A Dec. 21 dispute resolution hearing has been set at 1:30 p.m. in the courtroom of Judge Donald Shelton of the Washtenaw County Circuit Court. For background on the dioxane contamination and cleanup, see Chronicle coverage: “Residents Frustrated by Dioxane Decision.” Additional information is also available on the websites for Scio Residents for Safe Water and the county’s Coalition for Action on Remediation of Dioxane (CARD).

Matt Naud, the city of Ann Arbor's environmental coordinator, points to his home on a 3D map of the Pall-Gelman 1,4 dioxane plume. The map was constructed by Roger Rayle, a leader of Scio Residents for Safe Water, who brought it to the March 30 public meeting about a new consent judgment related to the plume. (Photos by the writer.)

Mitch Adelman, a supervisor with the Michigan Dept. of Environmental Quality’s remediation division, began the March 30 meeting by acknowledging the crowd’s reaction to the new agreement, which was issued earlier in the month without opportunity for public input. “I don’t expect anything I say or do tonight to alleviate your anger or frustration,” he said.

But Adelman noted that if a company like Pall – which owns the former Gelman Sciences site – proposes a remediation plan that complies with state law, “we’re obligated to accept it.”

For nearly three hours, Adelman and Sybil Kolon, MDEQ’s project manager for the Pall site, gave an update and answered questions about the new consent judgment, the history of the cleanup, and what residents might expect in the coming years. They were challenged throughout the evening by people who’ve been following this situation closely – most notably by Roger Rayle, a leader of Scio Residents for Safe Water and member of the county’s Coalition for Action on Remediation of Dioxane (CARD). Rayle has been tracking the dioxane plume for many years, and presented his own graphical renderings of data to the group.

The meeting was attended by several elected officials: Ann Arbor city councilmembers Stephen Rapundalo (Ward 2) and Mike Anglin (Ward 5); Ann Arbor Township supervisor Mike Moran; county commissioner Yousef Rabhi (District 11); and Sarah Curmi, chief of staff for state Sen. Rebekah Warren, whose district covers a large portion of Washtenaw County, including Ann Arbor and Scio Township, where the plume is concentrated.

1,4 Dioxane Plume: 40+ Years

In the 1960s, Gelman Sciences – a firm founded by Charles Gelman that manufactured medical filters and other microfiltration products – began pumping industrial wastewater into holding lagoons behind its factory at 600 Wagner Road in Scio Township. Some of those wastewater releases were permitted by the state. Contaminated groundwater leeched into underground aquifers, and by 1985, tests showed some local residential wells were contaminated with 1,4-dioxane, a substance that’s considered a carcinogen.

In 1988, the state filed a lawsuit against the company to force a cleanup. A consent judgment in the case was issued in 1992 by the Washtenaw County Circuit Court, setting out terms for handling the cleanup. The consent judgment has previously been amended twice – in 1996 and 1999. In addition, the court has issued several other cleanup-related orders, including a 2005 order prohibiting groundwater use in certain areas affected by the dioxane plume. The city of Ann Arbor filed a separate lawsuit in 2004, which was settled.

Building 1 at the Pall Corp. facility in Scio Township. No manufacturing is done now at the former Gelman Sciences plant, but a water treatment facility is located on the site to remediate 1,4 dioxane groundwater contamination.

Meanwhile, in 1997 Gelman Sciences was sold to Pall Corp., a conglomerate headquartered in East Hills, N.Y. – the local operation became part of a subsidiary, Pall Life Sciences. In 2007, Pall closed the manufacturing plant on Wagner Road, where the contamination originated. However, a groundwater treatment facility continues to operate there, as part of the court-ordered cleanup effort that’s directed by the state Dept. of Environmental Quality.

In late 2008, Pall asked to revise terms of the consent judgment. A proposal was brought forward by the company in 2009 – in May of that year, the state held a public meeting to discuss the proposal. That was the last time the state has held a public meeting on the topic, until the March 30, 2011 meeting at Abbot Elementary.

The MDEQ rejected Pall’s proposal in June of 2009. But later that year, Washtenaw County Circuit Court judge Donald Shelton ordered the two parties to work together and present a proposal for a third amendment to the consent judgment.

There was no opportunity for public input during the period when Pall, MDEQ and the court were discussing possible changes to the consent judgment, and those discussions were not held in public. Roger Rayle, a Scio Township resident and leader of Scio Residents for Safe Water, has been speaking out against this process for months. Rayle, who is also a member of the county’s Coalition for Action on Remediation of Dioxane (CARD), alerted county commissioners about the situation at their Feb. 3, 2011 working session. At the time, he told commissioners, “If it doesn’t involve your district now, it will.”

In early March of 2011, Shelton ordered a change in the terms of the consent judgment, including some aspects that had previously been rejected by the state. [.pdf file of March 2011 amendment to the Pall-Gelman consent judgment. Additional related documents are available on the CARD website. The MDEQ also maintains a website specifically for information related to the Pall-Gelman site.]

Pall Consent Judgment

Much of the March 30, 2011 meeting was spent providing background on cleanup efforts and describing elements of the amended consent judgment.

Mitch Adelman of the Michigan Dept. of Environmental Quality’s remediation division told the crowd that the basis for making amendments to the consent judgment stems from Part 201, Section 2a of the state’s Natural Resources & Environmental Protection Act (NREPA). The relevant part of Section 2a states:

(3) Notwithstanding subsection (1), upon request of a person implementing response activity, the department shall approve changes in a plan for response activity to be consistent with sections 20118 and 20120a.

