REPORT TO AG: MDEQ COMPROMISED

August 10, 2004

Asst. Atty. Gen. Thomas Piotrowski
Michigan Department of the Attorney General
38980 W. Seven Mile Road
Livonia, Michigan 48152

Re: Formal Request to Re-Open Berkey & Gay Investigation

Dear Mr. Piotrowski:

This letter serves as a formal request on behalf of the Local Area Watch (LAW) to re-open the criminal investigation into the illegal disposal of hazardous waste from the Berkey & Gay construction project site in Grand Rapids, Michigan. The Local Area Watch is a non-profit organization created to monitor environmental and other civil wrongdoing in the Grand Rapids – Kent County area.

The Michigan Department of Environmental Quality’s (MDEQ) malfeasance in failing to properly investigate this case has resulted in the prolonged exposure of toxic chemicals to the environment and to workers and residents of Grand Rapids. The MDEQ based its investigations on fabricated soil tests and false affidavits, while repeatedly ignoring evidence of illegal activity.

Arsenic and lead, among many other highly toxic chemicals, contaminated the soil at the Berkey & Gay site (and now the nearby Monroe Avenue Water Filtration Plant and other dumpsites) at dangerous levels, according the State of Michigan. Exposure to arsenic and lead has serious impacts on human health and the environment. As long as this contamination is not remediated, these chemicals will continue to flow into the atmosphere, the Grand River, and ultimately into Lake Michigan. Arsenic is known to cause several types of cancer and is linked to heart disease, diabetes, and reproductive and developmental harm. Lead can damage almost every organ and system in the human body and is especially damaging to developing children, in whom it causes brain damage.

On February 2, 2004, the MDEQ took soil samples from the Filtration Plant site and compared them to the soil samples from the Berkey & Gay site. The results of these tests confirmed the evidence (listed below) of illegal hauling and dumping by Dykema and Pioneer, the excavating firms. However, the MDEQ still has failed to act. The following review demonstrates that the MDEQ repeatedly used fraudulent information and ignored evidence to exonerate Dykema and Pioneer. That is the basis for our request to re-open the investigation.

Evidence Used: False Statements

Pioneer employee Ward Kortz gave an affidavit dated January 2, 2001 [Attachment A], to the MDEQ that was later proven false. Nonetheless, this affidavit was relied upon by the MDEQ in its investigations. In the affidavit, Kortz denies transporting any soil from Berkey & Gay offsite. This affidavit was later included in a January 2, 2001, report issued by Superior Environmental on behalf of Pioneer and Dykema (which Superior Environmental has recently disavowed – see below). On December 11, 2001, during the MDEQ’s criminal investigation, Kortz admitted to Det. Sgt. Janet Erlandson that at the direction of his supervisor he made false statements on the affidavit he submitted to the MDEQ.

In addition, on November 2 and November 8, 2000, the general manager of Dykema, Dan Schimmel, admitted to two MDEQ officials on separate occasions that all of the soil excavated by Dykema from the Berkey & Gay’s South Yard was dumped at the Filtration Plant, along with other material dumped by Pioneer. [Attachment B.]

Evidence Used: Questionable Soil Tests

On three occasions the MDEQ relied upon clean soil test results to exonerate Pioneer and Dykema even though MDEQ official Bonnie White knew that the tested soils were not representative of the material removed from the Berkey & Gay site by those firms. The first test was conducted on a soil sample Dykema provided on November 3, 2000, from the Berkey & Gay’s South Yard. The purpose of the test was to show that the soil Dykema had excavated from the South Yard and then dumped at the Filtration Plant was clean. To obtain a clean result Dykema directed that the sample be collected from an area of the South Yard that had been recently filled in with clean sand. Photographs presented to White confirm this. [Attachment C.]

The second test was conducted on a pile of clean topsoil Dykema trucked in and deposited on the Berkey & Gay’s North Lot on November 15, 2000. Dykema placed the clean topsoil next to the last pile of contaminated soil and then removed the waste. When Superior Environmental employee Christie Bakos arrived to test the soil Dykema had been removing over the past two days in a final clean-up of the North Lot, Dykema directed her to the topsoil. Of course, it tested clean. Surveillance videotape confirms the swap of soil piles by Dykema. [Attachment D.]

The third test was carried out on December 28, 2001, under the direction of White on a solitary pile of soil located at the Pettis Avenue gravel yard in Ada, Michigan. The purpose of the test was to determine whether or not Pioneer had dumped any contaminated Berkey & Gay soil off-site. The test showed the soil was clean, and the MDEQ’s criminal investigator relied heavily upon this result to exonerate Pioneer and Dykema of any criminal violations of Michigan’s environmental laws. However, White knew from her own investigation that the source of the tested soil was not the Berkey & Gay site but rather a flower garden of a home owned by the Lacks family. [Attachment E.]

