Polluter Gelman Sciences and interveners from Ann Arbor, Washtenaw County, Scio Township and the Huron River Watershed Council will appear before Judge Tim Connors from May 3 through May 5 to weigh in on potential changes to the cleanup plan for Ann Arbor’s decades-old dioxane plume.
The Gelman plume is an accumulation of pollution, specifically the chemical 1,4-dioxane, that has existed in Ann Arbor groundwater for nearly four decades. Negotiations for cleaning up the plume have been ongoing for over four years — the relevant lawsuit against Gelman Sciences for this upcoming May hearing was filed in 2016.
After hearing oral arguments from Gelman and the intervening parties Monday morning, Connors denied Gelman’s motion to cancel upcoming hearings centered around the potential new cleanup protocol. As a result, all parties will appear before Connors in early May to present their ideas on modifying the existing consent judgment presiding over cleanup efforts. A consent judgment is an agreement between two parties where the judge supervises to ensure that the agreement is enforced.
“We need to move forward,” Connors said. “We need to have some decision made, and it’s my responsibility to make that decision.”
Michael Caldwell, Gelman’s attorney, argued Monday that holding the remedy hearings would violate Gelman’s right to due process because modifications to the current consent judgment should not be made without Gelman’s consent. Nathan Dupes, attorney for Ann Arbor, countered that Caldwell’s argument is “premature” given that Monday’s hearing is a scheduling order for all parties to present arguments.
Connors said he anticipates Gelman will appeal his decision to move forward with the hearing, but he thinks this case has gone on for too long. Though he is the third judge to preside over the case since it was first filed in 1988, Connors said he doesn’t think he will be the last judge either.
Currently, the city is following the third consent judgment, which includes a pump-and-treat cleanup plan that opponents have argued has not been enough to adequately clean out the dioxane. In August 2020, a fourth consent judgment was proposed. Changes to the third consent judgment included lowering the cleanup standard from 85 parts-per-billion to 7.2 ppb, thereby reducing qualifications for cleanup; expansion of the Prohibition Zone boundary to account for the lower cleanup standard; and increased monitoring of dioxane spread using well installments.
The fourth consent judgment was ultimately rejected by the Ann Arbor City Council in October 2020, citing an insufficient plan to effectively clean the dioxane and hold Gelman accountable.
Monday’s hearing follows a community information session last Thursday during which officials from the Environmental Protection Agency and the Michigan Department of Environment, Great Lakes, and Energy spoke on the city’s efforts to pursue litigation in court while concurrently requesting EPA Superfund intervention. This intervention means the federal government would take charge in the dioxane cleanup.
Officials at Thursday’s meeting estimated that it could take ten or more years for the Gelman site to even qualify as a Superfund site.
In order to begin federal Superfund cleanup, officials say the state of Michigan must request the Gelman site be placed on the National Priorities List. Local Ann Arbor and Washtenaw County officials sent a letter to Gov. Gretchen Whitmer in December 2020 requesting support for placement on the NPL. Currently, officials are awaiting a response from Whitmer while simultaneously pursuing court proceedings to amend consent judgment cleanup protocols.
Cheryl Newton, EPA acting administrator for Region 5, spoke at Thursday’s event and said the agency is working to advance protections in Michigan.
“I want to make sure everybody is hearing loud and clear that our goal is to then take advantage and optimize the uniqueness of this circumstance,” Newton said. “And that includes supporting Michigan’s efforts to get more protections in place under their state authority while it proceeds to review under the NPL process is occurring.”
Residents and elected officials have previously raised questions about whether the court’s jurisdiction over the cleanup protocol would end if EPA takes the lead in cleanup following the possible Superfund intervention. The EPA released a Gelman Science FAQ, saying that both paths of cleanup can proceed at the same time.
“Even if EPA pursues listing the site on the NPL, EPA will not require that the state court litigation end or the terms of a consent judgment be changed,” the FAQ reads. “It is in the interest of all parties and stakeholders going forward that Michigan and Gelman Sciences, Inc. continue to work together to monitor and control the site releases consistent with Michigan’s enforcement requirements.”
At Monday’s hearing, Bill Stapleton, who represents Scio Township in the litigation, confirmed that EPA Superfund intervention has “no impact whatsoever on the proceedings in this court.”
Daily News Editor Kristina Zheng can be reached at firstname.lastname@example.org.
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