Judge rules MDEQ misused court system

Cadillac News File Photo This Cadillac News file photo shows the entrance to Rexair. A recent court decision dismissed the Michigan Department of Environmental QualityÕs claim that groundwater contamination escaped the companyÕs well treatment system.

LANSING - An Ingham County judge ruled the Michigan Department of Environmental Quality misused the court system in an attempt to “impose its unilateral will” on a Cadillac manufacturer.

Judge Beverley Nettles-Nickerson said the DEQ relentlessly attempted to circumvent a Consent Judgment voluntarily reached with Rexair over groundwater contamination in 1991. In reaching the Consent Judgment, both parties agreed that disputes over “additional work,” or cleanup, would be decided by the court.

She also ordered the MDEQ to pay court and attorney costs for Rexair, which the company estimates at more than $2 million.

“MDEQ has repeatedly attempted to delay resolution of this dispute and has disregarded the Court's rulings,” Nettles-Nickerson writes in her findings of fact ruling. “Moreover, the Court concludes that MDEQ invoked the dispute resolution process for an improper purpose: namely, to impose its unilateral will upon Rexair rather than to have this Court decide whether Rexair should perform additional work pursuant to the Consent JudgmentŠ”

The DEQ alleged trichloroethylene, an industrial degreaser, escaped a treatment system installed by Rexair to cleanup contamination, subsequently threatening Cadillac's municipal well field and residential wells to the north. The wells, according to the DEQ, were not properly sited - wide enough, deep enough or far enough north - to capture its entire plume.

Hence, it sought “additional work” from Rexair after TCE was discovered north of Rexair's wells in 1998. After investigating, Rexair responded, saying the TCE came from other factories in the Cadillac Industrial Park, which is the home of two federal Superfund sites.

The DEQ filed its Amended Motion for Dispute Resolution in June 2004, seeking to require Rexair to perform additional cleanup.

“We disagree with the judge's ruling - factually and legally - and are discussing appellate options with DEQ,” wrote Attorney General spokesman Rusty Hills in an e-mail to the Cadillac News. The attorney general's office has handled the case.

Andrew Hogarth, Division Chief for the DEQ's Remediation and Redevelopment Division said the contamination “will continue to do whatever it's doing until some action is taken,” meaning no definite cleanup efforts are in place. Contaminants have been found in Superfund wells.

Likewise, Hogarth said the DEQ does not agree with the judge's ruling.

“We're simply trying to enforce the law,” Hogarth said.

The agency has budgeted funds to determine the direction TCE is traveling, how bad it is and the scope of the plume, said Jim Skipper from the Cadillac District Office.

“Our experts opined (believed) the system was successful and the MDEQ position was incorrect,” said Jim Williams, Rexair's general counsel and vice president. “What the MDEQ did at that point, they essentially waved a big stick at Rexair.”

Rexair asked the DEQ prove its allegations were correct before the company spent additional resources on further remediation efforts, Williams said. The DEQ's strategy, Williams said, was to delay an evidentiary hearing and use the court to force additional cleanup. Williams said Rexair spent eight months putting together evidence as the matter appeared to be headed for a hearing.

Prior to a hearing, however, the DEQ filed a motion to withdraw its Amended Motion.

In the court ruling, Nettles-Nickerson cited DEQ correspondence written while attempting to withdraw: “Forcing MDEQ to commit limited resources to an evidentiary hearing at this time runs counter to the interests of efficiency and judicial economyŠ”

In ruling on the matter, Nettles-Nickerson dismissed the MDEQ's Amended Motion for Dispute Resolution with prejudice, meaning the agency is barred from bringing action on the same claim.

The dismissal and award of attorneys' fees, the judge wrote, “were wholly justified by MDEQ's delays and persistent, calculated abuse of the dispute resolution process and misconduct before this Court.”

“Only a dismissal with prejudice and an award of fees and costs could end MDEQ's continued misuse of the current dispute resolution process and compensate Rexair for the cost of resisting MDEQ's bad-faith strategies,” Nettle-Nickerson wrote.

Throughout the 22-page document, Nettles-Nickerson said the MDEQ missed court deadlines, withdrew motions and attempted to avoid an evidentiary hearing.

“Rexair objected to the MDEQ taking it upon itself to resolve the case and the court agreed,” Williams said.

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