A July 2021 map of dioxane contamination in the Ann Arbor area's groundwater, showing in pink where readings are above 7.2 parts per billion, the state limit for dioxane in drinking water. The map also shows the boundaries of the Gelman Sciences pollution source property off Wagner Road and the large and newly expanded zone through which the plume is allowed to spread through Ann Arbor toward the Huron River and where groundwater use is prohibited by a court order.State of Michigan
ANN ARBOR, MI — The Michigan Court of Appeals has issued a ruling in an Ann Arbor pollution case, vacating a Washtenaw County judge’s June 2021 cleanup order.
The opinion to reinstate a previous consent judgment and remand the case to trial court is a disappointment and highlights the need for a stronger polluter-pay law in Michigan, Mayor Christopher Taylor said of the Sept. 15 decision in the city’s case against dioxane polluter Gelman Sciences Inc.
“We will continue to review our legal options and do everything to ensure that Ann Arbor continues to have clean, safe drinking water for decades to come,” Taylor said.
Ann Arbor-area leaders call for reinstating strong polluter-pay laws in Michigan
The city has been working with Scio Township, Washtenaw County, the state of Michigan and the Huron River Watershed Council on the litigation against Gelman for several years, seeking to get the former Wagner Road filter manufacturer to do more to address the toxic chemical plume spreading from the site, including accelerating cleanup and monitoring.
Gelman, which is no longer in operation, left the area’s groundwater heavily polluted decades ago with an industrial solvent known as 1,4-dioxane that was used in its manufacturing process for many years and discharged into the environment, posing threats to local water supplies as the plume has gradually spread for miles since it originated.
Water tower marking site of notorious industrial polluter demolished near Ann Arbor
The water tower that once marked Gelman Sciences property is toppled by Iseler Construction at 642 S. Wagner Road in Scio Township on Tuesday, Aug. 23, 2022.Jacob Hamilton | MLive.com
With the parties unable to reach agreement on the best course of action to remediate the plume after years of litigation and negotiations, Washtenaw County Circuit Judge Tim Connors last year ordered Gelman to implement additional cleanup and monitoring activities outlined in a proposed consent judgment that had failed to get support from all parties.
In addition to more pumping and treating of contaminated groundwater and attacking the plume at its source, the plan called for installing more monitoring wells. But Gelman has continued to push back and appealed.
Ahead of a Michigan Court of Appeals hearing in Lansing, City Attorney Atleen Kaur told City Council in June the city’s legal team had filed a motion seeking to enforce Connors’ cleanup orders and ask Gelman to show why it wasn’t implementing previously ordered measures. Kaur did not immediately respond to a request for comment on the latest court ruling.
Testing reveals contamination from Ann Arbor dioxane plume in wells near Huron River
Rebecca Esselman, Huron River Watershed Council executive director, agreed the ruling is very disappointing.
U.S. Rep. Debbie Dingell, D-Ann Arbor, also issued a statement calling for a federal Superfund cleanup overseen by the U.S. Environmental Protection Agency as a way forward now.
“Polluters who do not take responsibility for their toxic waste must be held accountable and our communities must have faith that the judicial system will provide that justice,” she said in response to the ruling. “This ruling overturning the 2021 judicial order that would force Gelman to enact urgent, substantive cleanup measures will put human health and our water at risk.”
For decades, Gelman has attempted to stall and deflect while the plume spreads and threatens water supplies and environmental health, Dingell said.
“It was clear already – and even clearer now – that we must act urgently to designate this site as an EPA Superfund site so that we can finally clean up this site and begin to end this nightmare for families living in this area,” she said.
New monitoring wells to help Ann Arbor track spread of toxic pollution
Dan Bicknell, an environmental remediation professional and former EPA Superfund enforcement officer who is credited with discovering the Gelman plume in the 1980s when he was a University of Michigan graduate student studying public health, reacted to the court’s ruling by reiterating his long-held position that a Superfund cleanup is still the best option to attain a proper remediation of the plume.
The plaintiffs in the case were told that several years ago yet they have wasted several years and lots of taxpayer money on attorney fees on a fool’s errand in state court, he said.
The Court of Appeals ruling was issued by a three-judge panel that included Elizabeth Gleicher, Michael Gadola and Christopher Yates. The court agreed with Gelman that the local intervening parties in the original state case against Gelman were not permitted to participate unless they filed complaints.
“Here, rather than being made to plead and prove their claims, the intervenors were allowed to participate in a hybrid ‘intervening-amicus’ capacity, offering opinions, naysaying the settlement agreement, and making additional remediation demands without filing complaints or facing the normal incidents of litigation, such as defenses raised by Gelman,” the opinion states. “Having intervened as plaintiffs, the intervenors must file their complaints and thereby subject themselves to the incidents of litigation, or face dismissal.”
The appeals court also observed the trial court stated the case was at the “remedial stage” and “decades beyond litigation of whether or not Gelman polluted the water.”
“The trial court’s statement inaccurately suggests that there has been a finding of Gelman’s liability,” the appeals court opinion states. “In 1991, the trial court dismissed the majority of the claims against Gelman, and the state and Gelman settled the remaining claims. The intervenors have yet to assert any claims, and consequently Gelman has yet to be heard on the intervenors’ purported claims.”
Thus, there has been no determination in the case that Gelman is liable, the appeals court ruled.
As for where the case could go next as it heads back to trial court, the appeals court ruled the state and Gelman are free to negotiate a new amended consent judgment as they see fit, which they may present to the trial court. If the parties find it necessary, they can seek the trial court’s involvement.
But unless Gelman or the state seek the trial court’s involvement, the previous consent judgment, which requires less cleanup and monitoring, remains in effect and the trial court should play no role in negotiating a new one, the appeals court ruled, also determining the trial court must require the local parties to file complaints or be dismissed from the case.
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