ANN ARBOR, MI - Gelman Sciences Inc. claims Washtenaw County is being unreasonable in wanting a more complete cleanup of the company's toxic plume of pollution spreading through the Ann Arbor area's groundwater.

The filter manufacturer, which discharged large amounts of the toxic chemical 1,4-dioxane at its property on Wagner Road between the 1960s and 1980s, argues complete removal of the contaminant from local aquifers, as opposed to the current approach of letting it spread and trying to manage the risk of exposure, is not feasible and goes far beyond what is required under Michigan law.

The county, in response, argues the polluter's claims that the county is being unreasonable are offensive.

The two parties are taking issue with each other as Gelman Sciences seeks an appeal of Washtenaw County Circuit Judge Tim Connors' recent orders allowing the county, Ann Arbor, Scio Township and the Huron River Watershed Council to locally intervene in the Gelman plume legal case.

The local parties joined the Michigan Department of Environmental Quality this year as co-plaintiffs in the longstanding case against Gelman Sciences.

The state initially sued the company in 1988, leading to a consent judgment in 1992 that has been amended multiple times, most recently in 2011. Now that there's new information about dioxane and new emergency state standards for dioxane in direct response to the situation in Ann Arbor, the consent judgment is being revisited and the various parties are trying to come up with an agreeable plan of attack for addressing the expanding plume going forward.

If the parties can't agree on terms of a new strategy, the case could go to trial in Connors' courtroom in downtown Ann Arbor. Before the case goes any further, Gelman is trying to get the Michigan Court of Appeals to overrule Connors and eliminate the local parties as co-plaintiffs so it only has to deal with the DEQ, which has stated it's not sure a better cleanup is warranted.

In its April 6 leave to appeal, Gelman Sciences, represented by Farmington Hills attorney Michael Caldwell, points to an April 2016 report by county staff that compares cleanup strategies at other contamination sites in Michigan.

"There are currently no Superfund sites in Michigan where complete cleanup of 1,4-dioxane is taking place or has been identified as the goal," the report stated.

County commissioners asked staff for the information as they explored the possibility of seeking federal Superfund designation for the plume.

"Such a demand suggests that the county does not agree with the requirements imposed by state law -- in which case the appropriate course of action is to petition the Legislature for changes to the state's environmental laws, not intervention in a thirty-year-old enforcement action," Gelman argues in a court filing.

"By being given party status, however, the county is able to maintain this 'cleanup or bust' attitude, thereby holding the parties' negotiations hostage to its unreasonable demands. This prejudices MDEQ and Gelman's ability to reach an agreement for a plan that complies with Michigan law, protects the public, results in timely remediation modifications, and does not impose unreasonable obligations -- precisely what MDEQ and Gelman were on the verge of finalizing when the intervenors belatedly demanded to be parties to this proceeding."

Gelman's appeal goes on to argue having the various local parties at the table with the state and the polluter makes negotiations "unmanageable."

"Practically speaking, reaching a resolution that addresses all of these demands -- if even possible -- would be exceptionally difficult," Gelman argues. "Each party's request utilizes and competes for the limited pool of resources available for the remediation efforts, including pipeline, well and permitting capacity.

"And as parties to this action, each intervenor possesses the unilateral power to destroy an agreed-upon resolution because that intervenor's particular demand was not met to its full and complete satisfaction."

As more parties request to be added to the case, Gelman argues, the risk of derailing the negotiations becomes greater.

"More importantly, the individualized claims, inflammatory rhetoric and inevitable politicking that will come from having so many parties around the negotiating table regarding such a fraught and important issue threatens to derail any hope for a mutually agreeable resolution," Gelman argues.

"Indeed, the surge in the number of parties -- with the related introduction of often conflicting and unreasonable demands -- exponentially increases the likelihood that this matter ends up being resolved by an eight-plus-party trial or evidentiary hearing, rather than by consent judgment."

Robert Davis, a Mount Clemens attorney representing the county and its health department, filed a 29-page response to Gelman's appeal on April 27.

The county argues Gelman must show it would suffer "substantial harm" by awaiting final judgment before appealing.

The county also contends the arguments put forward by Gelman have no merit in fact or law and should not be reason for granting leave to appeal.

"The defendant speculates that leave is necessary because the parties will likely make 'unreasonable' and 'incompatible' demands during discussions which will prejudice the defendant. This is not true," the county argues. "The argument, based on levels of cooperation to date, is offensive to the county. In fact, the trial court stated on record that it didn't see anybody 'hijacking' the process."

As of late April, the parties already had met in conference twice since Connors granted local intervention, and the county maintains it has not made any unreasonable or incompatible demands.

"In fact, just the opposite is true," the county argues. "At the last conference, the parties discussed and agreed to bring experts to the next meeting. The county is accommodating this process and has made financial and other arrangements for experts to appear at the next conference. The goal is to use collective wisdom to protect the environment and the health of the people of Washtenaw County."

The county argues the process is working and arguments to the contrary by Gelman are simply "windless rhetoric."

"The emergency rules are set. The cleanup is defined. The experts will decide how to achieve the results," the county argues, maintaining its involvement in the case as a co-plaintiff will not cause any undue delay.

The DEQ and Gov. Rick Snyder last October issued emergency rules to establish stricter exposure standards for dioxane throughout Michigan in response to the situation in Ann Arbor, lowering the amount of dioxane allowed in residential drinking water from 85 parts per billion to 7.2 ppb, and acknowledging the state's longstanding dioxane exposure criteria was not protective of public health.

