The trust responsible for cleaning up a contaminated property near Zionsville and its contracted environmental remediation firm are in a $3 million legal battle over the site’s condition.
The Third Site Trust Fund contracted Calgary, Alberta-based McMillan-McGee Corp. in October 2016 to design, install, operate and maintain an electrical resistance heating system at a two-acre Superfund site at 985 South U.S. 421 (Michigan Road), north of Zionsville and south of State Road 32.
The system, installed 40 feet deep, was expected to vaporize 90% of the contaminants that Envirochem Corp. storage containers leaked into the site from 1977 to 1982. The facility received wastes such as resins, paint sludges, waste oils and flammable solvents and stored them in drums and storage tanks.
Testing conducted in January 2019 found contaminant levels in the target area were higher than what was outlined in the trust’s contract with McMillan-McGee Corp., also known as Mc2.
Now, both parties are seeking more than $3 million from one another.
“The background is very simple,” said Norm Bernstein, a trustee and member of New York-based N.W. Bernstein & Associates. “McMillan McGee was terminated for cause on June 1 of this year. I’m reluctant to comment further because this matter is in litigation.”
Bernstein provided the IBJ with the notice of termination, which states Mc2 failed to meet the remediation threshold and made matters worse by furthering the contaminants’ spread. Third Site Trust Fund is now requesting Mc2 pay more than $3.5 million in damages so the trust may finish environmental work at the site.
Brent Winder, vice president of Mc2, also declined to comment on the matter because of the lawsuits.
Mc2 filed a complaint in the Southern District of Indiana court on July 8 to argue that testing showed contaminant levels above the agreed upon thresholds because contaminants from outside the target remediation area leached into the soil. The company claims Third Site breached its contract by failing to properly define the contamination zone and for refusing to allow Mc2 to address contamination outside of the target area.
“[A] recontamination or rebounding effect may occur as a result of mass flux from outlying contaminated areas. In order to properly remediate an area using thermal remediation, it is imperative that the area be properly delineated,” Mc2 said in court documents.
In late 2019, Mc2 claims to have told the trust about a potential mass contamination outside of the treatment area. In response, the company says the trust declared it was defaulting under the contract and requested millions of dollars be repaid.
Mc2 allegedly submitted several sampling plans meant to determine the location of that leaching contamination that were ultimately rejected by the trust. Instead, Third Site retained geotechnical consultants Ramboll Environ and Geosyntec Consultants International Inc. to provide sampling plans instead.
After establishing an access agreement, Mc2 claims to have found contaminants below the target area and determined that the desired remediation could not be achieved.
Mc2 claims the trust hired security to prevent it from recovering its materials and machinery from the property. Therefore, Mc2 is seeking the return of its possessions and more than $3 million in damages for civil and criminal conversion.
“As a result of its malicious, fraudulent, and oppressive behavior and actions, the Trust should be punished and subjected to punitive damages for the purpose of preventing it and others situated from engaging in the same or similar conduct in the future,” Mc2 said in its filing.