Evidence Ignored: Eyewitness Accounts

On September 6, 2000, William Tingley Sr. followed Kortz off-site and observed him dumping Berkey & Gay contaminated soil at the Filtration Plant. On other occasions Tingley Sr. and I had observed evidence of off-site dumping by Kortz. We submitted affidavits to the MDEQ recording this off-site disposal of Berkey & Gay soil at the Filtration Plant and elsewhere on that and other days. [Attachment F.]

Evidence Ignored: Photographic and Videotape Evidence

Security cameras located next-door to the Berkey & Gay site recorded Kortz removing contaminated soil on a daily basis from July to October 2000 and then a final clean-up of the Berkey & Gay’s North Lot by Dykema on November 14 and 15, 2000. Kortz hauled away and dumped offsite approximately 12,000 – 13,000 cubic yards of contaminated soil. Dykema hauled away an additional 500 – 1,000 cubic yards. The MDEQ failed to admit any of this vast photographic and video evidence recording this activity into the case. [Attachment G.]

This evidence is definitive. It records the massive scale of the soil removal operation, including Pioneer’s excavation of contaminated soil from beneath the Berkey & Gay building (which has been clearly established as a source of contamination by tests publicly recorded with the MDEQ), Pioneer’s open storage of the waste on the North Lot, Kortz’s daily removal of the waste to off-site locations, and the replacement of the waste with clean fill. This evidence also establishes that this contaminated soil was not deposited into the Berkey & Gay’s South Yard excavation nor kept anywhere else on-site. [Attachment H.]

Evidence Ignored: MDEQ’s Recent Soil Tests

The MDEQ conducted soil tests on February 2, 2004, at the Filtration Plant. On April 6, 2004, MDEQ statistician Sarah Hession reported that contaminants in the Filtration Plant soil were in lower concentrations than the same ones found in the Berkey & Gay soil (prior to its excavation and off-site disposal). She made no conclusion in the report about the source of the Filtration Plant soil. [Attachment I.]

Nevertheless, on April 30, 2004, in a letter MDEQ Deputy Director Jim Sygo sent to the Attorney General’s office and other state officials [Attachment J], he asserted without foundation that the MDEQ’s scientific analysis “indicate[s] no similarity between the soils [of the Filtration Plant] and the Berkey & Gay site.” Sygo’s letter also referenced his reliance on Superior Environmental’s discredited report (see below). Robert Hayes of Geoforensics Inc., an expert in environmental contamination and a former MDEQ official, made an analysis confirming that the source of the soil samples the Attorney General’s office directed the MDEQ to collect from the Filtration Plant on February 2, 2004, is the Berkey & Gay project site. [Attachment K.]

Evidence Used: Report Disavowed by Superior Environmental in Court

In addition to all of the evidence laid out above, on July 27, 2004, Superior Environmental refused to affirm the validity of its January 2, 2001, report before the Kent County Circuit Court. [Attachment L.] This report included Kortz’s affidavit and test results from soil samples. The MDEQ relied upon this now-discredited information to exonerate Pioneer and Dykema. MDEQ Deputy Director Jim Sygo's letter of April 30, 2004, makes reference to the Superior Environmental report [Attachment M] as a primary reason for dismissing the complaint of illegal off-site dumping.

The MDEQ failed in its duties to protect human health and the environment by violating state law and inadequately carrying out federally requested action. The MDEQ abused its discretion by allowing Dykema and Pioneer to obstruct its investigations with false evidence and then by ignoring genuine evidence of their environmental violations. The MDEQ also failed to follow through on a commitment to the U.S. Environmental Protection Agency (USEPA). After receiving a complaint regarding the MDEQ’s inaction, the USEPA informed the MDEQ on November 2, 2000, that it would take over the investigation if the MDEQ did not act. The MDEQ assured the USEPA that it would investigate, but the investigation that followed was highly flawed and inadequate.

To compound matters, the MDEQ’s exoneration of Dykema and Pioneer in the face of clear evidence of violations of state environmental laws has been used by the agency and other involved parties to discredit cases brought in the Kent County Circuit Court, the U.S. District Court, and the U.S. Sixth Circuit Court of Appeals, and to the U.S. Attorney and other law enforcement agencies.

The MDEQ must be held accountable for the protection of public health and the environment in Grand Rapids and to prevent future delinquent behavior by parties attempting to skirt important environmental laws across the state. In this instance, the MDEQ let Grand Rapids residents down and unnecessarily left them exposed to poisonous materials.

