We're back, folks! Our attorneys have just prepared an order for Judge Redford to sign which gives the green light for our hazardous waste citizens suit against the developers who re-fabbed the old Berkey & Gay furniture factory into The Boardwalk (affectionately known by some of its denizens as "Toxic Towers") and just happened to spill 26,000 tons of contaminated waste along the way.
Let's recap what happened over the past few months ...
On October 8th last year, Judge Redford asked us to prepare a new complaint against the defendants that accorded with the rulings that the Michigan Court of Appeals handed down in June. We did that and submitted the new complaint to the judge two weeks later.
The defendants, which included Boardwalk developers 940 Monroe L.L.C. and 900 Monroe L.L.C., lead contractors Pioneer Incorporated and Dykema Excavators Inc., environmental consultant Superior Environmental Corporation, the City of Grand Rapids as the owner of the primary dumpsite, and the financier and owner of the project Fifth Third Bank, then went to court to ask Judge Redford to exclude themselves from our complaint. On December 16th of last year, the judge heard the defendants' arguments and our reasons why the defendants should not be dismissed from the case. Former Michigan Assistant Attorney General Tom Emery appeared on our behalf to review the current environmental law for Judge Redford in light of the Michigan Supreme Court's recent ruling in the Cleveland Cliffs case (PDF file).
The oddest moment in that hearing occurred when Gary Schenk, Dykema Excavators' lawyer, urged the judge to show "courage" and cut corners regarding the law if necessary to immediately dismiss his client from the case.
Judge Redford concluded the hearing by asking each side to produce additional evidence in support of their positions. In response we turned over to the judge, among other things, a DVD of sample clips from our video surveillance tapes which recorded the removal of contaminated soil from the Berkey & Gay project site by Pioneer and Dykema Excavators and the scientific analysis of forensic geologist Robert Hayes who examined all of the soil tests related to our case and confirmed the off-site disposal of the contaminated soil the DVD showed the contractors removing. On January 20th, Judge Redford ruled that our case would go forward.
The only fly in the ointment was that the judge dismissed Fifth Third Bank from the case. He did so primarily because our allegations against Fifth Third Bank identified the bank as conspirator, not a direct participant, in the removal and off-site disposal of the Berkey & Gay's contaminated soil. The judge stated that even if our allegations of conspiracy were viable (which he did not grant), the Michigan Court of Appeals had foreclosed upon the possibility of bringing that particular claim. Fifth Third, however, remains one of the major owners of The Boardwalk as member of 940 Monroe, L.L.C., which is still a defendant in the case.
Discovery will soon begin, so there won't be much to report on this for awhile. However, there's plenty of other stuff going on in River City in the meantime!