The Michigan Court of Appeals mailed us a copy of its opinion [links to PDF file]handed down yesterday it has, on its own volition, reversed last year's ruling allowing our hazardous waste lawsuit proceed against The Boardwalk developers. The court now says our case must be dismissed because we had not submitted affidavits and expert opinion to establish sufficient injury or causation of that injury.
Nice to know after we acted upon the court's earlier ruling and expended considerable funds to litigate the remanded case in the local court. On top of that we HAVE submitted to the court the very affidavits and expert opinion we're supposed to need.
This is not the end of getting justice, folks, but it does go to show how vulnerable our legal system is to those who will lie, cheat, and steal to get off the hook.
During the renovation of the old Berkey & Gay furniture factory into The Boardwalk apartment-office complex, the contractors for the project excavated about 26,000 tons of contaminated soil from the site and dumped it at the nearby Monroe Avenue Water Filtration Plant and other locations.
When did this happen?
The removal of waste material from the Berkey & Gay site began in November 1999. The last solid waste was removed in November 2000 and liquid waste in December 2000. None of the contaminated soil removed from the site was dumped at a licensed disposal facility, therefore, the local environment’s exposure to this waste is an ongoing hazard.
Where did this happen?
The Berkey & Gay building (now known as “The Boardwalk”) is located north of downtown Grand Rapids along the eastern bank of the Grand River at 940 Monroe Avenue, N.W. The Monroe Avenue Water Filtration Plant, where most of the contaminated soil was dumped, is located about a half mile north of the Berkey & Gay building at 1430 Monroe Avenue, N.W., in the Creston Heights district.
What is this waste?
The old Berkey & Gay furniture factory was built atop “urban fill”. Urban fill is waste material the City of Grand Rapids used to fill in and level out the banks of the Grand River in the late nineteenth century. It 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 building 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 is 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 a hazardous waste.
What is the evidence that these hazardous substances were in the soil?
In November 1999 the developers of The Boardwalk 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 Michigan Department of Environmental Quality in February 2000. Consequently the State of Michigan certified the Berkey & Gay site as an environmentally contaminated “facility” under state law.
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.
What is the hazard to me and my family?
If you were a worker at the Berkey & Gay site between November 1999 and November 2000, especially as someone involved in the excavation and removal of the project site’s soil, and you did not wear protective clothing, gloves, or a mask, you may have been exposed to dangerous levels of the hazardous substances contaminating the site according to the Michigan Department of Environmental Quality. In particular, the MDEQ warned The Boardwalk’s developers that the site’s workers had to be protected from breathing in phenanthrene that is released into the ambient air when the soil containing it is disturbed.
The Boardwalk project’s environmental consultant, Superior Environmental Corporation, also warned the developers that because of the direct contact hazard the soil presented to human life and health that all of the site’s soil had to be permanently isolated from any human exposure by a physical barrier. However, the developers never did this. The contaminated soil was left in large waste piles at the project site to be spread out by the wind and the rain into the surrounding area. These waste piles were then transferred to the Monroe Avenue Water Filtration Plant for disposal, where they remain exposed to the wind and the rain. Therefore, people living and working in the vicinity of the Monroe North corridor from late 1999 to the present may have been exposed – and may continue to be exposed – to the hazardous substances in that soil. The health consequences of this continued exposure have not yet been determined by either the State of Michigan or outside experts.
Presently the contaminated soil dumped at the Filtration Plant most likely poses a direct contact hazard, which can be avoided by not visiting the site. However, The Boardwalk developers dumped this contaminated soil at other locations, which they have refused to disclose to authorities. Therefore, the hazard those dumpsites present to the public is unknown.
Has the law been violated?
The Local Area Watch thinks so. Environmental citizen suits are pending against The Boardwalk developers, their contractors, and the City of Grand Rapids before both the U.S. Supreme Court (for violations of federal environmental statutes) and the Kent County Circuit Court (for violations of Michigan’s Hazardous Waste Management Act).
What has the government done to police this?
Unfortunately very little.
When The Boardwalk developers’ soil removal activities were first reported to the Michigan Department of Environmental Quality in September 2000, the developers simply denied any such activity. As proof, they had their employees sign affidavits swearing that they had not removed soil from the Berkey & Gay site. On behalf of the developers, Superior Environmental Corporation incorporated these affidavits into a report for the MDEQ that purportedly explained how all the soil remained at the Berkey & Gay site.
