06/01/2007

Judge halts Kolke Creek cleanup

BY SHERI McWHIRTER

smcwhirter@record-eagle.com

Record-Eagle/Sheri McWhirter
Jeff Simpson shows where Kolke Creek runs into Lynn Lake, and eventually into the Au Sable River, in this 2005 file photo.

GAYLORD — A state judge halted a hotly disputed groundwater cleanup project in Otsego County, ruling the proposed method would harm the environment and violate state laws.

Judge Dennis Murphy, of the 46th Circuit Trial Court, ruled this week that Merit Energy's state-approved plan to pump 1.15 million gallons a day of treated wastewater to Kolke Creek was unreasonable.

He further said the plan would negatively, permanently alter a delicate ecosystem: the headwaters of the famed Au Sable River, a blue ribbon trout stream that with its tributaries flows through eight Lower Peninsula counties.

"This is a tremendous victory for all trout streams in Michigan. They will look at future remediation projects differently, rather than just looking to dump into the nearest creek,” said Rusty Gates, president of the conservation group Anglers of the Au Sable.

The Anglers filed a lawsuit against both the state and Merit last year in conjunction with the Mayer and Forcier families, riparian property owners downstream from the proposed discharge spot in Hayes Township. The suit sought to halt a cleanup strategy to remove petrochemicals from a toxic groundwater plume and dump the treated water into Kolke Creek, part of another watershed more than a mile away.

Murphy criticized the Michigan Department of Environmental Quality for approving the project in 2005 without doing any studies on environmental impacts. He heard 13 days of expert testimony about erosion concerns, possible spreading of contamination and the distinct hydrological properties of the area, among other issues.

"The harm to the ecosystem would significantly outweigh any benefit derived from the use, in light of the alternative methods available,” Murphy wrote in his opinion.

He said those alternatives, such as an infiltration basin or deep-well injection for the wastewater, were not explored by state and company officials until after litigation began. Murphy also noted that Merit last year installed a pipeline to Kolke Creek, despite the lawsuit.

Merit paid $411,000 for that pipe, state officials said.

Lansing attorney Charles Barbieri, who represents Merit Energy, could not be reached for comment.

State lawyers and DEQ officials said they have not decided whether to appeal the decision, which would further delay remediation of polluted groundwater that continues to move toward residential areas. Two private water wells already have been contaminated.

"We believe that the plan we were going with was the most environmentally protective plan we could come up with to do this cleanup. If we can't go forward with that, we'll have to decide what our options are at this point, consider alternatives on the table and do what we can to keep this cleanup project on track,” said Bob McCann, DEQ spokesman.

Gaylord attorney Susan Hlywa Topp said her clients, the plaintiff riparian landowners, hope Merit and the DEQ opt for alternatives.

"I think there's a real injustice for private citizens, residents of the state, to expend hundreds of thousands of dollars to protect the natural resources of the state of Michigan. That should have been the DEQ's job from the beginning,” Topp said.

Murphy ruled that if Merit obtains riparian rights to Kolke Creek from the state, all parties will have 30 days to decide upon a reasonable discharge level. If that doesn't happen, a hearing will be held to "focus solely on what discharge level, if any, constitutes a reasonable use of Kolke Creek,” Murphy said.

McCann said DEQ officials have not decided whether to grant riparian property rights to Merit.