Ann Arbor dioxane polluter vents frustration with local officials in new court filings

Gelman plume map

A map of the Gelman dioxane plume spreading through the Ann Arbor area, moving east through the city's west side toward West Park and branches of the Allen Creek drain system that discharge to the Huron River. Gelman Sciences is removing water from the ground using extraction wells and then treating it to remove dioxane. Treated water with lower levels of dioxane is then discharged to Honey Creek, which flows to the Huron River upstream of Barton Pond, Ann Arbor's main municipal water supply.

ANN ARBOR, MI — With hearings in the Gelman dioxane plume legal case coming up in March, polluter Gelman Sciences is fighting back again.

In court filings dated Jan. 7, Michael Caldwell, Gelman’s attorney, argued against allowing the city of Ann Arbor, Washtenaw County, Scio Township and the Huron River Watershed Council to remain as intervening co-plaintiffs in the state’s litigation against the polluter.

Caldwell pointed to recent failed attempts to negotiate a new cleanup plan with the local parties and argued Gelman should only have to deal with the state of Michigan.

“Gelman continues to object to the involvement of the intervenors in negotiations regarding a remedy that had, for more than 30 years, proceeded only as between Gelman and the regulator authorized by law to oversee precisely this sort of remediation,” Caldwell wrote.

Gelman is the former Scio Township filter manufacturer responsible for a large plume of the toxic chemical 1,4-dioxane that’s been slowly spreading through the area’s groundwater for decades, threatening water supplies.

When Judge Tim Connors allowed the local parties to intervene in the Washtenaw County Circuit Court case four years ago over Gelman’s objection, it was to give local officials a seat at the table in negotiations between the polluter and the state on a new consent judgment, Caldwell said.

“By that point, the state and Gelman had already reached consensus on a revised agreement that would have fully incorporated the new statewide cleanup standards made effective on October 27, 2016,” Caldwell wrote in a court filling last week. “But for the ill-fated interventions, Gelman and the state would have entered the new consent judgment in 2017 and the fully protective remedy addressing the new statewide standards would be well underway.”

Local officials view it differently. Once given a seat at the table, they spent years negotiating through their attorneys for a better cleanup and more monitoring of the plume, getting Gelman to make more concessions. But they ultimately rejected the proposed deal, arguing it wasn’t enough.

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“In regard to the legal case, we are continuing to work with the lawyers to present our strongest arguments to the judge as to why there needs to be more action taken to clean up the site and protect public health,” said County Commissioner Jason Morgan, D-Ann Arbor.

Despite believing Connors erred in allowing the local parties to intervene four years ago, Gelman, which fought the matter all the way up to the Michigan Supreme Court, nevertheless participated in good faith for almost four years in the intervention negotiations, Caldwell told the court last week.

That process produced a comprehensive plan that included remedial actions “well beyond those necessary to provide a protective remedy,” Caldwell argued.

The recent rejection of the cleanup deal and settlement by local elected officials was “a surprising blow that wiped away four years of work,” Caldwell wrote in a court filing.

Local elected officials went against the recommendations of their legal and technical experts and were instead swayed by “vocal opposition from a small group of longtime critics of the cleanup, endorsing a complete repudiation of the state’s supervision of the site and the pursuit instead of federal Superfund status,” Caldwell told the court.

“They apparently believe either that a ‘better’ resolution is somehow available through this court or the political process, or that their interests will be better protected by the U.S. Environmental Protection Agency ... than the state. Gelman disagrees in all respects,” he wrote.

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At this point, there are two options: The court can dismiss the local parties and enter a settlement between the state and Gelman, or the local parties can file complaints so the merits of their claims can be litigated, Caldwell said.

What is not an option, but what the court has nevertheless ordered, he said, is to hold a hearing to weigh evidence and order a remedy in lieu of a negotiated consent judgment.

“This constitutes palpable error for which reconsideration is required,” Caldwell argued, asking the judge to reconsider holding hearings scheduled for March 8-9.

The Ann Arbor City Council held a special closed-session meeting with its legal counsel Wednesday, Jan. 13, to discuss the latest issues in the litigation.

City Attorney Stephen Postema did not respond to a request for comment.

In an interview Thursday, Mayor Christopher Taylor said the polluter’s strategy has been to continue to try to delay and this is just another example of that.

The city will continue to fight for a better cleanup and more monitoring, Taylor said.

“The preservation of Ann Arbor’s drinking water has always been and continues to be our highest priority,” he said. “And we’re going to continue to work to provide clean and safe drinking water for decades to come, both in the courts, in the Legislature and through the maintenance and improvement of our municipal water system.”

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Connors cannot modify the consent judgment governing the plume without the consent of the parties, including Gelman, Caldwell argued, saying any award of relief to the local parties and against Gelman in the form of a new remedy would violate Gelman’s right to due process.

“Gelman is entitled to an opportunity to be heard on its meritorious defenses to the intervenors’ claims, which have not even been filed with the court,” he wrote.

Ann Arbor, Washtenaw County, Scio Township and Ann Arbor Township are separately exploring the possibility of a federal Superfund cleanup through the EPA.

Local officials sent letters to Gov. Gretchen Whitmer recently, seeking her concurrence, but haven’t heard back yet.

If the EPA puts the Gelman plume on the National Priorities List for a Superfund cleanup, the court would no longer have jurisdiction over it, Caldwell told Connors. In light of that, further efforts to produce a revised consent judgment through the court would be futile, he said.

“Further, proceeding with a costly and time-consuming remedy hearing would be a waste of the parties’ and this court’s resources, and would not serve the interests of judicial economy,” he concluded.

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