City Has Spent $200K Fighting Workers’ Contamination Lawsuit

Thursday, March 1, 2018, 7:33 am
Alice Dreger

Above, left to right: Attorney Neal Wilensky and plaintiffs Kim Hopkins, Ryan Ebbinghaus, Jose Mireles, Allesha Morris, and Troy Williams in 2016.

Results of a Freedom of Information Act filing by ELi show that the City of East Lansing has now spent $200,000 fighting an ongoing lawsuit brought in 2015 by City workers alleging that they “were intentionally and unnecessarily exposed to mercury and asbestos” at East Lansing’s wastewater treatment plant.

Asked whether the City is interested in settling the case, given that the legal costs have already reached $200,000, City Manager George Lahanas tells ELi, “it has been the position of the City of East Lansing from the inception of this case that the proper forum is the State of Michigan Workers’ Compensation Agency and not Ingham County Circuit Court.”

Lahanas adds, “To date, none of the employees who are plaintiffs in this lawsuit have suffered any wage loss or needed medical care as a result of a work-related injury or illness. If and when that happens, the City will address each employee’s case on an individual basis at the Workers’ Compensation Agency.”

The City, through its attorneys, has been trying to have the case against the City dismissed. On February 14, the City made such a request in oral arguments at the Michigan Court of Appeals. That court has not yet ruled on the matter.

Informed of ELi’s finding of the sum spent to fight the lawsuit so far, Neal Wilensky, the attorney representing the workers, expressed shock and then outrage.

“I think it’s sad that they would spend that amount of money fighting their own workers who complained about horrendous actions and decisions that allowed seven years of exposure to asbestos – seven years without protecting, warning, doing anything for these workers,” Wilensky said.

A record of inaction on health and safety issues:

In talking about “seven years of exposure to asbestos,” Wilsensky is referring to the fact that the plant had numerous locations containing friable asbestos, which a 2007 consultants’ report for the City specifically identified as problematic, but which the City did not appropriately label and manage until 2014.

Action on the asbestos problems appears to have finally occurred because of realizations about mishandling of health and environmental concerns following a mercury spill at the plant in November 2013. The spill occurred when a worker improperly handled a mercury-containing device at the plant.

The accidental spill of one to one-and-a-half pounds of mercury was “cleaned up” wrongly by being washed down the plant’s drains, collected with duct tape, and vacuumed up with ordinary shop vacs. For months, the leaking device was left in a tub (shown below) outside a plant building, where it may have caused mercury to leach into the soil near the Red Cedar River.

A special investigation by ELi in 2015 showed a spike in mercury readings in the City’s wastewater in the weeks after the spill. Readings appeared also to show that the plant’s toxic waste control system appropriately pulled at least some of the mercury out of the wastewater, but that the extracted mercury was then later mistakenly landfilled.

Because the spill was not reported to appropriate authorities by plant supervisors and was not investigated for four months, it appears the contamination spread around the plant. It may have even been driven around town in city-owned trucks; when the investigation did finally occur, “loose beads [of mercury were] found on driver’s seat” of one of the City’s trucks. Parts of the contaminated shop vacs were used to blow out heating vents at the Hannah Community Center.

ELi previously reported that, in her deposition for the lawsuit, former plant supervisor Catherine Garnham had been told about the spill but apparently did not act according to regulations.

The asbestos problems at the plant rose to attention only after investigation of the mercury spill revealed the degree to which the plant was out of compliance with health and safety regulations. The 2007 consultant’s report on asbestos at the plant had instructed the City to mark danger zones, provide training, and provide protective gear—to follow health and safety regulations around asbestos—but this does not appear to have happened for seven more years.

Even as legal costs mount for taxpayers, the plaintiffs in this case face an uphill battle:

The workers suing the City in this case have faced high legal hurdles, as we previously reported. In exchange for providing employees monetary assistance and medical care for harms incurred in the workplace, Workers’ Compensation law generally protects employers for being sued. Additionally, governmental units working in governmental activities usually enjoy extra legal protection from lawsuits brought by employees.

In the case, the City has been represented by external legal counsel, Thomas Fleury of Keller Thoma, a specialist in employment law. The City often hires external legal counsel for litigation, but the costs of this lawsuit far exceed what we have found for other lawsuits.