What this means, Adelman said, is that the MDEQ is required to approve changes to legal agreements that meet the requirements of Part 201, as amended. When the MDEQ rejected Pall’s proposed changes in 2009, he said, the company went to court to get it approved, claiming that its plan met state requirements. Adelman said the court has made several rulings in connection with this particular cleanup effort, and “frankly, some of the rulings haven’t been favorable to us.”

The MDEQ had rejected the plan in 2009 for several reasons, Adelman said. The proposal lacked an adequate monitoring plan and contingency plan for dealing with the plume’s possible spread, and there was uncertainty about both the plume’s migration pathways and its current location.

The state’s primary concerns related to protecting of Barton Pond – where the city of Ann Arbor gets 80% of its drinking water – as well as protecting nearby residential wells. There was also the potential that dioxane standards might be changed. Adelman said there’s information from the U.S. Environmental Protection Agency (EPA) that might result in lowering the state’s current standard of allowing up to 85 parts per billion (ppb) of 1,4 dioxane in drinking water – which in turn could result in a stricter cleanup requirement. [By way of comparison, when the local 1,4 dioxane contamination was first discovered in the 1980s, the acceptable level in Michigan was just 3 ppb.]

Other concerns cited by Adelman were: the general protection of public health, safety, welfare and the environment; the proposal’s enforceability; and financial assurance from the company that they’d be able to carry out the cleanup to completion.

Adelman and Sybil Kolon, MDEQ’s project manager for the Pall site, described some of the changes made in the amended consent judgment. They include:

Map of expanded prohibition zone, where residents are prevented from drinking well water that might be contaminated by 1,4 dioxane. The green line indicates the previous area in which residents are prohibited from drinking well water. The red dotted line indicates the expanded zone. (Links to larger image.)

• Expansion of the so-called “prohibition zone.” This is an area where higher levels of 1,4 dioxane are allowed – up to 2,799 ppb – and where property owners are banned from using wells for drinking water. Because property owners in the zone can’t use their wells, they are required to hook up to the city water and sewer system, if they aren’t already connected. Pall covers only part of that expense. The zone is expanded to the north of the current boundary into the Evergreen subdivision area in Ann Arbor. [.pdf of expanded prohibition zone]
• Negotiation of deed restrictions on properties in certain areas outside the prohibition zone, in locations where 1,4 dioxane has been detected. The deed restrictions, to be negotiated between Pall and the property owners, would prevent the use of well water on those properties.
• Installation of additional groundwater monitoring wells by Pall to define and monitor the plume.
• A reduced rate of groundwater extraction by Pall at several locations, but with continued treatment and discharge to the Honey Creek tributary. The groundwater extraction can be terminated with MDEQ approval. Five active extraction wells east of Wagner Road will be decreasing their extraction rate from 500 gallons per minute (gpm) to 300 gpm. Twelve extraction wells west of Wagner will decrease their rate from 675 gpm to about 400 gpm.
• Continued monitoring by Pall of groundwater contaminated with 1,4-dioxane that exceeds the generic residential cleanup criterion of 85 parts per billion, until Pall can demonstrate the remaining groundwater contamination does not pose an unacceptable risk to human health, safety, welfare or the environment, now or in the future. There are 120 monitoring wells west of Wagner Road – of those, 88 are tested annually, 19 are tested semi-annually, and 13 are tested quarterly. East of Wagner, 107 monitoring wells are in place – 23 tested annually, 23 tested semi-annually, 53 tested quarterly, and 8 tested monthly. [.pdf map of monitoring well locations]

The previous consent judgment required full cleanup.

Dioxane Plume: Q&A

Over the course of the three-hour meeting, residents who attended asked a range of questions about the contamination and cleanup. Here’s a summary of the Q&A.

What’s the process of identifying wells that need to be “plugged” in the prohibition zone?

Kolon explained that some homes that are now a part of the city, located west of Maple Road, were originally in Scio Township – in the past they were not hooked up to city water. Subdivisions were platted in the 1920s, with homes built in the 1930s. Pall will survey those properties, she said, to check if wells are still in use. It won’t be a forced inspection, she added – they hope people will voluntarily allow the inspections, which Kolon said she would oversee. If property owners in the prohibition zone know of other wells that haven’t yet been plugged, they should come forward. She conceded that the process hasn’t gone as smoothly as they would have liked.

Who pays for wells to be plugged and homes hooked up to city water and sewer?

Kolon said it’s the state’s position that Pall should pay. But the company has asserted that if a well hasn’t been used for a certain period of time, it shouldn’t be their responsibility to plug it. The state will nevertheless ask Pall to pay for plugging all wells, Kolon said. “We hope we won’t have to go to court about that.”

A resident noted that Pall is paying only to hook up homes to city water service – the property owners have to pay for sewer hookup. “So what kind of deal is that?” he asked. “Sounds like Pall’s got us by the balls.” [The properties would also be annexed to the city of Ann Arbor, which means that property owners would pay Ann Arbor taxes – higher than taxes in the township.]

Kolon replied that at some point, those homeowners would have to hook up to the city’s water and sewer system anyway. State law requires that Pall pay only for the water service hookup.

Who’s monitoring the Pall-Gelman site to ensure they aren’t continuing to contaminate the water?

The company stopped using 1,4 dioxane in 1986, Kolon said. Now, there’s no manufacturing at all at that location.

What’s the status of monitoring the plume’s possible migration north, to Barton Pond?

