DUMP TRUCKS, TOXIC WASTE, AND CASH FOR MICHIGAN

I’m sure the current fiscal crisis in Lansing is no surprise to L.A.W. readers. 

Those of you who enjoy surfing the net and political websites know full well that postings are stacked high these days with nothing but the news about the budget shortfall, the looming fiscal crisis, and the hue and cry for spending cuts and tax increases.

Websites like RightMichigan.com and MichganLiberal.com have had a number of articles and reader comments in recent weeks on this topic like:  Overlooked health insurance premiums due the state government, wasted tax dollars on subsidies to favored businesses, reform of the bidding process for state health care and pension programs to reduce administration costs, uncollected taxes owed to the state, the “hands off” attitude toward bloated public school and university costs, replacement of the notorious SBT with a new business tax, and the governor’s “two penny” sales tax on services.

All these avenues seek to either cut spending or increase revenues by the millions needed to balance the state budget and none seem to be getting any traction.  With this in mind, now is a good time to remind our readers that the budget shortfall could be remedy in one way – a way that spares the citizens and businesses of this state from additional taxes and spending cuts.

How you might ask?

Collecting as much as $50 BILLION in fines from well-heeled violators of our environmental protection laws.

As some of you know, we at The Local Area Watch reported to the Michigan Department of Environmental Quality, the Michigan Attorney General’s office, then-U.S. Attorney Margaret Chiara, Governor Granholm, and other state officials about how the developers of the Boardwalk project – the renovation of the old Berkey & Gay furniture factory north of downtown Grand Rapids into apartments and commercial offices – excavated and dumped 26,000 tons of hazardous in a nearby residential neighborhood.  Let recap this for our new readers or those who may have missed our series of articles on this subject.

What is the “Toxic Towers” story?

The old Berkey & Gay furniture factory located on the Grand River was built atop urban fill used to fill in the old canal and build up the riverbank to promote development north of downtown in the late nineteenth century.  Urban fill included industrial wastes such as fly ash, cinders, and other debris that is typically contaminated with high levels of arsenic, lead, and mercury.  In addition to this, the Berkey & Gay factory was a center of manufacturing activity for over a century.

Chemical wastes from furniture-making, painting, finishing, and plating operations were routinely dumped in the courtyards the old factory encompassed.  The Berkey & Gay site was also bounded by a railroad corridor, a notorious source of petro-chemicals.  All of these recognized environmental hazards combined to pollute the Berkey & Gay's soil with two dozen hazardous substances in toxic concentrations, which made its soil and groundwater hazardous wastes. Because of this, we now refer to this site as “Toxic Towers”.

What is the evidence that these hazardous substances were in the soil?

In November 1999 the Boardwalk developers hired Superior Environmental Corporation to conduct a series of environmental tests of the Berkey & Gay site. Superior Environmental collected soil and groundwater samples from twenty-four different locations for laboratory testing.  The results showed that almost all of the samples contained toxic concentrations of hazardous substances.  Superior Environmental reported these results to the developers in December 1999 and also filed them with MDEQ in February 2000.  Consequently the State of Michigan registered the Berkey & Gay site as an environmentally contaminated "facility" subject to regulation under Part 201 of the Natural Resources and Environmental Protection Act.  This law required the Boardwalk developers to:  [1] Establish strict procedures to prevent human and environmental contact with the site’s hazardous waste – i.e., contaminated soil and groundwater, [2] implement those procedures and keep records of compliance, and [3] report any releases or off-site movement of this waste to the MDEQ.

What does "toxic concentration" mean?

For the most part it means a hazardous substance is present at a level (established by the State of Michigan) that puts a person's life or health at risk if he is in sustained direct contact with its medium - in this case, soil.  It can also mean that the hazardous substance level exceeds safe drinking water or ambient air standards set by the state.

Who are the Boardwalk developers?

Fifth Third Bank, National City Community Development Corporation, Pioneer Incorporated, the owners of Dykema Excavators Inc., and several prominent businessmen in the area.  Plus, Spectrum Health Corporation’s training consortium, GRMERC, was recruited as the anchor tenant for the project (i.e., the milch cow to make the big tent payments to cover the oversized loan the developers received for the project).  Furthermore, then-Mayor John Logie set the City of Grand Rapids in motion to render the project material assistance, such as selling to Dykema Excavators the nearby North Monroe water filtration plant to use as dump for the Berkey & Gay site’s hazardous waste.  (Make what you will of the fact that Logie was a senior partner at the law firm of Warner Norcross & Judd and that Fifth Third and Spectrum Health were the firm’s two biggest clients.)

What did the developers do wrong?

Some readers mindful of the excesses of some of our environmental laws may ask,“Who cares if some dirty soil was dug out of one hole dumped into another nearby hole?”  Where’s the harm?

Valid questions.  It must kept in mind just how polluted the Berkey & Gay’s soil was.  It was so severely contaminated that poisonous vapors would gas out of the soil once it was exposed to the air.  The MDEQ warned the Boardwalk developers that this danger was so severe that construction workers needed to wear gas masks and anti-exposure suits when excavating this material.  And that was the hazard posed by just one of the two dozen toxic chemicals and heavy metals that contaminated all of the Berkey & Gay’s soil.

