SUPERIOR ENVIRONMENTAL Q & A

Last week reader Dave VerSluis had some questions about the fraudulent Marshall Report that state-contractor and Toxic Towers defendant Superior Environmental Corporation submitted to the Michigan Department of Environmental to get that agency off the trail of contractors Pioneer Incorporated and Dykema Excavators Inc., who had illegally dumped 26,000 tons of hazardous waste at the Monroe Avenue Water Filtration Plant and elsewhere in northeast Grand Rapids.

Dave's questions were in response to the article reprinted immediately below, first run on July 24, 2004.  Our Q&A follows the article.

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.

Dave: Why did Superior produce a false report [i.e., the Marshall Report] in the first place?

Your Executive Director: Because the Superior consultant who did the original Phase I and Phase II ESA's [environmental site assessments] 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.

Dave: Because Superior has now issued a mea culpa, does that exonerate them for their earlier acts?

Your Executive Director: Superior hasn't exactly taken responsibility for the false statements in the Marshall Report. They have said to the court that they no longer affirm the truthfulness of the report. Even so, this does not relieve Superior 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.

Dave: Did others rely on their false report?

Your Executive Director: Yes, to the public's detriment. 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 Superior and its cohorts, including videotapes, photographs, soil tests, and the admission of one employee that his affidavit was false. So you have to question the MDEQ's reliance upon the Marshall Report when it had so much evidence showing it was false. However, that doesn't excuse Superior for producing a false report in the first place.

Dave: Do they have liability now?

Your Executive Director: Yes. Superior is a defendant in the hazardous waste lawsuit we filed against them and the developers in Kent County Circuit Court.

Dave: 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?

Your Executive Director: The lawsuit against Superior has not progressed far enough to get know what defense Superior will put up. I have my suspicions. There does appear to be a pay-off that might include big contracts with the state. We'll have to see if they are confirmed.

Dave: I am sure they have a large professional errors and omissions policy which might come in to play in this matter.

Your Executive Director: No doubt. Whatever it takes to clean up the mess Superior helped to create.

Comments

[Dave VerSluis]

I would also ask or wonder if Superior's E&O insurance will actually pay if the court determines that they knowingly put themselves (and their policy) at risk. Some policies have an exclusion that if a non-lawful act is made by the policy holder then the insurance company does not have to pay! Which, if that is the case, then Superior will have to pay out of their own pocket or go bankrupt if they get a large enough judgment against them.

[The Executive Director]

Good point, Dave. You're right that errors & omissions policies usually don't cover fraudulent acts. We'll see.

Regards,
Bill

[enviro.info]

What's the latest on this? Is Superior still doing work for the State and those banks? Is the A/G's office looking at this too?

[The Executive Director]

Enviro,

Thanks for your interest in this ongoing story.

Yes, Superior Environmental still has its contracts with the state. I have asked the Michigan auditor general to review the matter. Also, we are working with the MDEQ to get action the overall problem of the illegal dumping.

Meanwhile, we have our hazardous waste complaint against Superior Environmental, the Boardwalk developers, and the City of Grand Rapids pending in Kent County Circuit Court.

Progress is slow as molasses, but there is progress.

Regards,
Bill Tingley
Executive Director