Madison Heights seeks to block delay of civil trial against alleged I-696 ooze polluter
Pontiac — The city of Madison Heights is opposing any further delay to a pending Oakland County civil trial involving the company blamed for the green "ooze" along the shoulder of eastbound Interstate 696 that is contaminated with the carcinogen hexavalent chromium.
Gary Sayers of Bloomfield Hills has been ordered to report to an unnamed federal facility Friday to begin serving a one-year federal prison sentence for illegally storing hazardous waste and posing a "public health hazard," according to a filing Thursday in Oakland Circuit Court.
Sayers, who has been described as an "industrial hoarder," has pleaded guilty to illegally storing hazardous waste without a permit at his Electro-Plating Services company on East 10 Mile in Madison Heights. The city has sued to have him ordered to demolish the buildings or be allowed to do the work itself if he doesn’t comply with a court order.
Sayers’ attorney told the city Monday that because of his client’s notice to report to prison, he seeks an adjournment of a Jan. 13 trial date before Oakland Circuit Judge Hala Jarbou. The attorney argues Sayers’ "absence would unfairly prejudice defendant’s ability to defend the case.” Arguments are expected to be heard regarding the adjournment on Jan. 8.
"When asked about the timing of the (adjournment) notice and the location defendant is required to report to, defense counsel has been evasive," Madison Heights City Attorney Jeffrey A. Sherman wrote to Jarbou.
Attorneys for both sides could not be reached for comment Thursday, but court records indicate this would be the second adjournment of a trial that was initially scheduled to be held Nov. 25 — about a month before contaminants from the site caused a partial shutdown of I-696 in Madison Heights and prompted an ongoing review of a federal cleanup criticized by city and county officials.
The developments came as Hazel Park officials said Thursday that tests show there are no detectable traces of the hazardous chemical in storm drains on the 10 Miles side of the building. But the tests conducted Dec. 26 near the site showed "positive results" for the contaminant in storm drains north of the building along I-696, according to a post on the city's Facebook page.
All city storm drains connected to I-696 weren't contaminated, Warren Mayor Jim Fouts said Monday.
Contractors for the U.S. Environmental Protection Agency did more soil borings Thursday and took samples of groundwater and storm sewer water. The federal agency has initially determined that the green ooze spotted along I-696 has migrated underground northeast of the facility," said Jill Greenberg, spokesman for the Michigan Department of Environment, Great Lakes and Energy.
State and federal agencies are trying to figure out how far the contaminant has moved and to develop a long-range plan for cleaning up and containing any hazardous contaminants, she said.
The city of Madison Heights is disputing the claim by Sayers' attorney that the civil case should be delayed, noting the Michigan Court of Appeals has ruled “there is no requirement that a defendant in a civil case appear at trial.” Sayers and companies also are represented by a “very able attorney” at the bench trial to be held before Jarbou, the city says.
But most important, Madison Heights argues, is the condition of the property “constitutes a public health hazard," and that any further delay would harm the city and its residents.
The EPA spent $1.5 million over 10 months cleaning up hazardous waste found at the site, but Madison Heights filed a lawsuit last year seeking further cleanup and demolition of three buildings owned by Sayers. The buildings were shut down in December 2016 by the state after thousands of leaking containers containing toxic chemicals were found inside.
The civil case was turned over to a court-approved facilitator, Thomas J. Ryan, who toured the facility with attorneys on Dec. 16 and Dec. 20, according to court records.
The city’s pleadings Thursday note that immediately after the second visit, “there was a release of bright green liquid onto the shoulder of I-696, east of the Couzens off-ramp in Madison Heights.
“This release came from the earthen pit in the basement of the building (at 945/959 E. 10 Mile Road). This bright green liquid is groundwater contaminated with hexavalent chromium (a known cancer-causing agent), cyanide, trichloroethylene (a degreasing agent) and other metals, all hazardous chemicals used in the defendants’ prior business,” according to the city's filing.
Sayers dug a 10-foot-square pit that is five deep into clay soil beneath the building’s basement, which collected industrial waste, rainwater from the building’s leaking roof and groundwater that seeped under the building, according to the city.
“When defendant’s business was operating, defendant pumped the liquid from the pit into a treatment system and then into the sanitary sewer, causing damage to the city’s sanitary sewer main,” the city's filing says. “Over time, the clay walls and floor of the pit became contaminated with the chemicals used in the plating operation. As groundwater seeps in and out of the pit, it carries the contamination away from the building.”
Storm sewers around the building and on I-696 carry stormwater into Bear Creek, the Red Run Drain, the Clinton River and eventually into Lake St. Clair.
“Any pollution or contaminate entering this system ends up in state’s lakes and rivers,” the city wrote to Jarbou.
Federal and state investigators have not yet determined how much contamination may have entered the storm sewer before the leaking from the basement was discovered. The EPA installed sump pumps in the basement and highway embankment, and additional groundwater samplings and soil borings are ongoing.
Health concerns have been raised by neighboring communities and areas possibly impacted, including in Macomb County, where Public Works Commissioner Candice Miller has charged that the cleanup was incomplete. Officials in Hazel Park and Warren have both advised residents that inspectors have checked out their respective storm drains but found no contamination.
Gov. Gretchen Whitmer has also said state agencies will be reviewing the situation for additional redress and possible penalties.
Staff Writer Charles Ramirez contributed