We request a meeting at your earliest convenience to discuss the re-opening the state’s criminal investigation of the Berkey & Gay matter and the misconduct of the Michigan Department of Environmental Quality.

Sincerely,

Wm Q. Tingley III
Executive Director

cc: Gov. Jennifer Granholm
Attorney General Michael Cox
MDEQ Director Stephen Chester
Eric Cohen, USEPA Region 5
David Talliaferro, USEPA Region 5

LIST OF ATTACHMENTS

Attachment A: Two affidavits signed by Ward A. Kortz dated 1/2/01. Kortz denies transporting any soil away from the Berkey & Gay site other than a single error, which he claims to have corrected.

Attachment B: Excerpt for the chronology of the MDEQ’s investigation compiled by Bonnie White on 3/2/01. The last entry for 11/2/00 shows a meeting between Gerry Heyt and Dan Schimmel, the general manager for Dykema Excavators. At that meeting Schimmel’s admits that Dykema Excavators dumped the South Yard soils at the Filtration Plant.

MDEQ Activity Report dated 11/8/00 prepared by Bonnie White. The report records a meeting between the MDEQ and representatives of Pioneer and Dykema Excavators. At that meeting these representatives of Pioneer and Dykema Excavators confirm that soil excavated from the South Yard remains at the Filtration Plant.

Attachment C: MDEQ Activity Report dated 10/19/00 prepared by Bonnie White. The report records White’s inspection of the Berkey & Gay site. Photographs she had taken of the site are attached, which show that the South Yard excavation was filled with clean sand at that time.

Letter from Prein & Newhof to Attorney Gary Schenk dated 11/6/00 (second and third pages are missing). Prein & Newhof states that Dykema Excavators excavated the South Yard down to bedrock, which indicates that some of the soil removed by Dykema Excavators was contaminated “urban fill”.

Letter from Prein & Newhof to Schenk dated 11/13/00. Prein & Newhof reports that it had tested a sample of soil collected from the South Yard (on about 11/3/00) and found it was clean. It reports that this soil was clean fill used to fill the area – not urban fill.

Letter from Prein & Newhof to Schenk dated 12/1/00. Prein & Newhof represents that the soil sample it had tested was typical of the soil Dykema Excavators removed from the South Yard. The letter includes an annotated aerial photograph identifying the location of the soil sample as “SS-1”.

A series of photographs taken by William Q. Tingley III on 10/23/00 and 10/27/00 of the South Yard and the rest of the Berkey & Gay site. The photographs of the western end of the South Yard show that the Prein & Newhof soil sample (taken at a depth of only two feet) was collected from an area that had been a ramp into the South Yard excavation and had been recently filled with clean sand. Therefore, the tested soil was not original to the site, but new material brought in by Dykema Excavators.

Attachment D: Affidavit of Christine Bakos dated 12/27/00. Bakos states that she relied upon the representation of Dykema Excavators that the soil she tested was typical of the material Dykema Excavators had removed from the North Lot on 11/14/00 and 11/15/00.

Letter from Frank Marshall to Bonnie White dated 11/17/00. Marshall’s reports a different disposition for the soil Bakos had tested. Instead of removal off-site, he claims that on November 17, 2000, Pioneer dumped all of it around the exterior of the footings of the parking ramp under construction in the South Yard. The photographs of Attachment C show that this was impossible, because the exterior of the parking ramp foundation had already been filled in with clean sand.

Attachment E: Case Closure Report dated 3/22/02 prepared by Det. Sgt. Janet Erlandson. Based upon a soil test directed by Bonnie White, Erlandson concludes that the charges against Dykema Excavators and Pioneer are unfounded. This test was taken a pile of soil at the Pettis Avenue gravel yard that White had identified as suspect. Erlandson describes the test on pages 5 and 6 and summarizes it on pages 7 and 8 of her report.

Excerpt for the chronology of the MDEQ’s investigation compiled by Bonnie White on 3/2/01. The last entry for 10/19/00 shows that White had learned that the pile of soil she directed Erlandson a year later had come from a flower bed of a home owned by the Lacks family. Therefore, she knew that the soil had no relationship to the Berkey & Gay site. Nevertheless, Erlandson relied upon the results of this irrelevant test to exonerate Dykema Excavators and Pioneer.

Attachment F: Affidavit of William Q. Tingley dated 10/29/01. Tingley attests to the soil removal activities of Pioneer and Dykema Excavators at both the Berkey & Gay and Filtration Plant sites and to his videotape record of these activities.

Affidavit of William Q. Tingley III dated 10/29/01. Tingley III attests to the soil removal activities of Pioneer and Dykema Excavators at both the Berkey & Gay and Filtration Plant sites and to his photographic record of these activities.

