Homeowners lose chemical contamination appeal

By ERIC FREEDMAN

Capital News Service

LANSING – Homeowners whose property was contaminated by materials from a now-defunct chemical plant in Gratiot County have lost their lawsuit against contractors and trucking companies that removed toxic sediments from the adjacent Pine River.

A unanimous three-judge Court of Appeals panel refused to reinstate the suit, which seeks damages from 18 companies.

The case is a legacy of extensive pollution at a 54-acre plant site owned by now-bankrupt Velsicol Chemical Corp. and of the Pine River bordering the facility. From 1936 until 1978, the factory, then known as the Michigan Chemical Corp., produced chemical compounds and products, including the flame retardant PBBs – polybrominated biphenyls – and the now-banned pesticide DDT.

The river begins in Mecosta County and runs through Montcalm, Isabella and Gratiot counties until it reaches the Chippewa River near Midland.

The homeowners claim contractors negligently decontaminated the site between 2000 and 2006 and truckers negligently spilled contaminated material onto public streets near their homes in the small city of St. Louis, about 50 miles north of Lansing. The six homes are one block from the site.

The contractors separated toxic sediments dredged from the river and loaded them onto trucks for disposal at landfills, according to the decision.

In July 2008, the Department of Environmental Quality notified the homeowners that their property was contaminated. In January 2009 they learned of its connection with the Velsicol site.

Parts of their properties were cleaned last fall. Later tests found additional contamination that will be cleaned next year, according to remedial project manager Thomas Alcamo of the U.S. Environmental Agency (EPA) Chicago office.

So far, EPA testing has found contamination at 76 properties near the site, most of it believed to be windborne from the period when the plant was operating, and “we’re still sampling,” Alcamo said. On some roadside properties contaminated fill up to 15 inches deep has been found.

He said five more properties will be cleaned this year, starting in November.

The total cost of the cleanup and related work, such as replacement of the St. Louis municipal water system, and future operations is estimated at $350 million Alcamo said. “It’s pretty pricey.”

About $15 million comes from Velsicol’s bankruptcy settlement. The rest comes from the EPA and state funds.

The suit, which didn’t involve the EPA, accused the contractors of carelessly operating a decontamination pad on the site, the Court of Appeals said. It accused the truckers of “negligently hauled the sediments and failed to prevent chemical waste from spilling onto the streets near the property owners’ properties. As a result, the toxic sediments were washed onto the property owners’ properties.”

The homeowners’ lawyer, Donnelly Hadden of Ann Arbor, said, “There are plenty of witnesses who saw the stuff dropping off the trucks.

“You could follow the dust from the site all the way to the landfill,” said Hadden, whose clients seek damages, including reduced property values, emotional distress and mental anguish.

A lawyer for two contractors, Jana Berger of Ferndale, said the sediments had been decontaminated before being loaded onto trucks.

“We absolutely denied” any negligence, Berger said.

The appeals court upheld a Gratiot County judge’s order throwing out the case.

In its decision, the appeals court said claims against the truckers are barred by Michigan’s no-fault vehicle insurance law and said there was no evidence that any wrongdoing by the truckers was deliberate.

“The property owners failed to provide any facts that would indicate that the truckers intended to cause damage to their property,” it said.

The court also ruled that the homeowners waited too long to sue the contractors. They filed it in January 2010, more than three years after the contractors’ alleged negligence ended in 2006.

The homeowners unsuccessfully argued that a six-year statute of limitations applied.

Hadden said the homeowners will ask the state Supreme Court to review the case because the appeals court disregarded a federal law that would start the three-year clock running when they discovered the contamination in 2009, not in 2006 when the work ended.

“It may even go to the U.S. Supreme Court because they ignored federal law,” he said. 

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