Joerg Teuchert
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ANN ARBOR, MI – With audiences in the Gelman dioxane plume court case coming up in March, polluter Gelman Sciences is fighting back again.
In court documents dated Jan. 7, Michael Caldwell, Gelman’s attorney, objected to the City of Ann Arbor, Washtenaw County, Scio Township and the Huron River Watershed Council remaining as as co-plaintiffs intervening in the litigation of the State against the polluter.
Caldwell pointed to recent failed attempts to negotiate a new cleanup plan with local parties and argued that Gelman should only have to deal with the state of Michigan.
“Gelman continues to oppose stakeholder involvement in negotiations over a remedy that, for over 30 years, had only worked between Gelman and the regulator authorized by law to oversee precisely this type of remediation.” , wrote Caldwell.
Gelman is the former Scio Township filter maker responsible for a large plume of the toxic chemical 1,4-dioxane that has slowly spread through the region’s groundwater for decades, threatening the water supply.
When Judge Tim Connors allowed 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 of negotiations between the polluter and the state over a new consent judgment, Caldwell mentioned.
“By this point, the state and Gelman had already reached consensus on a revised agreement that would have fully incorporated the new statewide cleaning standards that came into effect on October 27, 2016,” Caldwell wrote in a court last week. “Without the unfortunate interventions, Gelman and the state would have issued the new consent judgment in 2017 and the fully protective appeal over the new statewide standards would be well underway.”
Local officials see it differently. Once seated at the table, they spent years negotiating with their lawyers for better cleaning and monitoring of the plume, forcing Gelman to make more concessions. But they ultimately rejected the proposed deal, arguing that it was not enough.
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“Regarding the legal case, we continue to work with lawyers to present our strongest arguments to the judge as to why more action needs to be taken to clean up the site and protect public health,” the commissioner said. of the county, Jason Morgan. , D-Ann Arbor.
Although he believed Connors had erred in allowing local parties to intervene four years ago, Gelman, who fought the case all the way to the Michigan Supreme Court, nonetheless participated in good faith for nearly four years in intervention negotiations, Caldwell told court the last time. the week.
This process produced a comprehensive plan that included corrective actions “well beyond what is 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 out four years of work,” Caldwell wrote in a court file.
Local 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 clean-up, approving a complete repudiation of oversight of the clean-up. ‘State on the site and the prosecution in place of the Federal Superfund. status, ”Caldwell told the court.
“They apparently either believe that a ‘better’ resolution is somehow available through this tribunal or the political process, or that their interests will be better protected by the US Human Rights Agency. environment … only by 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 reach a settlement between the state and Gelman, or the local parties can file complaints so that the merits of their claims can be argued, said. Caldwell.
Which is not an option, but what the court nonetheless ordered, he said, is to hold a hearing to assess the evidence and order a remedy instead of a judgment by negotiated consent.
“This constitutes a palpable error for which a reconsideration is necessary,” Caldwell argued, asking the judge to reconsider holding hearings scheduled for March 8 and 9.
Ann Arbor City Council held a special closed-door meeting with its legal counsel on Wednesday, Jan. 13 to discuss the remaining issues in dispute.
City attorney Stephen Postema did not respond to a request for comment.
In an interview Thursday, Mayor Christopher Taylor said the polluter’s strategy was to keep trying to delay and this is just another example of that.
The city will continue to fight for better cleaning and more oversight, Taylor said.
“Preserving Ann Arbor’s drinking water has always been and continues to be our highest priority,” he said. “And we will 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 supply system.” in municipal water.
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Connors cannot change the consent judgment governing the plume without the consent of the parties, including Gelman, argued Caldwell, arguing that any award of redress to the local parties and against Gelman in the form of a new remedy would violate the law. de Gelman’s due process.
“Gelman is entitled to the opportunity to be heard on his meritorious defenses to stakeholder claims, which have not even been filed with the court,” he wrote.
Ann Arbor, Washtenaw County, Scio Township, and Ann Arbor Township are separately investigating the possibility of a federal Superfund clean-up through the EPA.
Local authorities recently sent letters to Gov. Gretchen Whitmer, asking for his approval, but have yet to receive a response.
If the EPA puts Gelman’s plume on the national priority list for a Superfund cleanup, the court will no longer have jurisdiction over him, Caldwell told Connors. In light of this, further efforts to produce a court-revised consent judgment would be futile, he said.
“Furthermore, proceeding to a costly and lengthy reparation hearing would be a waste of the resources of the parties and of this tribunal, and would not serve the interests of the judicial economy,” he concluded.
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