Kolon said the MDEQ believes there will be adequate monitoring wells in place to detect possible migration. If monitoring wells to the north detect water with more than 20 parts per billion of 1,4 dioxane, then the company must investigate the situation, and possibly conduct a feasibility study to determine how to address the contamination.

A crowd gathers at Abbot Elementary School for a March 30, 2011 public meeting on the Pall 1,4 dioxane plume.

When a resident questioned the wisdom of having the company that’s responsible for the contamination also be responsible for monitoring it, Adelman said the MDEQ is overseeing the monitoring process. In the past, when split samples have been analyzed by both the company and the state, the results have matched up, he said. In response to another question, Adelman said there’s been no evidence that Pall has hidden results from a certain monitoring well.

Vince Caruso, a member of the county’s Coalition for Action on Remediation of Dioxane (CARD), said that they’ve discussed at CARD meetings the fact that there are competing analyses of the direction of water flow toward Barton Pond. A Michigan State University study leads them to believe the flow could move to Barton Pond – and if it moves too far, it may be too hard to contain, he said. Caruso also was concerned about contaminated groundwater getting into the basements of homes.

Adelman said the state shares that concern about Barton Pond – that’s why there’s a monitoring plan and wells in place, he said. Caruso indicated that it’s not reassuring to see the prohibition zone extended to the north.

Mike Gebhard, an environmental analyst with Washtenaw County, pointed out that not enough is known about the area’s geology to determine how the plume might spread. Originally it was thought that a protective layer of clay would prevent the plume from spreading east, but that didn’t stop the migration of contaminated groundwater.

Gebhard also noted that the monitoring wells on the northern boundary of the prohibition zone are – at their closest – 1,000 feet apart from each other, and sometimes much farther apart than that. It’s not a tight monitoring network, he said. He also observed that there’s no contingency plan in place if cleanup efforts fail and migration of 1,4 dioxane continues to Barton Pond.

How are residents notified that their homes are in the prohibition zone?

Over 4,000 parcels are located in the original prohibition zone, and neither Pall nor the state were required to contact each residence individually, Kolon said. The same is true for the roughly 400 parcels in the expanded zone. Notices about public meetings are published, but there are no direct mailings to residents.

How are deed restrictions on properties handled?

Deed restrictions, which would prohibit the use of wells for drinking water, will be negotiated between Pall and the property owner, Kolon said. The MDEQ is not involved. If a property owner doesn’t agree to Pall’s offer, it’s possible that the company could take the property owner to court to mandate a deed restriction.

How much 1,4 dioxane is in the plume?

State officials said it’s difficult to say how much wastewater was released over the years, and how much 1,4 dioxane remains underground, or where exactly it’s located. The amount of acceptable levels of 1,4 dioxane has also changed – when the contaminant was first discovered in local drinking water, the state’s criterion for acceptable levels was 3 parts per billion (ppb). That level has been raised to 85 ppb. A much greater geographic area contains 1,4 dioxane in levels below 85 ppb, but the state can’t require Pall to remediate those lower levels. And in the prohibition zone, up to 2,799 ppb is allowed. There are currently pockets where levels are higher levels than that – in the 3,000 ppb range. Those areas are being remediated.

What’s the difference between mass removal and full cleanup?

Full cleanup means decreasing the level of 1,4 dioxane to 85 ppb, Adelman said. For mass removal, there’s no strict standard, he said – Pall will continue to extract contaminated water, treat it, then reinject it into the ground or into the Honey Creek tributary. In the prohibition zone, up to 2,799 ppb of 1,4 dioxane is allowed in the groundwater. Over time, concentration levels have decreased in many areas, Adelman noted.

He clarified that “mass” refers to actual 1,4 dioxane. Kolon added that to date, 64,000 pounds of 1,4 dioxane have been removed from groundwater.

How much 1,4 dioxane remains underground, and how will Pall or the state determine when cleanup is complete?

When asked how much 1,4 dioxane is left, Kolon said they don’t know. Adelman noted that Pall has already removed more 1,4 dioxane than they originally predicted was underground.

There are 17 active extraction wells, from which Pall is removing contaminated water, treating it and reinjecting it into the ground or into a Honey Creek tributary. All extracted water is treated using ozone and hydrogen peroxide to destroy most of the dioxane, according to Kolon. The water that’s discharged to the Honey Creek tributary contains a monthly average of 7 ppb. Extraction wells are tested monthly. However, despite the extraction, the plumes are as big as they were roughly 15 years ago. And under the amended consent judgment, the amount of extraction will decrease.

Pall has cleaned up a lot, Kolon said, but a lot has migrated – “it moves wherever the groundwater takes it.” At some point, though, Pall will determine that they’ve removed enough 1,4 dioxane so that the plume won’t expand, and they’ll ask the state for permission to stop. If the state grants that permission, Kolon said, Pall would still be required to continue long-term monitoring for at least 10 years, and probably longer.

What happens if your property is outside the prohibition zone, but you have water with over 85 ppb?

Adelman said the county wouldn’t permit you to drill a well under those circumstances. “So those people are screwed,” the resident replied.

Why didn’t the state refuse to negotiate a new plan with Pall?

Adelman said that if they had denied the plan again, Pall would have asked the court to force the state to adopt it – and the company could have won. It was the collective opinion of MDEQ staff and a representative from the attorney general’s office, he said, that the court could impose something worse than what the state could negotiate. What they got isn’t perfect, he added, but it’s better than it might have been.

