Judge blocks Kolke Creek discharge
HAYES TOWNSHIP — More than a million gallons of treated groundwater will not be pumped into Kolke Creek daily, based on Tuesday’s 46th Circuit Court ruling which granted an injunction blocking a controversial contamination remediation plan.
The case stems from a suit filed by Anglers of the AuSable Inc. and two groups of area land owners against the Michigan Dept. of Environmental Quality (DEQ) and Merit Energy Company over a year ago, seeking to stop discharge of treated groundwater into Kolke Creek. The suit followed the DEQ’s issuance of a permit to Merit in March 2005 to discharge the water as part of a remediation plan.
That remediation of a plume of contaminated groundwater would have resulted in the pumping of over 1 million gallons of treated water into the creek to remedy the hydrocarbon contamination discovered in April 2001.
Judge Dennis Murphy issued his 32-page opinion and order granting the motion for the injunction following 13 days of testimony held since Feb. 26.
In his opinion, Murphy wrote that the proposed plan was “unreasonable” and would violate the Michigan Environmental Protection Act. He also wrote that there are other “feasible” and “prudent” remediation plans that would not require discharging into Kolke Creek, which he said was unsuitable location for the discharge of the groundwater due to its “delicate” ecosystem. The opinion also stated the defendants did “not realistically consider reasonable alternatives” until the suit began.
Further, the opinion stated Merit did not have riparian rights to Kolke Creek and that even if it did earn such rights through the state, it would have to demonstrate “reasonable” use in such remediation plans. If Merit did obtain riparian rights, the parties would have 30 days to decide what level of discharge into Kolke Creek, if any, would be reasonable. If the involved parties cannot come to an agreement on what discharge level is reasonable, then an evidentiary hearing would follow.
“This case had the potential to set a precedent for the oil and gas industry to use the surface water and streams in the state to dispose of their waste and that was a precedent we were so worried about avoiding,” said Gaylord attorney Susan Hlywa Topp, who represented Lynn Lake land owners from Mayer Family Investments and Nancy A. Forcier Trust, who brought the suit along with Anglers.
MDEQ spokesperson Bob McCann said it’s too early to know if the agency would appeal as they needed to examine the decision and its impact on the project.
“Our primary concern remains the same, cleaning up what’s been a historical contamination in the area. That’s what we remain committed to doing. We feel the plan we had was as protective to the environment as possible,” McCann said.
According to the court opinion, while the growing 3,000-foot plume has contaminated two residential drinking wells with the potential to pollute more, alternate solutions could be started in a timely enough fashion that harm to Kolke Creek and Lynn Lake by going ahead with the water discharge plan outweighs any immediate harm to Merit or surrounding land owners.
Kolke Creek is a headwater system for the AuSable River watershed and flows into Lynn Lake.
Calls to Merit’s attorney were not immediately returned by press time.
Calls to the Anglers of the AuSable also were not returned by press time.
It was unclear whether or the plaintiffs would appeal.