Stunning ...
The Marshall Report, the entire foundation for the MDEQ's exoneration of the Berkey & Gay developers from any wrongdoing, has now been disavowed by the company that produced it.
In pleadings Superior Environmental Corporation filed yesterday in Kent County Circuit Court in response to the hazardous waste complaints that the Michigan Court of Appeals re-instated last month, that company explicitly refused to affirm the validity of the Marshall Report. Superior Environmental produced the Marshall Report on behalf of the Berkey & Gay developers in January 2001.
The purpose of the report was to substantiate the alibis the developers had given to the MDEQ to explain the movement of contamination soil at the Berkey & Gay site during its redevelopment into The Boardwalk. The Marshall Report included false affidavits and fabricate test results as corroboration of the developers' alibis. However, videotape, photographic, and other hard evidence had shown the Marshall Report was nothing but a tissue of falsehoods.
Thus, Superior Environmental disavowed it now that it had to, for the first time, account for the Marshall Report in a court of law. This should help pull down the MDEQ's stonewall around this matter, which had relied upon the Marshall Report as recently as this April of this year as a reason to not hold the Berkey & Gay developers accountable for their dumping of hazardous waste at the Monroe Avenue Water Filtration Plant and other locations in the Grand Rapids vicinity.
Why did Superior produce a false report in the first place? Because Superior has now issued a mea culpa, does that exonerate them for their earlier acts? Did others rely on their false report? Do they have liability now? Are they claiming that they were lied to? Were they negligent? Were they paid off? Were they a partner in the venture, thus with a potential conflict of interest? I am sure they have a large professional errors and omissions policy which might come in to play in this matter.
Posted by: Dave VerSluis | September 07, 2005 at 11:46 AM
Hi, Dave.
Q: Why did Superior produce a false report in the first place?
A: Because the Superior consultant who did the original Phase I and Phase II ESA's for the Boardwalk project mischaracterized the soil's contamination to reduce the remediation needed in response to it. When the MDEQ investigated the Boardwalk site a year later, they demanded evidence supporting the conclusions of the original ESA's. So Superior drafted a report based upon false affidavits and phony test results to comply with the MDEQ.
Q: Because Superior has now issued a mea culpa, does that exonerate them for their earlier acts?
A: Superior hasn't exactly taken responsibility for the false report to the MDEQ. They have said that do not affirm the truthfulness of the report. Even so, this does not relieve of liability for making false statements, which can be construed as a criminal act under Part 201 of the Michigan's Natural Resources and Environmental Protection Act.
Q: Did others rely on their false report?
A: Yes, the MDEQ relied upon the report's evidence as being legit to exonerate Superior and the Boardwalk developers. However, the MDEQ did so in the face of damning evidence against them, including videotapes, photographs, soil tests, and the admission of one employee that his affidavit was false. So you have to question the integrity of the MDEQ.
Q: Do they have liability now?
A: Yes. Superior is a defendant in the hazardous waste lawsuit we filed against them and the developers in Kent County Circuit Court.
Q: Are they claiming that they were lied to? Were they negligent? Were they paid off? Were they a partner in the venture, thus with a potential conflict of interest?
A: The lawsuit against Superior has not progressed far enough to get answers to these questions. I have my suspicions. We'll have to see if they are confirmed.
Q: I am sure they have a large professional errors and omissions policy which might come in to play in this matter.
A: No doubt. Whatever it takes to clean up the mess they helped to create.
Regards,
Bill
Posted by: The Executive Director | September 07, 2005 at 03:47 PM