© Kim Stringer

Tom Foley vs. JCI

Contamination stalls a Saline condo

by David Stringer

posted 1/8/2013

Between 1944 and 1984, the Universal Die Casting factory occupied twelve acres of property on Monroe Street just south of downtown Saline. Built around the former Saline Creamery, it manufactured and electroplated die-cast zinc auto parts. At its peak in the 1950s and 1960s, it employed about 300 people--and dumped its waste, including arsenic, strychnine, vinyl chloride, and PCBs, into the Saline River.

Universal Die Casting merged with Ann Arbor-based Hoover Universal, which in turn was acquired by Johnson Controls, Inc., out of Milwaukee. After closing the plant, JCI leased the site for automobile parts storage. Then, in 2006, it was purchased by Saline River Properties. Led by local businessman Tom Foley, the group planned to build a luxury condominium community adjoining the scenic river.

The problem was and is the contamination. In 2003, JCI signed a consent agreement with the EPA, agreeing to make sure that contaminants didn't spread beyond the site. The agreement includes a "cleaning protocol"--a checklist of cleanup criteria, with fines for failure to meet the schedule. But exactly what the agreement required the company to do grew muddy after Foley purchased the property and demolished the old factory buildings. The rubble, which he'd plan to recycle during construction, is still visible from Monroe Street.

In September 2008 the promotional website concentratemedia.com wrote that "cleanup has begun on the contaminated site for The Banks of Saline," adding, "So far more than 225 dump truckloads of toxic soil have been removed." The article quoted Foley as saying, "We are in the process of going forward with utilizing $1 million in brownfield tax credits." While this appeared to be progress, JCI later argued in court that by removing the concrete slabs beneath the buildings, Foley released additional contaminants, making monitoring and cleanup significantly more expensive.

The litigation started when Foley sued Johnson Controls, seeking to take over enforcement of its consent agreement with the EPA. The company counter-sued, arguing that his removal of the slab

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jeopardized their containment effort. Foley lost his case--largely, the court stated, because the obligations imposed by the consent agreement were "unclear (i.e., ambiguous)," and because the expert hired by Johnson Controls was more persuasive and experienced than the expert hired by Foley. In the counter-suit, the court concluded that JCI had "not met its burden of establishing that a 'release' or 'threat of release' of contaminants will cause JCI to incur future response costs"--though it did hold Foley responsible for $1,200 for additional monitoring.

Foley argues that the whole issue of the slab is a "red herring," since the tests found no release of contaminants. He's appealing the decision and argues that the company has both a legal and a moral obligation to clean the site: "I didn't put that crap there," he says. "If I had done the damage, the judge would have hammered me for it."

Foley has kept the Banks of Saline website online, featuring river-themed floor plans that include the "Huron," "Manistee," and "Au Sable." But between the litigation and the real estate bust, nothing has moved forward since 2008.

Foley speculates that a compromise of some sort will eventually be reached. But meanwhile, the parcel of land sits vacant, an ugly and contaminated blister.   

[Originally published in January, 2013.]

 

 

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