In the worst-case scenario, when will the contamination reach the Huron River?

Mike Gebhard, an environmental analyst with Washtenaw County, calculated that it could take 10-15 years or less. He said there aren’t enough monitoring wells in place at this point to get an accurate picture of where the flow is headed, and how fast.

What happens if Pall goes out of business?

Until this latest amendment to the consent judgment, there were no provisions for that possibility, Kolon said. Now, the state is getting a corporate guarantee from Pall, based on a five-year projection of their costs to operate the cleanup. Pall is doing quite well, she noted, but if things change and the company goes out of business, the state would get funds to run the cleanup. [In early March 2011, Pall reported a 52% increase in second-quarter earnings to $75.7 million, and a 15% jump in revenues to $645.2 million.]

What happens if the state reevaluates and lowers the current acceptable level of 1,4 dioxane, which is set at 85 parts per billion?

Adelman said the new consent judgment has a provision that allows the state to reopen that issue. If lower standards are put in place – when the 1,4 dioxane was originally discovered in this area, the state limit was 3 ppb – then the MDEQ could petition the court to require Pall to clean up groundwater to that new level, Adelman said. However, there’s no guarantee the court would agree to that change.

Could Pall ever be required to install equipment in the city of Ann Arbor’s water treatment plant that would remediate 1,4 dioxane?

Kolon said there have been some discussions of that possibility in the past. Adelman added that the state hasn’t pushed for it because it might be interpreted as accepting a scenario in which the city’s water source at Barton Pond gets contaminated.

As a taxpayer, why should I be happy about this?

Adelman said they weren’t saying that people should be happy. The state had to approve a proposal that complied with the law, he said. “Should you be happy? If I were you, I don’t think I would be.” He said he wasn’t going to try to sugarcoat the changes, but that it was the best they could do, given the constraints.

General Public Commentary

In addition to asking questions, several residents who attended the March 30 meeting leveled criticisms against the company, the court and the state, especially related to the process of amending the consent judgment.

Roger Rayle, a Scio Township resident who's been tracking how the state is overseeing Pall's 1,4 dioxane plume cleanup for many years, videotaped the March 30, 2011 public meeting held by MDEQ staff at Abbot Elementary School.

Roger Rayle, who videotaped the meeting, noted that the last public meeting was held in 2009. Based in part on public input from that meeting, Pall’s proposal was rejected by the state. But this time, he said, public input has been ignored. The county’s Coalition for Action on Remediation of Dioxane (CARD) meets regularly – those meetings are open to the public – but their input has been ignored as well, Rayle said. Now, without public process, much of Pall’s proposal has been codified. He said he wasn’t blaming Adelman or Kolon personally, but they are agents of the state. The outcome is not good for the state of Michigan, and that’s not good for protecting the Great Lakes, which contain 20% of the world’s fresh water.

Rayle said the fact that Judge Shelton didn’t see all the facts related to the plume is a problem. “It’s not that the foxes are in charge of the henhouse,” he said. “The foxes are architects of the henhouse.”

Pat Ryan, an Ann Arbor resident, told the group that everyone should know how important it is for the community to be vigilant about this situation. Citizens need to be talking to state officials as often as the company does, she said. She noted that Washtenaw County isn’t at the vanguard of regulatory deterioration – “we’re just joining the rest of the state.”

Yousef Rabhi – a county commissioner who represents District 11, an area covering southeast Ann Arbor – told Adelman and Kolon that at the end of the day, they worked for the public. He said it’s incumbent on citizens to elect people at the state level who’ll represent their interests when it comes to issues like environmental protection. Rabhi, who is the county board’s liaison to CARD, urged people to contact their current state officials – it’s important to hold them accountable. When he noted that he didn’t think his district was affected by the plume, someone in the crowd shouted out, “It will be!”

Coda: April 5 CARD Meeting

Rabhi also was among a much smaller group who attended the most recent meeting of the Coalition for Action on Remediation of Dioxane (CARD), held on Tuesday, April 5. CARD is a coalition of citizens and local governments – including the county – that’s focused on addressing the 1,4 dioxane problems.

An April 5, 2011 meeting of the Coalition for Action on Remediation of Dioxane (CARD). Clockwise from left: Sybil Kolon, project manager with the Michigan Dept. of Environmental Quality; Washtenaw County commissioner Yousef Rabhi; Ann Arbor Township supervisor Mike Moran; Mike Gebhard, Washtenaw County environmental analyst; Vince Caruso of the Allen Creek Watershed project; Matt Naud, city of Ann Arbor environmental coordinator; and Gordon Bigelow, Ann Arbor resident. Obscured from view is Roger Rayle, a leader of Scio Residents for Safe Water, and Rita Caruso, who serves on the Ann Arbor environmental commission.

This was the first meeting since news that the amended consent judgment had been signed, though members had known it was in the works. Kolon also attended, and many of the questions posed by CARD members dealt specifically with terms of the amended agreement. Some people at the meeting expressed a certain amount of resignation that, since it was a done deal, there’s very little room for input. Mike Moran, Ann Arbor Township supervisor, noted that nearly every item that’s stipulated in the consent judgment also allows for the possibility of dispute resolution – that means whenever Pall wants to change the terms, they can make that request to the court.

Mike Gebhard, an environmental analyst with the county who led the CARD meeting, opened the discussion by saying they hoped to ask questions of Kolon about the consent judgment and its interpretation, and to get a sense of “where we fit in.”