Attachment G: MDEQ Evidence List dated 3/27/02. This list identifies the evidence Erlandson relied upon to exonerate Pioneer and Dykema Excavators. Missing from this list are: Tingley’s videotape evidence (see Attachment F); Tingley III’s photographs of 10/23/00 and 10/27/00 of the South Yard (see Attachment C) and the ones of 11/14/00 of the North Lot; and Kortz’s admission to making false statements. All of this excluded evidence was in the possession of Erlandson and the MDEQ.

Attachment H: Report on soil removal activities at the Berkey & Gay site dated 6/30/04 and prepared by forensic geologist Robert A. Hayes. In this report, Hayes establishes that the Pioneer and Dykema Excavators unlawfully removed a massive amount of contaminated soil from the Berkey & Gay site.

Attachment I: MDEQ report statistically comparing soil samples from the Filtration Plant and the Berkey & Gay, dated 4/6/04 and prepared by MDEQ statistician Sarah L. Hession. Hession states that the contaminants in the Filtration Plant samples are in lower concentrations than in the Berkey & Gay samples. Significantly, Hession draws no conclusion as to the source of the Filtration Plant soil.

Attachment J: Letter from MDEQ Deputy Director Jim Sygo to William Q. Tingley III dated 4/30/04. Sygo, without foundation (see Attachment I), claims that the source of the Filtration Plant is not the Berkey & Gay site. He further states that this conclusion is consistent with “sworn statements, mass balance calculations, and contractor documentation” – i.e., the Superior Environmental report (see Attachment M) – which Superior Environmental has recently disavowed in Kent County Circuit Court (see Attachment L).

Attachment K: Report on the Filtration Plant soil test results dated 8/10/04 and prepared by forensic geologist Robert A. Hayes. In this report, Hayes establishes that the Filtration Plant soil tests examined by Sarah Hession (see Attachment I) show that soil originated from the Berkey & Gay site.

Attachment L: Superior Environmental’s Answer and Affirmative Defenses to the Tingley v. Kortz et al. complaint dated 7/27/04. Paragraph 50 of the complaint states: “[Attachment M] is a true copy of a report dated 1/2/01, which Superior Environmental prepared for the MDEQ. This exhibit confirms that the Defendants did not have any records documenting the disposal of Berkey & Gay contaminated soil at any properly licensed landfill or disposal facility.”

Superior Environmental filed the following response to the Kent County Circuit Court: “Defendant Superior Environmental Corp. neither admits nor denies the allegations contained in paragraph 50 since the referenced document speaks for itself. To the extent that a response is required, Defendant Superior Environment Corp. is without sufficient information or knowledge to form a belief as to the truth of the allegations contained in paragraph 50 and leaves Plaintiff to his proofs.” [Emphasis added.] Thus, Superior Environmental now refuses to confirm the validity of the representations it made in its 1/2/01, report to the MDEQ, which Deputy Director Sygo relies upon to exonerate Pioneer and Dykema Excavators (see Attachment J).

Attachment M: Report dated 1/2/01 prepared by Frank Marshall of Superior Environmental. In this report, Marshall purportedly accounts for all soil excavated at the Berkey & Gay site by Pioneer and Dykema Excavators to prove that no contaminated material was dumped off-site. To substantiate this account, he uses false affidavits (see Attachment A) and test results (see Attachments D and E). On 7/27/04 Superior Environmental disavowed the validity of this report before the Kent County Circuit Court (see Attachment L).

Comments

[Rachel Zalokar]

I've been looking for more info. on the dumping of contaminated soil onto the grounds of the old waste water treatment plant on Monroe St. in Gand Rapids. I can see the waste water treatment plant from the windows of my home on Page st. NE. I have a six month old son, we moved to this location in August when he was two months old. So needless to say I am extremely concerned about what sort of health risks this may pose for my family and neighbors. My neighborhood is full of young children. WHAT CAN WE DO!? Has there been any effort on the part of the city or those responsible for the contamination to "clean up" their mess. Is it even possible to undo what they've done.Can somebody send me some info. on the contamination. I don't have an internet at my residence,maybe someone could mail me some info.I don't believe the surounding community even is aware of any of this. If I had some info. I could go door to door and educate my neighbors of the health risks and pass out flyers so they would have the facts in writing. From there I would be willing to get a petition going with signatures of my neighbors in order to somehow right this wrong. If anything can even be done. My address is 29 Page NE,Grand Rapids, MI 49505, Or call me at 616-458-6737. On behalf of my family and all the families in the neighborhood, thanks for taking the time to read and respond to my request.

[The Executive Director]

Thanks, Rachel, for your interest and offer of help. Our office manager Mary has mailed to you the information you requested. Keep checking in, and tell you friends and neighbors about us.

Bill