The judge orders new cleaning and monitoring protocols for Ann Arbor’s dioxane plume
ANN ARBOR, MI – Washtenaw County Circuit Judge Tim Connors orders a new remediation plan for a toxic chemical cloud that is spreading in the groundwater of the Ann Arbor area.
The judge heard witnesses testifying for hours on Monday, May 3, in the case of the Gelman dioxane plume. He then informed the parties that he would commission the polluter Gelman Sciences to carry out additional cleanup and monitoring activities outlined in a consent decision proposal last year.
In addition to increasing the pumping and treating of contaminated groundwater and attacking the cloud at its source, the plan provides for the installation of additional monitoring wells.
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This includes lowering the exposure limit for dioxane in drinking water from 85 parts per billion to 7.2 ppb in relation to the Gelman cloud – according to regulations enacted by the state five years ago before the start of the current round of trials.
Connors called it a starting point to move the case forward, though it’s a decision that neither party makes entirely happy. Local officials still have concerns about aspects of the plan and want more cleanup and surveillance than ordered, while Gelman complains that it is not getting any desired concessions.
Officials believe that some measures could take a year to implement. Therefore, there is still time to question aspects that they do not support, e.g. B. the introduction of dioxane into First Sister Lake.
Alderman Kathy Griswold, D-2nd Ward, said she hoped some of the plan wouldn’t actually happen.
“It’s a step with the ongoing review,” Connors assured the parties to Monday’s decision.
Connors wants the parties to return to quarterly reviews of the case beginning September 1, and he expects Gelman to appeal Monday’s decision to the Michigan Court of Appeals.
“We all know what we’re doing here,” he told the parties. “This is just creating a record that will receive an appeal review.”
Some local officials were optimistic about the judge’s decision.
“I hope this leads to a cleanup because ultimately we really need this, so I’m hopeful,” said Sue Shink, Washtenaw County’s chairman of the board.
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The local parties that intervened in the state’s longstanding legal battle against polluter Gelman Sciences over four years ago – Ann Arbor, Scio Township, Washtenaw County, and the Huron River Watershed Council – will continue to intervene in this case, Connors said, who intends to carry on the case.
This is not the end, he said.
He told local interveners that they can continue to conduct a federal superfund cleanup by the US Environmental Protection Agency, a year-long persecution that is just beginning.
Michael Caldwell, one of Gelman’s attorneys, said he wanted to make it clear that Gelman disagrees with Connors’ order.
“I know you object,” Connors said, calling on Gelman’s legal team to take action on appeal.
Raymond Ludwiszewski, another Gelman attorney, argued that Connors had no authority to hold the hearing on Monday.
There is a false presumption of a liability finding against Gelman and companies that lack reputation are seeking remedies, Gelman said, arguing that it should only be about the state, not the local interveners.
It’s the judge’s job to resolve disputes between Gelman and the Michigan Department of Environment, the Great Lakes, and the Department of Energy, but there aren’t any, Ludwiszewski said, adding that they have agreed on a proposed consent decision since 2016.
The local interveners pushed for more cleanup and surveillance beyond what the state was seeking and led to the negotiation of an assent decision, which the local elected officials ultimately rejected last year because the entire settlement agreement contained elements that they and the would Public unsupported.
This included the discharge of dioxane-infused water into First Sister Lake from planned pump-and-treat operations and federal penalties for seeking a federal superfund purge.
The proposed settlement also included the interveners’ willingness to refuse their intervention with limited future involvement, noted Ludwiszewski, citing this as one of Gelman’s desired concessions.
He raised concerns about the maintenance of the concessions offered in Gelman’s approval decision, while rejecting the concessions offered by the interveners in separate settlement documents.
“It is clear that the interveners now want to revoke all their concessions and accept all Gelman concessions free of charge,” said Ludwiszewski. “They also want to add a wish list to the agreement with additional requirements.”
It’s unfair and sets a worrying precedent for future settlement negotiations, he said.
The additional monitoring and cleanup in last year’s consent judgment is to be carried out on behalf of Connors, while the local interveners remain in the case and are not penalized for requesting a superfund cleanup.
Connors told the parties that he wanted to hear from them “where it hurts but what you can live with”.
Nathan Dupes, an attorney representing Ann Arbor, said the additional clean-up and monitoring measures interveners are seeking to go beyond what was included in last year’s approval rating are only “gradual, unfriendly” matters.
The local interveners would like changes to the consent decision proposal from last year, including several additional monitoring holes, including some in the West Park area, and a “slightly larger” pump-and-treat remediation with different criteria for ending the cleanup, Dupes said.
They also want a smaller extension of the groundwater use ban zone than suggested last year, he said. In this area, the cloud is allowed to spread over Ann Arbor to the Huron River.
The parties in the case disagree on basic cleanup goals and agree on many specific response activities, Dupes said.
He told the judge they are on trial because Gelman released large amounts of a likely human carcinogen into the environment in filter manufacturing on Wagner Road for decades, and released hundreds of thousands of pounds of the toxic substance between the 1960s and 1980s, and the state issued a state of emergency in 2016 states that the current cleanup criteria do not protect public health.
Dioxane is highly mobile and not readily biodegradable in the environment, and the expanding cloud has migrated in unexpected ways, Dupes said, pleading for more to be done to track and address the releases from Gelman’s property.
“It’s a complicated problem that still requires serious attention and additional activity to deal with,” he said.
The local interveners are not calling for things that are drastically different from what is already on the table, and they are not expecting full restoration of the aquifer to undetected or to meet drinking water standards, he said.
They are also not calling for a “ceiling” for monitoring boreholes in the entire plume area, Dupes said.
There are currently about 140 monitoring wells, an additional 14 were suggested in the draft consent judgment last year, and the local interveners want eight more, he said.
The local interveners also want Gelman to produce a map showing where groundwater dioxane levels are at 1 ppb, 7.2 ppb and 280 ppb, with additional boreholes to monitor the extent and more monitoring to identify the potential migration of the cloud towards Barton Pond, the town’s main source of drinking water. The interveners also want additional studies on dioxane in the Allen Creek drainage system and in the nearby shallow groundwater on the west side of the city.
Connors told local residents and officials that he lives on the cloud and understands their concerns.
In addition to attorneys for all parties, he gave several local officials and residents who have been closely following the issue for years the opportunity to speak during Monday’s hearing.
Scio Township-based Roger Rayle, chairman of the local coalition to combat dioxane, discussed his decades of commitment and expressed concerns about “poison pills” in last year’s consent judgment proposal that he believes should not be implemented.
“We have to make the right decision now and there are parts that are being approved. Why not just do these in order and do the rest in the quarterly follow-up? ” he said.
Connors said that’s exactly what he’s doing.
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