The Chronicle was unable to stay for the entire April 5 CARD meeting. In a phone interview the next day, Matt Naud – the city of Ann Arbor’s environmental coordinator – said the meeting primarily offered CARD members a chance to ask questions about the consent judgment, since MDEQ staff hadn’t previously been able to talk about the agreement while it was being negotiated. He said Rabhi had suggested that CARD compile a list of all the issues they would like to see addressed, if given the opportunity. That’s an action item they’ll pursue.

For example, in 2009 a consultant hired by the city of Ann Arbor proposed putting two additional wells on the north boundary of the prohibition zone, to provide data that could help determine where the plume is flowing. Those wells aren’t required as part of the consent judgement.

Naud noted that historically, another challenge has been that Pall has greater resources on its side, including well-paid attorneys, while the state relies on MDEQ and the attorney general’s office. At the April 5 meeting, some members discussed the fact that the attorney general’s staff hasn’t been well-prepared when in court to argue for tighter regulation of the cleanup.

CARD plans to continue to meet. MDEQ staff and CARD’s technical group are tentatively scheduled to meet next on April 27 at 9 a.m. at the Washtenaw County Western Service Center, 705 N. Zeeb Rd. Check CARD’s website for confirmation of the meeting date and time.

Washtenaw County clerk Larry Kestenbaum, left, talks with county commissioners Leah Gunn and Dan Smith at the board's Feb. 3 working session. (Photos by the writer.)

When block-by-block data is released from the 2010 census next month, Kestenbaum will convene a five-member apportionment commission that will craft a plan to redraw district lines, based on population shifts. Currently there are 11 districts for the county board, including four in Ann Arbor.

For a county the size of Washtenaw, it’s possible to have as few as five districts, or as many as 21. Kestenbaum said he didn’t think it would be politically viable to talk about an increase in the number of commissioners. Maintaining the current number – or having fewer districts – would be the likely outcome, he said, but that’s a decision the apportionment commission will make, with public input.

Kestenbaum’s own political career has been influenced by redistricting. He served on the county board from 2000-2002, but decided not to run for reelection when redistricting landed him in the same district as fellow incumbent Democrat Leah Gunn. Instead, he ran for county clerk in 2004 and was elected to that position, winning re-election in 2008.

Prior to Kestenbaum’s presentation, the board heard from Roger Rayle during public commentary time. Rayle, a leader of Scio Residents for Safe Water, gave an update on the Pall-Gelman 1,4-dioxane plume, calling it “the gift that keeps on giving.”

Public Commentary: Pall-Gelman 1,4-Dioxane Plume

Roger Rayle, a resident of Scio Township, said he’d come to give the board an update on the Pall-Gelman 1,4-dioxane plume. He has been tracking this issue for more than a decade.

[By way of brief background, in the 1960s Gelman Sciences, which manufactured medical filters and other microfiltration products, began pumping industrial wastewater into holding lagoons behind its factory at 600 Wagner Road in Scio Township. By 1985, tests showed some local residential wells were contaminated with 1,4-dioxane, a substance that's considered a carcinogen. In 1988, the state filed a lawsuit against the company to force a cleanup.

In 1997, Gelman Sciences was sold to Pall Corp., which is headquartered in East Hills, N.Y. The city of Ann Arbor filed a separate lawsuit in 2004. In 2007, Pall closed the plant on Wagner Road where the contamination originated. However, the groundwater treatment facility continues to operate there, as part of a court-ordered cleanup effort that's directed by the state Dept. of Natural Resources and Environment (formerly the Dept. of Environmental Quality).]

Roger Rayle spoke to commissioners during public commentary at their Feb. 3 working session, giving an update on the Pall-Gelman 1,4-dioxane plume.

On Thursday, Rayle told commissioners that “something bad is about to happen” – the state is about to approve a plan that 1.5 years ago wasn’t acceptable, he said. The plan would allow the company to reduce its cleanup efforts and expand the well prohibition zone – the area in which property owners are banned from using wells for drinking water. Properties in the zone are also required to attach deed restrictions related to the contamination. People who can’t use their wells are required to hook up to the city water and sewer system, Rayle said, and they incur a cost for that. They also might be required to pay city taxes, which are significantly higher than township taxes, he noted.

[City taxes would be paid only if the properties are annexed into the city of Ann Arbor. In a subsequent phone interview with The Chronicle, Wendy Rampson – head of Ann Arbor's planning staff – said that to date, the township properties affected by the plume, unless they are unbuilt land, have been annexed. That's because they've been located within a sewer service agreement area that Scio Township previously struck with the city. (Ann Arbor has similar agreements with Pittsfield and Ann Arbor townships.) If properties are located outside of that service agreement area, it's not necessarily the case that they'd be annexed in order to receive city water and sewer – Ann Arbor also sells those services to Scio Township, in some areas.]

At Thursday’s working session, Rayle said the real danger is the migration of the plume northward, possibly toward Barton Pond – a source of Ann Arbor’s drinking water. Why take that risk? he asked. There’s no reason, he added, other than the cleanup is inconvenient for the company.

[For additional background, see Chronicle coverage: "Concerns Raised over Dioxane Cleanup." Also, here's a link to a video of the May 27, 2009 public meeting held by the Michigan Dept. of Environmental Quality (MDEQ) about proposed changes to the cleanup plan.]

Public Commentary: Commissioner Response

Several commissioners thanked Rayle for the update, and for his ongoing work in tracking the situation. Leah Gunn said she remembers when Rayle would come to board meetings years ago with large paper maps showing the plume. He noted that Google Earth has helped his task considerably.