The emergency rules also included a new vapor-intrusion screening level of 29 ppb, as toxic vapors rising into homes is considered a potential threat. Dioxane has been detected in shallow groundwater near homes in Ann Arbor.

The county argues Connors put it best when he said incorporating the collective wisdom of the various parties, including local government, is time well spent.

"The defendant argues that leave is allegedly needed because Pandora's Box has been opened and there is going to be other parties seeking to intervene. This argument is not true and not supported by any record," the county argues. "The record shows no additional motions to intervene."

Gelman argues the risk of the case going to trial or evidentiary hearing because the parties can't agree on a new consent judgment is not theoretical.

Gelman argues it is already exemplified by the intervenors' claims for relief and the language contained in their motions.

"For example, the county argued in its motion that a 'cleanup has not been completed' and that cleanup (not containment) 'must be the goal and the objective going forward,' " Gelman's appeal states.

"But the complete removal of all of the contaminant from the aquifers -- as opposed to taking all actions necessary to prevent any unacceptable exposures -- is simply not technically feasible and goes far beyond what is required under Michigan law and at other 1,4-dioxane-contamination sites in Michigan."

The county argues Gelman's pump-and-treat remediation efforts over the years have not produced cleanup results that restore the impacted natural environment to acceptable levels, and the state's new exposure criteria enacted under emergency rules last October set clear and defined objectives.

The county's April 27 filing stated that since being allowed to intervene in the case, the county, the county's health department and County Health Officer Ellen Rabinowitz have participated in two meetings with Gelman and a third meeting was set for May 2. The county's attorney described the first two meetings as "very productive," saying the May 2 meeting had "a potential to sharpen and narrow the issues in dispute."

The county notes the case has been going on for three decades and the matters involved already are well known.

"There are no factual disputes about the source of the 1,4-dioxane contamination," the county argues. "There is no factual dispute that the contamination is impacting Washtenaw County as a public health concern."

The county contends that since the state and the polluter first entered into a consent judgment in 1992 there has been no effective cleanup of the dioxane and the cleanup efforts have failed the community, now resulting in dioxane in shallow groundwater near homes on Ann Arbor's west side, a situation that was cause for the state's emergency action to update exposure standards in October.

The county argues the county health department and health officer have a statutory duty to protect public health that requires they be at the table.

"Numerous plumes of 1,4-dioxane have now migrated in the groundwater throughout Washtenaw County," the county states in its response to Gelman's appeal. "The impacted groundwater plumes stretch north toward M-14, east toward downtown Ann Arbor, and west along Jackson Avenue. The current consent judgment process is not effective in addressing this contamination or effectuating a cleanup that protects the public health."

The county argues the extent of the contamination is not yet fully defined, though it's clear there's a health threat and a cleanup is not complete.

Retracing the history of the legal battles over the Gelman plume, the county argues the goal of the first consent judgment in 1992 was to remove and treat all of the contaminated groundwater and that didn't happen.

The county argues the seconded amended consent judgment under now-retired Judge Donald Shelton in 2005 wholly changed the nature of the cleanup from the promise of removal and treatment to a "containment strategy," establishing a large zone where groundwater use is prohibited and allowing the plume to spread east through Ann Arbor toward the Huron River.

"This violates the law and applicable regulations," the county argues. "In other words, the original goal of removing and cleaning up the contamination was set aside. Under the new consent judgment, the defendant was only charged with 'stopping the spread' of the contamination except in a certain 'prohibition zone.'

"This major concession and redirection of the cleanup objective is significant -- but not supported by law. The change was contrary to the protection of public health," the county argues. "Now, the public health is determined to be at issue and a new cleanup criteria is required and dictated by the emergency rules. Intervention by the county parties is both timely and supported."

Gelman argues that at the time the local intervention motions were filed, the company was on the verge of finalizing a fourth amended consent judgment with the DEQ after months of negotiations over "additional remedial work" to address the state's new dioxane standards.

"Now entry of that document and implementation of the additional environmental response actions deemed protective of public health have been put on hold because the trial court saw fit to add six new parties," Gelman argues.

Dioxane is classified by the U.S. Environmental Protection Agency as likely to be carcinogenic to humans by all routes of exposure. It also can cause kidney and liver damage, and respiratory problems. Short-term exposure to high levels of dioxane in the air can cause eye, nose and throat irritation.

Just a few parts per billion in drinking water, with long-term exposure, poses a 1 in 100,000 cancer risk, according to the EPA.

The EPA announced in February it is taking a fresh look at the Gelman plume this year to determine if it qualifies for a federal Superfund cleanup.

Gelman Sciences was acquired in 1997 by Pall Corp., which was acquired in 2015 by Danaher Corp., a multibillion-dollar corporation that some local officials and residents argue has the financial resources to do a better cleanup.

Monitoring well data shows the underground plume is now more than three miles long and a mile wide and has polluted local lakes, creeks, residential drinking water wells and a city municipal water supply well that has been shut down.

The plume is encroaching into neighborhoods just west of downtown Ann Arbor where groundwater is in some cases only a handful of feet below the surface, raising new concerns about vapor intrusion into homes.

Additionally, if the plume spreads further north and reaches Barton Pond, an impoundment on the Huron River where the city gets its drinking water, it could poison the city's entire municipal water supply. State and local officials say they're monitoring the situation closely and they'll take necessary action to prevent harm to human health it if that day comes.

The city has investigated various options, including potentially upgrading the city's water plant to treat for dioxane if it gets into the water supply. Dioxane is not currently detected in the city's water supply, though it has been detected in private drinking water wells in Scio Township.