The MDEQ has since then relied upon this report and the affidavits to take no action against The Boardwalk developers, despite the fact that:
1. Scientific analysis of the soil samples collected by the MDEQ from the Filtration Plant show that the soil dumped there was from the Berkey & Gay site; 2. There are hundreds of hours of surveillance videotapes recording hundreds of transports of contaminated soil from the Berkey & Gay site to off-site disposal locations; 3. Photographs showing that none of this contaminated soil remained at the Berkey & Gay site after its excavation; 4. An admission to a MDEQ criminal investigator by one of the project’s dump truck drivers that his affidavit contained false statements; 5. Superior Environmental filed a signed statement with the Kent County Circuit Court disavowing the validity of the report it had prepared for the MDEQ.
Who is responsible?
The Boardwalk developers are two Michigan limited liability companies called 900 Monroe L.L.C. and 940 Monroe L.L.C. These companies are owned by:
1. Fifth Third Bank; 2. National City Bank; 3. Thomas E. Beckering (owner of Pioneer Incorporated); 4. Daniel J. Helms and Diane Helms (owners of Helms Caulking Inc.); 5. David P. Mehney and Linda M. Mehney; 6. Susan L. Grant; 7. DMAC Inc. (which in turn is owned by James Dykema of Dykema Excavators Inc. and Scott MacGregor).
The contractors responsible from removing the contaminated soil from the Berkey & Gay site are Pioneer Incorporated and Dykema Excavators Inc. The contractor responsible from removing some of the liquid waste from the project site is Helms Caulking Inc. The contractor responsible for the project’s environmental quality is Superior Environmental Corporation.
How is the City of Grand Rapids responsible?
The City provided The Boardwalk developers with the primary dumpsite for the contaminated soil: The Monroe Avenue Water Filtration Plant.
The Filtration Plant was an old water treatment facility that the City shut down in the early ‘90s. In February 1999 then-Mayor Logie persuaded the City Commission to turn down a $600,000 offer for the Filtration Plant to sell it to Dykema Excavators Inc. for $400,000 on a land contract requiring only small annual payments for three years.
The City Commission did have one concern about selling the Filtration Plant to Dykema Excavators. The grounds of the Filtration Plant consisted mostly of large empty concrete water tanks – ready-made holes to dump all manner of waste into. The Commission wanted to ensure that Dykema Excavators did not dump any toxic waste into those tanks. Therefore, as a condition of the sale, it required Dykema Excavators to submit to an inspection regime in which the City Engineer would inspect any soil to be used to fill in the tanks at its source to establish that it was clean.
Then Dykema Excavators took possession of the Filtration Plant in May 1999. It immediately demolished the concrete water tanks and drilled holes through their bottoms. In June 1999 Dykema Excavators reported this to the City Engineer. The City then did an about-face and suspended the inspection regime, and Dykema Excavators and later Pioneer proceeded to dump about 20,000 tons of contaminated soil from the Berkey & Gay project site into the demolished tanks.
The City was alerted to this dumping by the National Response Center of the federal government, but it took no action. Later in closed sessions of the City Commission, then-Mayor Logie quashed attempts by the City Commission to investigate the dumping at the Filtration Plant in violation of the purchase agreement signed by Dykema Excavators. When the Local Area Watch tried to get the City of Grand Rapids to disclose the minutes of this closed session meetings, the City Attorney’s office destroyed them instead.
So, the City is responsible because it not only held title to the Filtration Plant while The Boardwalk developers were using it as an unlicensed landfill for hazardous waste, but also because it helped to conceal that unlawful use of the Filtration Plant.
What can I do?
First of all, if you believe you have been exposed to the hazardous substance that The Boardwalk developers released, you may want to consider seeing your doctor to determine if your health is at risk. Otherwise avoid the one known dumpsite, the Monroe Avenue Filtration Plant, until the waste there has been cleaned up or contained.
Second, contact your City Commissioner to find out why the City of Grand Rapids has refused to act in the best interests of the public in alerting everyone to the potential hazards of this illegal dumping and leading the way in solving the problem.