Gunn told him that the area’s state legislators need to be informed of the situation, though she added that they are no doubt aware of it already. Former county commissioner Jeff Irwin – a Democrat who now is the state representative for District 53, which covers Ann Arbor – would be the first person to contact, she said. Other local legislators to contact, Gunn said, are state Sen. Rebekah Warren (D-District 18), Rep. Mark Ouimet (R-District 52, and a former county commissioner from Scio Township), and Rep. David Rutledge (D-District 54). Gunn urged residents to contact their state legislators and tell them it’s the wrong decision. The state needs to protect its citizens, she said.

Barbara Bergman asked whether the county’s website could link to Rayle’s online information. Rayle reported that the information is already available on the site for the Coalition for Action on Remediation of Dioxane (CARD), which is hosted by the county. CARD is a coalition of citizens and local governments – including the county – that’s focused on addressing the dioxane problems. [Yousef Rabhi, a new commissioner who is now chair of the board's working sessions, was recently appointed as the board's representative to CARD.] Additional information is on the Scio Residents for Safe Water website, Rayle said. The state also maintains a website related to the plume.

One problem, Rayle said, is that many people who are making these decisions don’t live in this area. He also noted that negotiations between the state and the company have been happening behind closed doors, and privately in the judge’s chambers. [The litigation is being handled by Judge Donald Shelton of the 22nd Circuit Court in Ann Arbor. Shelton is chief judge of the Washtenaw County Trial Court, which includes the circuit court.]

Rayle doesn’t think that Shelton has seen the Google Earth mash-ups of the dioxane plume – it’s not clear why the state won’t introduce them to the court, he said, adding that it’s obvious why the company doesn’t want that information shown.

Kristin Judge asked whether it would be helpful for the board to pass a resolution opposing the deal. Rayle reported that unless the state and Pall reach an agreement, Shelton has ordered an evidentiary hearing for Feb. 14. Rayle said he doesn’t know why the state wouldn’t want the hearing – there hasn’t been one in several years. He suggested that if the board were to pass a resolution in support of an evidentiary hearing, that would be helpful. [The board's next regular meeting is Feb. 16 – two days after the possible hearing date.]

Judge asked Rayle to help them with details in crafting a resolution of support. She said the situation doesn’t affect her district – Judge represents District 7, in Pittsfield Township – but that she’s concerned about Ann Arbor’s water supply.

Rayle earlier had told commissioners that they should all be concerned: “If it doesn’t involve your district now, it will.”

County Redistricting: History, Process

Every 10 years, following completion of the U.S. Census, districts for the county board of commissioners are redrawn, as part of a broader redistricting that occurs at the local, state and federal levels. At Thursday’s working session for the county board, Washtenaw County clerk Larry Kestenbaum briefed commissioners about the county redistricting process – known as reapportionment – giving it historical context as well as outlining possible outcomes. Among other things, Kestenbaum, a Democrat, is also a political historian and creator of The Political Graveyard website.

County Redistricting: Historical Perspective

Kestenbaum spent much of his talk providing background about the county system of government, set against the larger stage of state and national events. Many settlers in Michigan came from New York, he said, and essentially transplanted the eastern state’s place names and government, among other things. Counties were divided into townships, and every township supervisor was a member of a board of supervisors, which handled countywide matters. At the time, it made sense that every township got one vote. Over time, as more urban areas developed, the state statute was changed to reflect that population shift, and cities got an increasing number of representatives on the board. By the time the board of supervisors system was discontinued, Ingham County’s board, for example, had an unwieldy 42 members, he said.

Malapportionment was common by the late 1800s, and was addressed with the passage of the 14th Amendment in 1868 – part of the post-Civil War Reconstruction Amendments. In relevant part:

Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Section 2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Apportionment also reflected rural/urban tensions, Kestenbaum said. The 1920 census found, for the first time, that the majority of Americans lived in urban areas. This was shocking news, he said, but there was no attempt to acknowledge the change by reapportioning districts. That finally happened after the 1930 census, when congressional districts were redrawn. In Michigan, members of the U.S. House of Representatives increased from 13 to 17 – all added in the Detroit area. [District 17 was later dissolved after the 1990 census results; District 16 was eliminated after the 2000 census.]

Nationwide, many states weren’t taking the reapportionment mandate seriously, Kestenbaum said. In 1962, the U.S. Supreme Court finally weighed in with a ruling on the Baker v. Carr case, involving the Tennessee legislature. The ruling determined that the courts could intervene in reapportionment cases – the issue wasn’t a political question, but a judicial one – and that states must create districts with roughly equal populations. A subsequent 1964 ruling in Reynolds v. Sims established the principle of one man, one vote. The same logic applied to state legislatures, Kestenbaum said, and in turn, the Michigan legislature began looking at the system of county boards of supervisors.

Michigan lawmakers created the current system of county apportionment with Act 261 of 1966. Though it was initially thrown out by the state supreme court as unconstitutional, Kestenbaum said, the U.S. Supreme Court later validated the concept that the principle applying to state and federal districts also applied at the local level. Districts were redrawn in 1968, and again after the 1970 census.

At that time, the principle of equal populations was taken very seriously, Kestenbaum said, which created districts with very ragged, complicated boundaries. That problem was ultimately addressed in the 1970s and early 1980s, resulting in what’s known as the “Apol rules” – criteria developed by Bernie Apol, who served as state elections from 1967-1980. The rules were based on the notion of not splitting precincts or jurisdictions, whenever possible.