Despite the danger, the MDEQ left it to the developers as to the best way to handle this material, so long as it was done responsibly.  As a practical matter this left the Boardwalk developers with two options:  [1] Do not disturb the contaminated soil and encapsulate it to contain its toxicity and prevent contact with human beings and the surrounding environment, or [2] remove it for off-site disposal at a certified landfill with strict controls protecting workers during excavation and transport and preventing release of the hazardous waste into the environment at any point along the way.

Because the project needed a parking ramp and because GRMERC wanted a new full-height basement level added to the renovated factory, the Boardwalk developers decided to excavate the ENTIRE Berkey & Gay site and dump the excavated waste off-site.  However, they wanted to do it on the cheap, so they implemented no controls to protect workers or release of the waste into the surrounding environment.  In doing so, they exposed hundreds of people of toxic concentrations of arsenic, lead, mercury, PNA’s, VOC’s, and other industrial metals and chemicals.  Plus they spread this hazardous waste into the Grand River watershed, into the city stormwater sewer system, onto the public streets in the Leonard-Monroe area, onto the grounds of the old water filtration plant (without any containment preventing migration into the groundwater) which is next-door to a residential neighborhood.

To date, neither Boardwalk developers nor the state government have notified anyone of their exposure to these hazardous substances and none of this waste has been cleaned up.

How did the Boardwalk developers get away with this?

Simple.  They lied to the MDEQ when it investigated allegations of illegal dumping.

The developers’ environmental consultant, Superior Environmental, put together a report claiming that no contaminated soil had been removed from the Berkey & Gay site or even permanently displaced on-site.  The report was supported by false affidavits and faked soil tests.  Relying upon the integrity of the developers, the MDEQ accepted the report as truthful and exonerated them of any wrongdoing. 

Furthermore, attorneys for some of the Boardwalk developers, including Fifth Third Bank and Dykema Excavators, corroborated the Superior Environmental report by filing knowingly false statements of facts in federal court that denied any removal of soil (dirty, clean, or otherwise) from the Berkey & Gay site.

How do we know the Boardwalk developers obstructed the MDEQ’s investigation?

[1] Several weeks of surveillance videotape recording the excavation of contaminated soil from the Berkey & Gay site by Pioneer Inc. and hundreds of off-site transports of this waste by Pioneer Inc. and Dykema Excavators.

[2] Photographic and videotape evidence of Dykema Excavators faking two soil tests at the Berkey & Gay site (by directing the samples to be collected from newly deposited clean fill).

[3] Eyewitness reports of Pioneer dumping and burying this waste at the water filtration plant, later confirmed by soil samples collected by the MDEQ and analyzed by a forensic geologist.

[4] Admissions by Dykema Excavators general manager Dan Schimmel, recorded in MDEQ records, that the company had dumped soil excavated from the Berkey & Gay site at the water filtration plant.

[5] Superior Environmental’s disavowal in a statement to the Kent County Circuit Court of the truthfulness of the report it had submitted to the MDEQ.

What is the consequence of these violations of the environmental laws?

Under Part 201 of the Natural Resources and Environmental Protection Act alone, the Boardwalk developers and their cohorts are subject to fines of $25,000 to $27,500 a day for EVERY day they failed to report a release of hazardous waste.

Every time a Pioneer dump truck hauled a load of contaminated soil off-site for dumping at the water filtration plant (and other locations northeast of G.R.), they were in violation of this act.  Eight hundred truckloads unreported by the Boardwalk developers for six-and-a-half years now totals more than $47 BILLION IN POTENTIAL FINES now – and that’s just one type of the many violations they committed. 

Such a sum would cover the state’s budget deficit for the next decade or two, and the violators include big corporations like Fifth Third and National City.

What is being done to hold the Boardwalk developers accountable?

The Local Area Watch has pursued the developers and their allies in the Michigan and federal courts for five years now to collect these fines.  It's been a tough haul.  The knowingly false statements that the lawyers for Fifth Third and Dykema Excavators filed in the U.S. Sixth Circuit Court of Appeals unfortunately were effectively in ending the federal lawsuit, although evidence made available since then proving that these statements were false may change matters. 

The state lawsuit is pending before the Michigan Supreme Court (for the second time) after a bizarre and tortuous history up and down the entire court system (three times before the Michigan Court of Appeals alone) with split decisions and dissents throughout the process.

The whole issue presently hangs on whether or not we have standing, and the only judge to review all of   the evidence we collected of the Boardwalk developers’ violations said we do.  So fear not, L.A.W. readers, we’ll soldier on (especially after being inspired by the story of William Wilberforce in the movie Amazing Grace).

Meanwhile, keep your fingers crossed and hope justice prevails.  Maybe just maybe, the system will work.  The bad guys will pay what they owe, those exposed will get the proper notice, the contamination will get cleaned up, and we won’t have to worry about state budget deficits for awhile.

