Published: February 02, 2008 11:00 pm      

Judge: Kolke cleanup permit was illegal

Circuit court ruling reverses earlier decision

GAYLORD -- Kolke Creek defenders won another battle.

A circuit court judge reversed a decision made by a state administrative law judge in a long-running conflict about whether to allow treated water from a contaminated groundwater plume to be dumped into a headwaters creek of the Au Sable River.

Judge Dennis Murphy ruled this week that the state Department of Environmental Quality illegally issued a cleanup permit to Merit Energy in March 2005. The ruling by Murphy, of the 46th Circuit Court, reversed a May 2006 decision of state Administrative Law Judge Richard Lacasse.

Lacasse had decided the DEQ permit met legal guidelines and he dismissed an administrative appeal filed by conservation group Anglers of the Au Sable.

Murphy, however, noted such permits only are allowed for discharge of treated gasoline and petrochemicals, while Merit's proposed cleanup in Otsego County's Hayes Township also involves the chemical chloride.

Proposed discharge of 1.15 million gallons per day of treated water also would violate the Michigan Environmental Protection Act because of negative effects on nearby wetlands, lakes and downstream areas, Murphy ruled.

It would rise "to a level of impairment or destruction of a natural resource so as to constitute environmental risk and justify the rare exercise of judicial intervention," Murphy said in a written opinion.

Traverse City attorney Jim Olson represents the Anglers group.

"It was obvious from the beginning that a branch of the DEQ and industry had teamed up to do an end-run on permit requirements that protect citizens and our treasured water resources. The court saw right through it," Olson said.

Merit attorney Charles Barbieri said he had not yet read Murphy's ruling and declined to comment.

Gaylord attorney Susan Topp represents nearby riparian landowners who also oppose Merit's plan. She declared the decision a "great victory for the environment."

State officials do not yet know whether they will appeal, said DEQ spokesman Robert McCann.

"Our goal and our concern remains the same: getting this area of contamination cleaned up," McCann said.

A separate lawsuit to prevent the proposed discharge into Kolke Creek also was filed by the conservation group and the landowners. In May 2007, Murphy issued an injunction to stop the work, ruling the state-approved cleanup plan violated riparian property rights and state environmental law.

That case is pending before the Michigan Court of Appeals.