Finally, stay in the loop about this problem by visiting this site and sharing with us with any ideas, information, or concerns you have.
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!
Today the United States Supreme Court accepted for filing our petition to appeal in the matter of Tingley v. City of Grand Rapids, Case No. 04-933. Earlier on December 30, 2004, the high court also accepted for filing our petition for U.S. ex rel. Tingley v. 900 Monroe, Case No. 04-886. Copies of both petitions are now available from the Local Area Watch.
The 900 Monroe case alleges that the developers and lead contractors of the Berkey & Gay redevelopment project, along with the City of Grand Rapids and former Mayor John Logie, illegally removed from the project site 26,000 tons of hazardous waste and dumped on the grounds of the old Monroe Avenue Water Filtration Plant. The case further alleges that the defendants made false statements to city and state officials to conceal this illegal activity.
The City of Grand Rapids case alleges that the some of the defendants in the 900 Monroe case with the assistance of their attorneys obstructed justice to stop the proceedings of the 900 Monroe case and other lawsuits that threatened to expose evidence of the illegal dumping and its cover-up. The Grand Rapids case also alleges that these parties retaliated against the Executive Director of the Local Area Watch and others for reporting evidence of the illegal dumping to state and federal law enforcement.
The lower courts refused to consider the facts of either of these cases and dismissed them for technical reasons of the law. (For a good summary of how this all played out, see pages 5 through 11 in the City of Grand Rapids petition.) These reasons are weak, but the lower courts used them because the defendants in both cases were represented by locally influential attorneys who successfully mischaracterized us and our motives as malicious and harassing. By this means, they persuaded the lower courts to not consider the overwhelming evidence of illegal dumping of hazardous waste and cover-up, including:
Scientific analysis of the soil samples collected by the Michigan Department of Environmental Quality from the Filtration Plant show that the soil dumped there was from the Berkey & Gay site;
Hundreds of hours of surveillance videotapes recording hundreds of transports of contaminated soil from the Berkey & Gay site to off-site disposal locations;
Photographs showing that none of this contaminated soil remained at the Berkey & Gay site after its excavation;
An admission to a MDEQ criminal investigator by one of the project’s dump truck drivers that he had made false statements under oath about the illegal dumping;
A statement by the project’s environmental consultant to the Kent County Circuit Court disavowing the validity of the report purportedly accounting for the disposition of all the waste at the Berkey & Gay project site that it had prepared for the MDEQ.
This has been a genuine “David versus Goliath” struggle. We are asking the U.S. Supreme Court to ignore the character assassination committed against us and our cause by powerful local law firms, including Warner Norcross, Varnum Riddering, Dykema Gossett, and Law Weathers, and consider only the law and the facts of these cases. The consequence of the Supreme Court letting the lower court decisions stand is two-fold. First, the hurdle will be raised for all ordinary citizens to use the statutes that the U.S. Congress provided to give us access to the federal courts to remedy serious threats to the environment and fraud against taxpayers that law enforcement has failed to properly address.
Second, the local bad guys are off the hook in federal court.* Our surveillance videotape records their massive removal of toxic soil contaminated with arsenic, lead, mercury, and other hazardous substances from the Berkey & Gay project site for dumping elsewhere – primarily at the nearby Filtration Plant. The videotapes prove this and that they lied to state investigators and the courts that no toxic soil had ever been removed from the project site. Because this poison has been left exposed to the environment at the Filtration Plant and other dumpsites, everyday our drinking water is threatened with the migration of hazardous substance into the groundwater then into the Grand River and finally into Lake Michigan.
The potential fines these defendants could face for this exceed over $30 million dollars for each truckload of toxic soil dumped off-site. Hundreds of hours of our surveillance videotape alone record about 800 truckloads of toxic soil being transported off the Berkey & Gay project site. Moreover, because of the defendants’ successful obstruction of law enforcement and the courts, the local government has not acted to alert those who may have exposed to these deliberate releases of hazardous substances into our local environment.
You can help by asking the Mayor and the City Commission of Grand Rapids to stop supporting the Berkey & Gay developers and act in the best interests of the City’s taxpayers and residents instead. You can also help by staying in the loop about this problem. Keep visiting us and contact us with any ideas, information, or concerns you.
