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:  Establish strict procedures to prevent human and environmental contact with the site’s hazardous waste – i.e., contaminated soil and groundwater,  implement those procedures and keep records of compliance, and  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:  Do not disturb the contaminated soil and encapsulate it to contain its toxicity and prevent contact with human beings and the surrounding environment, or  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?
 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.
 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).
 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.
 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.
 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.
Bridget Dupont-Tingley, Editor L.A.W.