A 1982 state supreme court decision – involving apportionment plans in Wayne and Ingham counties – affirmed those general principals. Kestenbaum provided a copy of the ruling to commissioners. An excerpt:

An apportionment plan for a county board of commissioners must be drawn both to preserve city and township boundary lines and to accord with other statutory apportionment guidelines to the extent possible without violating equal protection guarantees of the United States Constitution.

Those same principals still apply today, Kestenbaum said.

[A commentary written by Apol in 1987 and published by Public Sector Consultants Inc. provides a more detailed history of reapportionment, which included considerable litigation and political machinations. .pdf file of Apol's column]

County Redistricting: How It Works Today

For Washtenaw County’s upcoming redistricting, the process will begin when block-by-block census data is released, Kestenbaum told commissioners. That happens no later than April 1, but will likely happen sometime in March. At that point, Kestenbaum, as county clerk, will convene a five-member county apportionment commission. In addition to the clerk, members are the county treasurer (Catherine McClary), prosecuting attorney (Brian Mackie), county Democratic Party chair (Cleveland Chandler), and Republican Party chair (Mark Boonstra). [The clerk, treasurer and prosecuting attorney are all positions elected by the general public. Kestenbaum, McClary and Mackie are Democrats. Kestenbaum and McClary are former county commissioners.]

Larry Kestenbaum, Washtenaw County clerk, briefed county commissioners at their Feb. 3 working session on the upcoming redistricting process.

After the census data is released, the group has 60 days to adopt an apportionment plan. For a county the size of Washtenaw – counties with a population between 50,001 and 600,000 residents – by law, the number of commissioners can range from five to 21, Kestenbaum said. In Washtenaw, there are currently 11 county commissioners – a number that was set after the 2000 census. For the 10 years prior to that, there were 15. In the 1980s, there were nine commissioners.

The plan must determine the number of county commissioners, as well as the boundaries of each district, Kestenbaum said. To do this, they must follow two criteria: (1) preserve, as much as possible, the boundaries of cities, townships, villages and precincts; and (2) keep each district’s population size within the range of 94.05% to 105.95% of the “ideal” population. The “ideal” district population is calculated by dividing the county population by the number of districts. [The statute that dictates the apportionment process for county boards is Act 261 of 1966.]

If for some reason the commission doesn’t adopt a plan by the 60-day deadline, then anyone can submit a plan, and the commission must choose one of those. Legal challenges to the adopted plan go directly to the state court of appeals. In the past, the only challenges that have been entertained by the court are those related to district boundaries, not to the number of districts, assuming that those districts are within the legal range.

Kestenbaum said he didn’t think it would be politically viable to talk about an increase in the number of commissioners. He thought that having 5, 7, 9 or 11 districts would be the likely choices, noting that an uneven number is preferable.

McClary, he said, is interested in having as few commissioners as possible. But his feeling is that if there’s only five commissioners, those people would be very powerful. And because they’d be representing larger districts, he didn’t think the representation would be as strong – their districts would cover too much territory. Kestenbaum said his inclination is towards having more districts.

The electoral system is demanding on voters, Kestenbaum said. As an Ann Arbor resident, he said he votes on 97 different positions, everything from state supreme court justices to the local library board. Even though he’s county clerk, he said, he couldn’t name all those elected officials off the top of his head. Given the demands on voters, they deserve to have a system that’s as simple, straightforward and transparent as possible, he said. The more complicated it is, the more suspicious people become, he added. So there’s a public interest in the redistricting process.

It’s also important that the districts reflect the communities they represent. Kestenbaum noted that both districts he’s served as county commissioner – first in Ingham County, then in Washtenaw – were long and skinny, spanning areas that had nothing in common with each other. That also does a disservice to voters.

They’ll have a lot more information when the census data is released, he said, which will show if there have been any population shifts over the past 10 years. The census was conducted during a recession, so the U.S. Census Bureau was able to hire a higher caliber of worker, he said. Because of that, coupled with the fact that it was a short form to complete (the shortest form since 1790), “this is probably the best census we’ve had in a long time,” Kestenbaum said. He noted that Bob Groves, a University of Michigan professor, had overseen the process, as head of the census bureau. [Groves was appointed to the position in 2009 by President Barack Obama.]

Kestenbaum noted that this process of reapportionment will influence policy-making for the next 10 years. He said that though he’s friends with all of the commissioners, he’ll be setting politics and personalities aside. He doesn’t want anyone to feel indebted to him, nor does he seek to antagonize them. But it’s his duty to take part in this process, he said.

“I’m looking to create districts that work for the community,” Kestenbaum said, “and this is really a community decision.”

County Redistricting: Commissioner Questions, Comments

Conan Smith, the board’s chair, asked what the board’s role should be in this process. Kestenbaum replied that he was sure they’d offer input, and he hoped to keep everyone informed via email and other means. All meetings of the apportionment commission are open to the public, he said.

Smith then asked what kind of public engagement would be involved. That will be up to the entire commission to decide, Kestenbaum said, but he expected they would have public hearings as they move through the process. However, he said he could already sense that there are differing opinions among commission members about how to handle that, so it was still unclear what they’ll ultimately do. For his part, Kestenbaum said he sees redistricting as a community decision, and public input is part of that.

Smith suggested that as the process progresses, they might schedule another working session to get an update from Kestenbaum.

