West Michigan townships — Plainfield and Algoma — have also intervened in the case, arguing Wolverine should pay to hook up residents to water free of PFAS.

The state’s lawsuit on Jan. 10, 2018, came four months after Schuette announced his run for governor.

Cumings, who directed Schuette’s transition team in 2010, has been involved with numerous fundraising accounts tied to the former attorney general. Cumings is listed as the treasurer for one Schuette-tied nonprofit, On Duty for Michigan, and the secretary for Serve First Foundation, a nonprofit that funded the publication of a 2015 book written by Schuette called “Big Lessons From A Small Town.”

The U.S. District Court in Grand Rapids does not list Cumings as an attorney in the ongoing lawsuit by the state against Wolverine. But Bridge and MCFN obtained emails and text messages showing he arranged behind-the-scenes talks on Wolverine’s behalf in the weeks and days leading up to the lawsuit. In one email thread from December, a state attorney said Cumings wanted to talk about a potential settlement.

In a string of text messages, Cumings texted Susan Leeming, then-DEQ’s director of external relations on Jan. 3 of last year.

“Time to meet today: Just me and you?,” Cumings asked.

“I’m slammed. Next week?” she replied. “About?”

“WWW…” he replied, a common acronym for Wolverine Worldwide.

“I don’t think it’s appropriate,” Leeming texted back.

Apologizing, Cumings responded that he would “go in a different direction.” He told Leeming he thought she was his “point of contact” while the assistant attorney generals were gone.

A day later, Cumings emailed staffers for Snyder, Schuette, DEQ and Wolverine to set up a conference call for Jan. 5, which he wrote he would join. The email’s subject line: “meet to discuss WWW.”

On Jan. 9, one day before Schuette’s office filed the lawsuit, Cumings texted Leeming. “Sue, where do we stand on messaging issues? The call would be with the team, not just you and me.”

“Mel is just starting to work on this. We’ll call tomorrow,” Leeming replied, possibly referring to DEQ spokeswoman Melanie Brown.

Neither DEQ, Wolverine nor Cumings would answer questions about his role in the litigation or how the settlement talks played out.

Doug Van Essen, an attorney representing the townships suing Wolverine, called it  “highly disturbing” for Cumings to participate in legal negotiations on Wolverine’s behalf while serving Schuette politically.

“It’s certainly not healthy. To me, that’s a conflict of interest,’ Van Essen said. “Schuette is the AG. I don’t see how you can possibly represent his personal interest and also negotiate with him on the professional side.”

Cumings disagreed.

“No conflict. I can’t get into the client stuff,” he said, saying his work for Schuette and interactions with his office on Wolverine’s behalf were in “two different spheres.”

Schuette told Bridge and MCFN in a voicemail: “There is no conflict.” Schuette did not elaborate nor did he respond to a followup message.

Van Essen said he did not know how or whether Cumings’ dual relationship with Schuette and Wolverine affected the litigation case against Wolverine.

At the same time, Van Essen saw Cumings’ toxic cleanup bill flying through the Legislature. Fearing the changes might complicate future cases like his, Van Essen and other West Michigan colleagues called on their representatives to oppose the bill.

Lame duck rush

The push to overhaul Michigan’s cleanup standards dates back to the early days of Snyder’s administration. Irreconcilable differences may have led to the votes in December 2018 as his second term ended.

For years, industry representatives, including Cumings, environmental regulators and environmentalists met to hash out the new standards, aiming to agree on recommendations for action.

By 2017, however, Cumings, said DEQ employees pursued their own ideas and clashed with industry representatives.

Over the next year, industry representatives and DEQ staffers stalemated in three areas: how closely toxic chemical thresholds should mirror those of the federal government, when to assume a single-event exposure to a chemical is enough to trigger cleanup standards and how to handle vapor intrusion (when vapor-forming chemicals enter a property).

“I would say we were really close,” Cumings said. “But we just couldn’t quite get there.”

With all of the work that had been put in during the Snyder administration on the cleanup standards, Cumings said in the fall of 2018, Snyder’s administration realized that a legislative solution would have to be pursued.

“I think this is a reasonable proposal,” Timothy O’Brien, senior adviser to then DEQ-Director Heidi Grether said in early December.

“At this point I think the question for industry is not whether they are completely comfortable, but whether this is something they can live with. To me, this is an area that you have to come down on the side of environmental and public health precaution.”

Concerns going forward

The new law’s impact may not be known for years — until the Michigan Department of Environment, Great Lakes, and Energy (The reshaped version of the DEQ, known as EGLE) offers rules to update the safe threshold for various chemicals.

Clift, now a senior adviser at EGLE,  said Whitmer has yet to request those rules. Once she does, however, the agency will grapple with several changes under the new law.

Among them: It must use chemical toxicity values from a U.S. Environmental Protection database called IRIS –  unless the agency undergoes a lengthy process that includes public notices and meetings with “stakeholders.”

Many chemicals in IRIS haven’t been updated for years or decades, even as research elsewhere — including federal agencies, such as the Centers for Disease Control and Prevention — show greater health risks.

Clift said the bill’s biggest effect would be slowing down updates on certain chemicals — particularly those with outdated thresholds in IRIS.

Another controversial law GOP lawmakers enacted in lame duck may slow down the process further: It set up panel heavy with industry representation to review new environmental rules.

“I worry that this is just adding time and effort to a process that, in my mind, already had a sufficient amount,” Clift said. “Until we get those rules through, we’re worried we’re not being as protective as we could be.”

Clift said the agency plans to keep the review panel “involved in every step of the process,” to avoid any delays or efforts to block any new rules.