ANN ARBOR, MI - The polluter responsible for a large plume of the toxic chemical 1,4-dioxane in the Ann Arbor area's groundwater is now appealing to the Michigan Supreme Court, hoping the state's highest court will override a local judge's decision.

Gelman Sciences, a filter manufacturer that once operated on Wagner Road on the border between Ann Arbor and Scio Township and left the area heavily polluted, is once again trying to get local parties removed from the ongoing Gelman plume legal case so the company only has to legally negotiate with the state attorney general's office and the Michigan Department of Environmental Quality.

The company is against allowing Ann Arbor, Scio Township, Washtenaw County and the Huron River Watershed Council to have seats at the negotiating table as attempts are made to come up with a new plan of attack for addressing the plume. Confidential legal negotiations between the various parties are underway in attempt to revise a Washtenaw County Circuit Court consent judgment that essentially governs how the plume is to be managed.

Local governments and the Watershed Council this past year received the OK from Washtenaw County Circuit Judge Tim Connors to intervene as co-plaintiffs in the longstanding litigation between the state and the polluter, as it's a matter that affects the local community and local parties want a chance to fight in court for a better cleanup.

Gelman, which has complained about the county's "cleanup or bust" attitude, tried in April to get Connors' decision overturned, but the Michigan Court of Appeals in July rejected the request, and now Gelman is turning to the state Supreme Court and asking the same.

Gelman's attorneys, Gary August and Michael Caldwell, filed an application for leave to appeal with the Michigan Supreme Court on Aug. 25, requesting expedited review of the matter.

"Gelman is seeking interlocutory appellate review of the trial court's erroneous decision to allow four new parties to intervene in this environmental enforcement action, an action over which the Michigan Legislature vested primary responsibility in the state of Michigan -- the original and exclusive plaintiff in this case for the past three decades," Gelman's court filing states. "Interlocutory review is necessary because this unprecedented decision significantly and negatively affects the public's interest in a prompt and effective environmental cleanup at this site, and it threatens to become precedent for other contamination sites in the state, if not reversed."

In crafting Part 201 of the state's Natural Resources and Environmental Protection Act, Gelman argues, the Michigan Legislature determined the public interest was best protected by placing responsibility for enforcing Michigan's environmental laws in the hands of the DEQ, which said last year it wasn't sure a better cleanup of the Gelman dioxane plume was warranted.

Gelman argues the DEQ, under state law, is intended to be the "gatekeeper" through which demands from the public and local governments are filtered so a coordinated and efficient cleanup plan can be developed.

The local intervenors in the Gelman plume legal case have cited a provision that permits a third party to intervene in a state-initiated enforcement action, but what they ignore, Gelman argues, is that intervention is only permitted if the DEQ is not adequately representing their interests. In other words, Gelman argues, the Legislature intended the DEQ to be the exclusive plaintiff in environmental enforcement actions so long as the DEQ was diligently pursuing prosecution of the case and adequately representing the interests of the public, which the DEQ argues it has been.

Allowing local parties to intervene, Gelman argues, already has negatively impacted the public's interest in the prompt application of new cleanup standards by delaying implementation of and potentially unraveling a remedy the DEQ was prepared to implement.

"Before the motions to intervene were filed, Gelman and MDEQ had been working for over a year on identifying the appropriate additional remedial work necessary to ensure that the more restrictive cleanup standards that the state recently adopted were met," Gelman stated in its filing, referring to the fact that the DEQ and Gov. Rick Snyder last October took emergency action to lower the allowable level of dioxane in drinking water from 85 parts per billion to 7.2 ppb. "MDEQ is prepared to enter into an amended consent judgment incorporating those changes today, but cannot do so because of the trial court's incorrect decision allowing the intervention of additional parties."

Simply incorporating the new 7.2 ppb number in a revised consent judgment, however, doesn't necessarily mean additional cleanup. The dioxane plume still could be allowed to spread and contaminate more drinking water wells as long as homes and businesses with levels above 7.2 ppb are then connected to municipal water, and the DEQ's position is that Gelman should pay for the cost of that.

Gelman's filing continues, "As a direct result of the trial court's decision, the intervenors are now guaranteed a seat at the negotiating table and at the counsel table, with the ability to block the MDEQ-approved resolution simply because their individualized demands may not be met to their full satisfaction. In other words, the trial court's rulings on the requests to intervene are preventing the consent judgment modifications from being finalized and the agreed-upon additional environmental response actions from being implemented."

In court filings earlier this year when the matter was before the Court of Appeals, attorneys for the local interveners argued against Gelman's attempt to have them removed from the case.

Bill Stapleton, an attorney with the Hooper Hathaway law firm in Ann Arbor, submitted a 21-page objection to Gelman's appeal on April 27 on behalf of Scio Township, calling the appeal frivolous and accusing the polluter of continuing to employ "tactics of delay and obfuscation which it has utilized for nearly 30 years to avoid cleaning up the contaminated groundwater."

"Gelman's tactics have directly resulted in the continued migration of a toxic plume which is now more than three miles long," he wrote.

"The plume has contaminated large sections of Scio Township and Ann Arbor and continues to migrate toward residential wells in the township. For the first time in nearly 30 years, meaningful discussions are occurring between Gelman and the impacted communities as a result of the trial court's ruling. This court should reject Gelman's attempt to further delay this process and summarily deny the application for leave to appeal."

City Attorney Stephen Postema and Tom Bruetsch, an attorney from the Bodman PLC law firm hired by the city, also submitted arguments noting plumes of groundwater laden with dioxane stretch for miles underneath Ann Arbor and the surrounding area.

If the plumes continue to expand, they argued, high concentrations of dioxane are likely to contaminate shallow groundwater in residential areas, increasing the risks to homeowners, construction workers and others, and they have the potential to threaten the primary source of the region's drinking water and more residential wells.

Ann Arbor gets its municipal drinking water from Barton Pond, an impoundment on the Huron River, and some fear the plume could contaminate the pond someday.

If the local intervention in the ongoing litigation is permitted to stand, Gelman argues, it will set a legal precedent that will open the door to third-party challenges of every remedy negotiated or selected by the DEQ at pollution sites throughout the state, so long as each challenge is couched as a request for permissive intervention.

"Contrary to the Court of Appeals' conclusion that the need for immediate appellate review had not been shown, interlocutory appeal is necessary to correct the trial court's erroneous decision before it is too late to afford an opportunity for practical and meaningful review of the underlying decision," the company's filing states.

"Gelman respectfully asks this court to return control of this enforcement action back to MDEQ, as the Legislature's designated gatekeeper and filter of the competing demands of third parties."

Even if local parties are removed from the negotiating table, Gelman argues there still would be a public input process allowing public comments on revisions to the consent judgment. And if there are any objections to what's proposed, Gelman argues, there could be further modifications based on the public comments.

Local officials and the DEQ participated in a town hall meeting on the Gelman dioxane plume earlier this week. Many residents attended the meeting at the downtown Ann Arbor library and expressed concerns that not enough is being done to address the plume.

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.

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.

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.