Barbara Bergman said she is in favor of a larger board, or at the least keeping 11 commissioners. She reported that she has decided not to seek reelection in 2012, so she won’t be affected by the decision. “If we went back to 15, I’d be a very happy citizen,” she said.

Wes Prater told Kestenbaum that “you’re in the hot seat.” He clarified with Kestenbaum that the redistricting is based on population, not the number of registered voters. He asked whether the apportionment commission has met yet. No, said Kestenbaum, he hasn’t convened the commission. When he does, they’ll elect a chair and move forward. Kestenbaum said his preference is to start as early as possible, get maximum public input, and resolve the redistricting in a way that does not result in litigation.

Leah Gunn concluded the commissioners’ remarks by thanking Kestenbaum for not running against her, following the last redistricting. The changes put both of them – who were both incumbants – into the same district, and she recalled that Kestenbaum had called her to say he wouldn’t seek re-election. She said she subsequently supported him in his run for county clerk, and that now he’s “in a much better place.”

Present: Barbara Levin Bergman, Leah Gunn, Kristin Judge , Ronnie Peterson, Alicia Ping, Wes Prater, Yousef Rabhi, Rolland Sizemore Jr., Conan Smith, Dan Smith, Rob Turner.

Next meeting: The board’s administrative briefing, to preview the Feb. 16 agenda, will be held on Wednesday, Feb. 9 at 5:30 p.m. in the offices of the county administration building, 220 N. Main St. That meeting will be followed by a special meeting focused on the budget, from 6-9 p.m. The board’s next regular meeting is on Wednesday, Feb. 16, 2011 at 6:30 p.m. at the county administration building, 220 N. Main St. The Ways & Means Committee meets first, followed immediately by the regular board meeting. [confirm date] (Though the agenda states that the regular board meeting begins at 6:45 p.m., it usually starts much later – times vary depending on what’s on the agenda.) Public comment sessions are held at the beginning and end of each meeting.

A section from a map showing the Pall Life Sciences 1,4 dioxane plume. The red dots indicate monitoring wells. (Image links to a .PDF file of the full map.)

An effort to change the cleanup of contaminated groundwater has come under fire by local residents and government officials who’ve been keeping an eye on the issue for more than 20 years.

At Wednesday’s annual meeting of the Coalition for Action on Remediation of Dioxane, residents said that requested changes filed by Pall Life Sciences earlier this month with the Michigan Department of Environmental Quality would allow higher amounts of the contaminant, 1,4-dioxane, in the groundwater. As a result, they said, the 1,4-dioxane, a presumed carcinogen, could flow northward and reach Ann Arbor’s primary drinking water supply at Barton Pond.

“The more you let (the contamination) go north, the more you risk letting it get to Barton Pond,” said Matt Naud, environmental coordinator for the city of Ann Arbor, which is part of CARD member.

CARD is a group of citizen and governmental groups concerned about cleanup of the contamination, a process that began in the mid-1980s. At Wednesday’s annual meeting, held at the Washtenaw Intermediate School District on South Wagner Road, CARD members criticized the proposal, saying information, such as the amount of water pumped out of the aquifer, was missing. “A lot of geology and hydrogeology has not been evaluated yet,” said Vince Caruso, head of the Allen’s Creek Watershed Group. “More study needs to be done.”

The main concern for CARD was whether the contamination’s spread to the north would reach the Huron River, polluting Barton Pond, where the city pumps more than 80 percent of its residents’ drinking water.

The company’s new proposal would expand the area where wells are prohibited because of the contamination. Residents in that area would have to hook up to water piped in by the city of Ann Arbor.

If no wells were in use, regulations on allowed levels of contamination could be eased, and CARD members said they feared cleanup of the contamination would be cut back.

The proposed changes also do not include a contingency plan to treat any 1,4-dioxane in case the contamination reaches Barton Pond, said Naud. “Without a contingency plan, this plan – I would say – is non-reviewable,” he said.

The DEQ is in the process of evaluating Pall’s proposal, said Mitch Adelman, district supervisor for the agency’s remediation and redevelopment division, who was at the CARD meeting along with about 20 other people.

He was not surprised to see that company officials wanted to expand the area where wells would be prohibited, Adelman said, but “I expected to see a contingency plan in their proposal.” If the well-exclusion area is expanded, he said, there needs to be “robust monitoring,” in addition to a contingency plan.

DEQ officials have set up a public comment period – until June 8 – and a public meeting on May 27 from 7 to 9 p.m. at Haisley Elementary School, 825 Duncan St., in Ann Arbor.

DEQ must respond to the proposal by June 15. For the changes to be finalized, they must go through Washtenaw County Circuit Court, which oversees the cleanup.

The contamination began in the 1960s, when Gelman Sciences, which manufactured medical filters, pumped industrial wastewater into holding lagoons behind its factory at 600 Wagner Road in Scio Township. By 1985, tests showed some local residential wells were contaminated with 1,4-dioxane.

In 1997, Gelman Sciences was sold to Pall Corp. Ten years later, Pall, which is headquartered in East Hills, N.Y., closed the plant on Wagner Road where the contamination originated. However, the groundwater treatment facility continues to operate there, said Sybil Kolon, environmental quality analyst for DEQ.

Though efforts to measure and treat the contamination have gone on for years, groundwater contamination continues to turn up in testing – though rates have fallen overall – even while the pollution has spread.

Currently, Pall pumps out the groundwater for treatment and either dumps it into Honey Creek or re-injects it into the ground.