Leandre Gholston v. Scott Sherrill

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS LEANDRE GHOLSTON and THERESA FOR PUBLICATION GHOLSTON, June 10, 2025 9:38 AM Plaintiffs-Appellants, v No. 367226 Wayne Circuit Court SCOTT SHERRILL and DANNY SHERRILL, LC No. 22-007977-CH Defendants-Appellees. Before: M. J. KELLY, P.J., and SWARTZLE and ACKERMAN, JJ. SWARTZLE, J. Is known contaminated groundwater itself an “environmental hazard” to be disclosed under Michigan’s seller disclosure act? As explained, the answer is yes, even when, as here, there is no known associated contamination of the soil or vapor intrusion in the home. In concluding otherwise, the trial court erred in granting summary disposition to defendants, and we reverse. I. BACKGROUND A. TCE CONTAMINATION Defendants sold their home to plaintiffs. The property is located near a former site of a General Motors Corporation (GM) manufacturing plant. During the plant’s operation, GM released solvents into the soil and groundwater, and years later, trichloroethylene (TCE) was found in the surrounding groundwater. TCE is a carcinogen, and human exposure typically occurs by drinking contaminated water or breathing contaminated air. TCE in groundwater can migrate to the adjacent soil and, by a mechanism called “vapor intrusion,” the substance can enter homes through openings in the floor and walls. The City of Livonia supplies water to the subject home, so it is unlikely that any human exposure to TCE would occur there as a result of consuming contaminated groundwater. Rather, the primary vector would be through migration into the soil and home. In 2011, GM transferred the industrial property to the Revitalizing Auto Communities Environmental Response (RACER) Trust to “remediate contamination and prepare the property -1- for beneficial reuse.” That same year, the federal Environmental Protection Agency (EPA) requested that RACER test the soil and homes in the surrounding area for contamination. RACER did not detect TCE vapor in any homes, but it did detect high levels of TCE in the soil under one home. RACER installed a vapor-mitigation system in that home. The following year, the Michigan Department of Community Health cautioned that “continued monitoring of groundwater and soil vapor” in the area was necessary for public health. In 2016, RACER detected high levels of TCE in groundwater samples under the street of the home at issue here. Soil-vapor test results remained below EPA recommended levels, but EPA guidance suggested “ongoing sampling even when the soil vapor concentrations are low if TCE is present in groundwater above the [vapor-intrusion] screening level.” This guidance was consistent with RACER practice: “Because subsurface conditions can change seasonally and yearly, ongoing sampling is conducted to ensure that [vapor-intrusion] conditions will not pose a potential unsafe exposure to TCE in the indoor air of homes.” RACER conducted more sampling the following year and installed additional monitoring wells. The sampling found TCE above EPA recommended levels in the soil of one property (not the property at issue here), and RACER accordingly installed a mitigation system on that property. Monitoring in the area continued in subsequent years, with groundwater samples continuing to be above EPA recommended levels, but soil-vapor samples below the agency’s recommended levels. RACER has funding through 2036 to continue monitoring and, when necessary, installing and maintaining mitigation systems. B. SALE OF THE SUBJECT HOME Defendants had owned and lived in the home since 2003. As a result of the contaminated groundwater, RACER installed TCE monitoring wells in the rear of the subject property. Grant Trigger, a cleanup manager with RACER, sent defendants a letter in October 2013, stating in relevant part, “TCE, and other chemical vapors related to TCE, were not detected in your home from the groundwater plume even though TCE and some TCE-related chemical vapors were detected in the ground near your home. Therefore vapor intrusion of TCE and related chemicals is not occurring at your home under current conditions.” Defendants dispute that they received this letter. In preparing to sell their home, defendan