* Fortunately, we also have a lawsuit pending against some of these defendants in Kent County Circuit Court for violation of the state’s Hazardous Waste Management Act.
We will not be posting new information here for a while. We will be busy assisting our attorneys present our hazardous waste citizen suit to Judge Redford of the Kent County Circuit Court. As you may recall, this is the lawsuit that in June the Michigan Court of Appeals ordered the local court to hear. Our initial objective will be to revise our complaint and counter the objections that the defendants have to it. Once Judge Redford approves our complaint, discovery will begin. At that point, we will return.
Keep your fingers crossed for us. Someone has to hold the polluters accountable.
My father-in-law has followed our Berkey & Gay hazardous waste story with some interest but not so closely to be familiar with the names of all the players and the role of each in the conspiracy. This became apparent from the questions and remarks he had this weekend after reading some of the articles posted on the website. So it occurred to me that it might be helpful to all of our readers if I recapped the Berkey & Gay hazardous waste conspiracy.
We have reported to state and federal law enforcement and have alleged in court the following:
1. The developers of the old Berkey & Gay furniture factory site in downtown Grand Rapids, Michigan – presently known as The Boardwalk – excavated approximately 26,000 tons of contaminated soil from that site during the year 2000 and then disposed of it in the abandoned concrete water tanks of the old Monroe Avenue water filtration plant and other locations in the Grand Rapids area.
2. The developers carried out this massive removal of contamination without any environmental controls to prevent workers, neighbors, and passersby from coming into direct contact with it or to prevent its release into the surrounding environment, including the Grand Rapids city storm sewer system and the nearby Grand River. Furthermore, none of the places the developers used to permanently dump the Berkey & Gay’s contaminated soil was licensed for hazardous waste disposal.
3. The developers planned this unlawful excavation and disposal of the Berkey & Gay’s hazardous waste by producing an environmental site assessment for the old factory’s grounds that misrepresented the extent and nature of the contamination. When we brought these unlawful activities came to the attention of state and federal authorities, the developers obstructed their investigations with false affidavits, faked soil tests, and other frauds.
However, hundreds of hours of surveillance videotape, photographs, soil testing conducted by the State of Michigan, and other compelling evidence prove beyond a doubt that the Berkey & Gay developers did illegally dumped tens of thousands of tons of contaminated soil in various locations in the Grand Rapids vicinity. Consequently, the Michigan Attorney General’s office has agreed to review this evidence, and the Michigan Court of Appeals has ruled that our allegations of hazardous waste violations by the developers and their cohorts are valid.
The Bad Guys
So, that in a nutshell is the Berkey & Gay hazardous waste conspiracy, which brings us to the next question: Who are the Berkey & Gay developers?
Formally, the developers of the Berkey & Gay site are a pair of Michigan limited liability companies called 940 Monroe L.L.C. and 900 Monroe L.L.C. Limited liability companies are either managed by the members (i.e., the owners) or by a designated manager who may or may not be a member. Both LLC’s are operated by a designated manager, Thomas E. Beckering, who is a member of both LLC’s and the owner and chairman of the construction company Pioneer Incorporated. It appears that Beckering has operated the LLC’s jointly from the offices of Pioneer.
However, there’s more to this story. Upon completion of the renovation of the Berkey & Gay site into The Boardwalk in March 2001, Beckering submitted to the State of Michigan an amendment to 940 Monroe L.L.C.’s articles of organization in which he ceded financial management of the company to his bankers, Fifth Third Bancorp and National City Community Development Corporation. Moreover, both of these banks are Beckering’s co-members in 940 Monroe L.L.C. As such Beckering testified under oath in April 2001 that Fifth Third directed and managed the removal and off-site disposal of the Berkey & Gay’s contaminated soil.
Another member of 940 Monroe L.L.C. that should interest the public is James Dykema. Dykema is one of the principals of Dykema Excavators Inc. In May 1999, after the Berkey & Gay’s project manager had complained to Grand Rapids city officials that he had no inexpensive means of disposing of the Berkey & Gay’s contamination, then-Mayor John Logie lobbied the Grand Rapids City Commission to approve the sale of the defunct Monroe Avenue water filtration plant to a low bidder, Dykema Excavators Inc.