Signed,

Bridget Dupont-Tingley, Editor L.A.W.

Comments

[TRex]

This article brings a good question to mind:

Which city seems to care more for it's worker's health, resident safety and local environment (water, air & soil)- Kalamazoo or Grand Rapids?

If you judge it based upon the local response to toxic waste issues, Kalamazoo is the clear winner. Grand Rapids doesn't seem to even show up to the race.

Kalamazoo had a very public battle recently over PROPOSED dumping of PCB contaminated waste into a local landfill. Residents of that city would have no part of such activity. They rallied in large numbers to get the attention of the city and state officials and prevented such dumping from happening in their back yards. This city showed that protests by the average resident can work. They stood up and made a difference in their community. They even got local media t.v. stations and newspapers to run story after story on their battle.

Interesting how in Grand Rapids the opposite happened at the Berkey building.

Not only did no one locally stand up (few could seeing the list of guilty cuplrits involved in the case, city officials, local businesses, banks, lawyers and such) but, the GR Press and 3 big local news stations barely covered the issue it seems.

Considering how much MORE toxic the waste was in GR versus what was PROPOSED to happen in KZ, what gives? (your earlier articles gave a clear indication that what was in the soil at Berkey was substantial compared to KZ).

They get exposure and action over something that NEVER even happened.

Grand Rapids gets NO exposure and NO results from something that DID happen.

Is the message to residents of our town, report a crime before it's committed. Once a crime is done, see no evil, speak no evil, hear no evil as your graphic shows?

Frankly, it's disgusting that L.A.W. has run so many articles with heavy details on this dumping crime and yet, nothing has happened locally. Where are all the workers at this site? Where are all the residents that live near these sites? Where are all the businesses and employees who worked in this area? Is everyone silent because they are scared, or don't they understand the level of toxicity involved or worse, they simply don't care?

This town can get "cool city" dollars but no one bothers to make sure law enforcement and judicial over-sight is in place for us becoming "a toxic city".

My feeling is if this happened once, it will happen again and again. Everytime I see an old factory getting renovated in this town into cute condos for gen x or y, getting remodeled into jazzy little pubs for bar & restaurant dining or trendy little retail establishments, I cringe and can't help but wonder where is all that toxic waste to those old factories going now? Someone knows, just not us because we don't seem to care. Or at least, few of us do. Guess we better be prepared to have some hazardous waste contamination with our burgers and beers in this town people.

Keep up the good fight LAW.

It's a long short but some of us are pulling for you. It's disgusting and I hope you prevail one day.

[Bridget - The Editor]

Hello TRex,

Thanks for the words of support and encouragement.

We pursue this issue not for ourselves, but everyone in the city of G.R. Toxic waste and it's proper disposal is a complicated and serious matter. It is also a very dangerous matter and we can only hope our attempts to bring the matter to light and gain justice will benefit everyone as you said, including the workers, the residents and our environment.

We know most people dislike conflict, change and complicated matters so, we take on the challenge for them. All we ask is their support and encouragement to fight the criminals in this case since no one else will. As you so wisely noted, if they don't get penalized for their actions in this case, it will continue to happen all over this city (and probably has already).

Kalamazoo residents should be proud of their efforts. They got invovled and protected themselves since the government wouldn't. Hats off to them.

Hopefully, one day Grand Rapids residents will take up the fight to protect their city and people as well.

Thanks for reading.

Regards,

[The Executive Director]

TRex,

Thanks for being a reader of our site.

It's not that people in River City don't care, it's just that they understand how the little guy is rarely the one to get a fair hearing. Anyone who has tested our legal system knows what a monster that can be to navigate and use.

Trying to get justice is no easy task these days, but that doesn't mean we won't keep trying to get our day in court to present the evidence for review.

Until then, we will keep posting here to keep readers abreast of events.

Regards,

Bill

[Cindy]

Bill & Bridget,

If toxic waste was possibly dumped at the old Filtration Plant on Monroe (as your evidence seems to imply and support), that brings to mind another question:

The Filtration Plant has since been renovated and remodeled into office space currently in use. Since your environmental reports show that a portion of the toxic waste went from the Berkey Building to the Filtration Plant, then where did the soil go that was put in the tanks at the Filtration Plant? It had to go somewhere. And do the people who worked on the Filtration Plant site know of this issue, like the workers?

Also, how was chemical waste in the dirt able to be moved while a lawsuit was on-going? Shouldn't there have been some type of work stoppage until this issue was resolved. I mean, if the dirt was severely contaminated as you say, why would the courts allow it to be moved around so easily a second time at that?

Seems like this crime is the gift that just keeps giving and giving to the individuals involved who benefited from this project (the bank, the lawyer, the contractor and developer and so on). Is the dirt going to be placed next at my kids playground or baseball diamond?

I don't think you answered this earlier so, just wondering.

Thank you.

[The Editor]

Hello Cindy,

I think I'll defer to Bill on this question as he will be better equipped to answer your question. It is a good one by the way!

Regards,

Bridget