City considers new legal options in response to recent toxic groundwater discovery

Tuesday, October 25, 2016 - 6:35pm

In response to a new discovery last week of the toxic chemical 1,4-dioxane in shallow groundwater on Ann Arbor’s west side, city officials are exploring the possibility of new legal actions against the original polluter that could potentially bypass state environmental regulators.

Improper wastewater disposal by the Ann Arbor-based company Gelman Sciences — which has since been purchased by Pall Corporation — from 1966 to 1986 has created a large plume of the carcinogenic dioxane toxin underground in the city of Ann Arbor, as well as Scio and Ann Arbor Townships.

The gradually expanding plume, first discovered in 1985, has contaminated groundwater, forced the closure of more than 100 private residential wells and is expected to reach the Huron River in the coming decades and potentially contaminate Ann Arbor’s water source at Barton Pond, according to several projections.

In 2006, a court ruling denied the city of Ann Arbor the right to be a party in a state of Michigan lawsuit and 1992 consent judgement against Pall Corporation, which mandated the corporation undertake the monitoring and remediation of the contamination. Because Ann Arbor was denied involvement in the lawsuit, the Michigan Department of Environmental Quality, not the city, is primarily responsible for overseeing the polluter’s remediation efforts.

However, the discovery last week of 1,4-dioxane in the shallow groundwater at Waterworks Park by the MDEQ has sparked new concerns of human exposure, and some city officials are now entertaining the possibility of a new legal action against Pall Corporation that would make the city of Ann Arbor a party.

The contaminants in Waterworks Park were in concentrations of 2 to 3 parts per billion. 1,4-dioxane carries carcinogenic risk at 3.5 parts per billion, according to Environmental Protection Agency guidelines.

City Councilmember Chip Smith (D–Ward 5) — whose constituency includes Waterworks Park — said he hopes new legal action, either to make the city a party to the state’s lawsuit or a new suit altogether, could allow it to bypass the MDEQ and possibly push for a full cleanup. He added that he considered the MDEQ unreliable in managing the contamination.

Smith confirmed this option was discussed, among several other legal options — including a petition to the EPA for superfund designation — during a closed-door special session of City Council Monday night, though he declined to offer more specific details.

“I believe that we need to be somehow as a party in some of the judicial actions,” Smith said. “(Washtenaw County Circuit Court Judge Donald) Shelton said 10 years ago … this is between the DEQ and Gelman. I believe that is a flawed way of thinking since it’s the people of Ann Arbor who are most directly impacted by this and the DEQ clearly has not represented the citizens here adequately.”

City Councilmember Sabra Briere (D–Ward 1), who serves on the City Environmental Commission, was also open to the possibility of a new legal action against Pall. Briere told the Daily before Monday night’s special session that the new discovery of contaminated shallow groundwater may grant the city grounds to pursue this option.

“Until 1,4-dioxane was found in shallow groundwater, the city had no evidence of immediate risk to the health of the community,” Briere said. “Now, with the discovery of 1,4-dioxane, that may change.”

When asked about specific legal strategies the city could take and what was discussed during Monday night’s special session, Chief Assistant City Attorney Abigail Elias declined to comment but reiterated that the city is considering all available options.

Several other city council members also declined to discuss the proceedings of Monday night’s special session when reached for comment.

Meanwhile, other jurisdictions in the county — including Ann Arbor Township, Scio Township and the County Board of Commissioners — have sought to bypass the MDEQ altogether by pursuing a petition to the EPA for superfund status, which would allow federal intervention to clean the contamination.

Ann Arbor Township Supervisor Michael Moran confirmed Monday that his board of trustees still intends to pursue an EPA superfund petition in conjunction with Scio Township, even if the city of Ann Arbor does not follow. Moran also said his township has not discussed the option of seeking party in a new legal action against Pall, as the city of Ann Arbor is.

Though they've expressed frustration with the MDEQ’s lack of success in containing the plume, many Ann Arbor officials have expressed concern that the EPA wouldn’t be able to handle the cleanup any better than the MDEQ and that a premature petition for a superfund could hurt existing remediation efforts.

Briere said the EPA’s past handling of contamination similar to Ann Arbor’s case haven’t convinced her the federal government would do better than state regulators.

“I’ve read all the results of other superfund site cleanups of 1,4-dioxane within the state, and all those superfund sites haven’t resulted in cleaning of the source water. They’ve only engaged in the remediation that we’re already engaged in: testing wells, switching people to municipal water or well water,” Briere said.