Make what you will of the fact that Fifth Third was a major client of Mayor Logie’s firm and that Logie seldom recused himself as mayor from decisions involving such conflicts of interest. Note that the high bid for the filtration plant was $600,000 and that Dykema Excavators offered only $400,000 WITHOUT anything but nominal payments for three years. Note also that the filtration plant was located only about a half mile north on Monroe Avenue from the Berkey & Gay site and that the plant’s grounds consisted of large concrete water tanks that were empty and ready to accept up to 100,000 cubic yards of fill. The filtration plant was the ideal disposable site for the Berkey & Gay’s contamination and Logie sold it one of the developers who used it for just that purpose.
For More Information
This is only part of the intrigue and rotten backroom deals that screwed the residents and taxpayers of the City of Grand Rapids, but this will give you some idea of the strings that the Berkey & Gay developers were able to pull to first plan this scheme and then to cover up their violations when the authorities arrived on the scene. See the other articles in the “Hazardous Waste Project” folder for more details. Also see the articles in the “FOIA Project” folder to learn how the City Attorney’s office destroyed official records of Logie’s involvement with Fifth Third and the Berkey & Gay developers to prevent them from becoming evidence in federal court.
City Document Disposal Technician -- ahem, I mean, Assistant City Attorney Daniel Ophoff -- sent us a response on September 7th to our Clean Water Act notice. He sounds upset. He threatened contempt of court and sanctions if we proceed against the City. Apparently Ophoff doesn't quite get the fact that we are already proceeding against the City in an action formally approved by the Michigan Court of Appeals. Moreover, I'm surprised that Ophoff doesn't better understand the meaning of contempt. After all, it takes a hell of lot of contempt as a person on the taxpayers' payroll to destroy government records to hide from the taxpayers what Boss Logie was doing to screw them.
[Editor's note: We sent this notice of Clean Water Act violations to Fifth Third Bank, one of the owners of the Berkey & Gay project a.k.a. "The Boardwalk". We sent similar notices to the developer 940 Monroe L.L.C., one of the major contractors Dykema Excavators Inc., the City of Grand Rapids, and others at the same time.]
August 10, 2004
Mr. George A. Schaefer, Jr.
Fifth Third Bancorp
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Re: Notice of Intent to Sue for Violations of the Clean Water Act
Dear Mr. Schaeffer:
This is a notice to you that the Local Area Watch (“LAW”) believes that the renovation and operation of the Boardwalk residential-commercial complex in Grand Rapids, Michigan, which is owned and operated by Fifth Third Bancorp through its development company 940 Monroe L.L.C. (collectively, “FTB”), have resulted and continue to result in numerous discharges of pollutants into the Grand River watershed in violation of the Clean Water Act, 33 U.S.C. Sections 1251 et seq. (“CWA”).
Specifically, FTB has violated the CWA by discharging from numerous point sources in the immediate vicinity of the Boardwalk and the nearby Monroe Avenue Water Filtration Plant pollutants into the Grand River watershed without having either applied for or obtained the necessary National Pollutant Discharge Elimination System (“NPDES”) permits.
This letter, pursuant to 33 U.S.C. Sections 1365(a) and (b) of the CWA, is giving FTB notice of LAW’s intent to file suit to address the violations of the CWA as described in this letter.
1. The Clean Water Act requires NPDES permits for discharges of pollutants from point sources into navigable waters.
Under the Clean Water Act it is unlawful to discharge pollutants from a “point source” into navigable waters without obtaining and complying with a permit governing the quantity and quality of discharges. Trustees for Alaska v. EPA, 749 F.2d 549, 553 (CA9, 1984). The Clean Water Act prohibits “the discharge of any pollutants by any person” except in compliance with, among other provisions, the NPDES permitting requirements of the Act. 33 U.S.C. Section 1311(a). This includes discharges of polluted storm water. 33 U.S.C. Section 1342(p). The duty to apply for a permit lies with ‘[a]ny person who discharges or proposes to discharge pollutants …”. 40 C.F.R. Section 122.21(a).
