Michigan Court of Appeals vacates cleanup order in Ann Arbor pollution case

ANN ARBOR, MI — The Michigan Court docket of Appeals has issued a ruling in an Ann Arbor air pollution case, vacating a Washtenaw County decide’s June 2021 cleanup order.

The opinion to reinstate a earlier consent judgment and remand the case to trial courtroom is a disappointment and highlights the necessity for a stronger polluter-pay legislation in Michigan, Mayor Christopher Taylor mentioned of the Sept. 15 resolution within the metropolis’s case towards dioxane polluter Gelman Sciences Inc.

“We are going to proceed to evaluation our authorized choices and do all the things to make sure that Ann Arbor continues to have clear, protected ingesting water for many years to come back,” Taylor mentioned.

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Town has been working with Scio Township, Washtenaw County, the state of Michigan and the Huron River Watershed Council on the litigation towards Gelman for a number of years, searching for to get the previous Wagner Highway filter producer to do extra to handle the poisonous chemical plume spreading from the location, together with accelerating cleanup and monitoring.

Gelman, which is now not in operation, left the realm’s groundwater closely polluted a long time in the past with an industrial solvent often known as 1,4-dioxane that was utilized in its manufacturing course of for a few years and discharged into the surroundings, posing threats to native water provides because the plume has step by step unfold for miles because it originated.

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With the events unable to achieve settlement on the perfect plan of action to remediate the plume after years of litigation and negotiations, Washtenaw County Circuit Choose Tim Connors final yr ordered Gelman to implement further cleanup and monitoring actions outlined in a proposed consent judgment that had didn’t get assist from all events.

Along with extra pumping and treating of contaminated groundwater and attacking the plume at its supply, the plan referred to as for putting in extra monitoring wells. However Gelman has continued to push again and appealed.

Forward of a Michigan Court docket of Appeals listening to in Lansing, Metropolis Lawyer Atleen Kaur informed Metropolis Council in June town’s authorized crew had filed a movement searching for to implement Connors’ cleanup orders and ask Gelman to point out why it wasn’t implementing beforehand ordered measures. Kaur didn’t instantly reply to a request for touch upon the newest courtroom ruling.

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Rebecca Esselman, Huron River Watershed Council govt director, agreed the ruling could be very disappointing.

U.S. Rep. Debbie Dingell, D-Ann Arbor, additionally issued an announcement calling for a federal Superfund cleanup overseen by the U.S. Environmental Safety Company as a approach ahead now.

“Polluters who don’t take duty for his or her poisonous waste have to be held accountable and our communities should have religion that the judicial system will present that justice,” she mentioned in response to the ruling. “This ruling overturning the 2021 judicial order that might power Gelman to enact pressing, substantive cleanup measures will put human well being and our water in danger.”

For many years, Gelman has tried to stall and deflect whereas the plume spreads and threatens water provides and environmental well being, Dingell mentioned.

“It was clear already – and even clearer now – that we should act urgently to designate this website as an EPA Superfund website in order that we are able to lastly clear up this website and start to finish this nightmare for households residing on this space,” she mentioned.

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Dan Bicknell, an environmental remediation skilled and former EPA Superfund enforcement officer who’s credited with discovering the Gelman plume within the Nineteen Eighties when he was a College of Michigan graduate scholar finding out public well being, reacted to the courtroom’s ruling by reiterating his long-held place {that a} Superfund cleanup remains to be the most suitable choice to achieve a correct remediation of the plume.

The plaintiffs within the case have been informed that a number of years in the past but they’ve wasted a number of years and many taxpayer cash on legal professional charges on a idiot’s errand in state courtroom, he mentioned.

The Court docket of Appeals ruling was issued by a three-judge panel that included Elizabeth Gleicher, Michael Gadola and Christopher Yates. The courtroom agreed with Gelman that the native intervening events within the authentic state case towards Gelman weren’t permitted to take part except they filed complaints.

“Right here, relatively than being made to plead and show their claims, the intervenors have been allowed to take part in a hybrid ‘intervening-amicus’ capability, providing opinions, naysaying the settlement settlement, and making further remediation calls for with out submitting complaints or going through the traditional incidents of litigation, similar to defenses raised by Gelman,” the opinion states. “Having intervened as plaintiffs, the intervenors should file their complaints and thereby topic themselves to the incidents of litigation, or face dismissal.”

The appeals courtroom additionally noticed the trial courtroom acknowledged the case was on the “remedial stage” and “a long time past litigation of whether or not or not Gelman polluted the water.”

“The trial courtroom’s assertion inaccurately means that there was a discovering of Gelman’s legal responsibility,” the appeals courtroom opinion states. “In 1991, the trial courtroom dismissed the vast majority of the claims towards Gelman, and the state and Gelman settled the remaining claims. The intervenors have but to say any claims, and consequently Gelman has but to be heard on the intervenors’ purported claims.”

Thus, there was no dedication within the case that Gelman is liable, the appeals courtroom dominated.

As for the place the case might go subsequent because it heads again to trial courtroom, the appeals courtroom dominated the state and Gelman are free to barter a brand new amended consent judgment as they see match, which they might current to the trial courtroom. If the events discover it vital, they’ll search the trial courtroom’s involvement.

However except Gelman or the state search the trial courtroom’s involvement, the earlier consent judgment, which requires much less cleanup and monitoring, stays in impact and the trial courtroom ought to play no function in negotiating a brand new one, the appeals courtroom dominated, additionally figuring out the trial courtroom should require the native events to file complaints or be dismissed from the case.

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