And the case, filed in 2015, is still going on. In October 2016, Judge Clinton Canady declined to dismiss the case against the City. The City then appealed Canady’s decision to the Michigan Court of Appeals.

At the Court of Appeals hearing on the case on February 14, a panel of three judges heard oral arguments in the case. Fleury argued, as he did in Canady’s court, that the City enjoys governmental immunity and that the plaintiffs cannot show “intentional tort” – that the City acted with the intention to harm the plaintiffs.

Below: A plaintiffs' exhibit in the lawsuit, said to show friable asbestos insulation on a plant pipe.

Before Judges Jane Beckering, Mark Cavanagh, and Joel Hoekstra, Wilensky (representing the plaintiffs) countered with the argument that there was intent to harm. His argument went like this: given that plant supervisors had testified they would not have intentionally exposed workers to friable asbestos because they knew that doing so would be dangerous – and given that workers were exposed for the seven-year gap between the report and when the City acted to protect workers – there was, in effect, intent to harm.

MIOSHA and the DEQ found the City in violation of multiple regulations:

The plaintiffs’ argument that the City failed to protect them would seem to be bolstered by two state-level investigations, one by the Michigan Occupational Safety & Health Administration (MIOSHA) and the other by the Michigan Department of Environmental Quality (DEQ).

The DEQ found that the plant “failed to notify the DEQ of a release of hazardous waste on November 22, 2013 [the mercury spill] which could threaten human health or the environment.”

The DEQ also found the City had engaged in seriously improper storage of identified hazardous waste. Some of the mercury had been left in garbage bags, plastic garbage bins, and in one or more dumpsters, including those containers shown below.

Meanwhile, MIOSHA found five “serious” violations, including that the City had “failed to provide…the appropriate asbestos awareness training for all employees engaged in housekeeping areas which contained asbestos-containing materials.” MIOSHA also found that the City had failed to mark areas with asbestos and to warn workers of health risks.

The City was ultimately forced to pay fines in the case.

The suit goes on:

Wilensky is hoping to either settle the case or to have it go to a jury trial. In the meantime, he says, there are “a lot of bad feelings [among the plaintiffs] from learning they’re spending that kind of money to fight their workers, especially when [East Lansing is] in a budget crisis.”

Wilensky declined to answer questions about how much the workers would seek to settle the case. He tells ELi, “They’re looking for a fair resolution to very trying circumstances. They will work with the City if the City is willing to work with them. So far, they have scorned the workers – thumbed their noses at them.”

Lahanas (below) tells ELi that, “The City of East Lansing continues to be a strong advocate for all of its employees. That is why it is necessary that the City ensure that all laws in the State of Michigan regarding governmental immunity and workers’ compensation be accurately followed. Any exceptions to these laws would not benefit any employee or citizen. That is why the City has taken the necessary legal steps to defend this case.”

Under Michigan law, an employee can get money or other benefits from an employer based on a work-related injury or disease by proving that the employer intended to harm the worker. "Intended" is defined as knowing an injury would absolutely occur and "willfully disregarding that knowledge."

ELi asked Lahanas, "How much is the City willing to spend to fight this suit?" He did not respond with a figure, instead reiterating that “the City continues to believe that the Workers’ Compensation Agency is the appropriate forum for the claims presented in the lawsuit.”

Mayor Mark Meadows did not respond for requests for comment on the cost of the lawsuit and whether the City might settle the case.

The Court of Appeals is expected to render a decision in six to eight weeks. That decision will determine whether the case can move forward to a jury trial.


Note: For clarification purposes, after this article was published, the following was added: "Under Michigan law, an employee can get money or other benefits from an employer based on a work-related injury or disease by proving that the employer intended to harm the worker. 'Intended' is defined as knowing an injury would absolutely occur and 'willfully disregarding that knowledge.'"

Related coverage:

Judge Declines to Dismiss Workers’ Suit Against City

City Manager Defends Handling of Asbestos and Mercury Problems

Testimony Shows Attention to Safety Lacking at Wastewater Plant

Plant Superintendent Was Allegedly Told of Mercury Spill

Four Years After Application Submitted, DEQ Reviews EL Wastewater Plant’s Permit

The Mercurial Trail: A Special ELi Investigation