A discharge of pollutants is “any addition of any pollutant to navigable waters from any point source”. 33 U.S.C. Section 1362(12). Pollutants includes, among other things, hazardous substances, industrial wastes, rock, sand, soil, and dirt discharged into water. 33 U.S.C. Section 1362(6). A point source is “any discernable, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, [or] conduit … from which pollutants are or may be discharged”. 33 U.S.C. Section 1362(14). “Navigable waters” means “the waters of the United States”. 33 U.S.C. Section 1362(7).
FTB owns and operates the Boardwalk building, which it renovated for residential and commercial use from November 1999 through March 2001 and thereafter put into service. The Boardwalk is located at 940 Monroe Avenue, N.W., in downtown Grand Rapids, Michigan. The site of the Boardwalk covers about 4.2 acres and fronts about 700 feet of the Grand River. New storm water sewers on or immediately adjacent to the Boardwalk site empty into the Grand River. The groundwater beneath the Boardwalk is perched atop bedrock beginning at depths of ten to twelve feet and either flows directly into the Grand River or into its tributary, Coldbrook Creek, about 1/8 of mile to the north. Furthermore, the Grand River floods seasonally, saturating and then draining the water-bearing strata beneath the Boardwalk. The Grand River empties into Lake Michigan, about 30 miles to the west.
Two environmental surveys of the Boardwalk site were commissioned by FTB in November 1999. FTB received the results of these surveys in December 1999. Extensive testing of the site’s soil established that it was severely contaminated with at least 26 hazardous substances, including lead, arsenic, mercury, and several poly-nuclear aromatic and volatile organic compounds. Most of these contaminants were present at toxic concentrations, pursuant to the State of Michigan’s standard for safe direct contact. Lead and arsenic contaminated the soil at levels as much as three times the toxic limit. Benzo(A)pyrene was found to exceed the toxic limit by 17,000%. Furthermore, several hazardous substances were found in concentrations far above the State of Michigan’s safe drinking water standards: Lead, chromium, mercury, zinc, naphthalene, phenanthrene, and trichloroethene. Phenanthrene exceeded the standard by 3,300%; trichloroethene, a volatile organic compound, by 78,000%; and lead by 180,000%.
Because of the pervasiveness of these contaminants, the Boardwalk’s soil constituted hazardous waste subject to regulation under Michigan’s Hazardous Waste Act, MCL Sections 324.11101 et seq., and the federal Solid Waste Disposal Act, 42 U.S.C. Sections 6901 et seq. Consequently, the Boardwalk’s soil is a pollutant under the CWA by virtue of both its form (i.e., dirt) and hazardous content. FTB’s renovation and operation of the Boardwalk have discharged, continue to discharge, and threaten to discharge pollutants through point sources into the Grand River without having secured an NPDES permit. Neither FTB, nor any agent on its behalf, has ever applied for an NPDES permit to govern the discharge of the Boardwalk’s soil, demolition rubble, and construction waste into the Grand River. No authority has ever issued any such NPDES permit to FTB or its agents.
2. FTB has and continues to discharge pollutants from point sources into navigable waters without the required NPDES permits in violation of the CWA.
Beginning in November 1999, FTB’s demolition, excavation, and construction activities at the Boardwalk site produced pollutants that were subsequently, and continue to be, discharged from point sources, including storm sewers, culverts, and other drains, into the Grand River. LAW will allege in its complaint that FTB required NPDES permits for these actual and potential discharges at the outset of construction activity and everyday thereafter its failure to do so, or on at least 1,659 occasions. LAW will also allege that the required NPDES permits included:  Two permits for storm water discharges from the sites of the Boardwalk and the Filtration Plant (see 33 U.S.C. Section 1342(p)(4)(A)); and  two permits for discharges of pollutants also from these sites (see 33 U.S.C. Section 1311(a)). Therefore, FTB has violated its duty to apply for and receive at least four NPDES permits on at least 6,636 occasions.
Furthermore, FTB continues to discharge pollutants in the form of the Boardwalk’s contaminated soil and other demolition and construction waste into the Grand River watershed in the following manner:
 The hazardous substances described in the previous section and other pollutants are continuously discharging into the Grand River watershed through a culvert beneath the Boardwalk’s parking ramp where FTB’s agents stated under oath that they disposed of the contaminated soil generated during the Boardwalk’s renovation – thus, resulting in at least 1,659 unlawful discharges under the CWA;
 The same hazardous substances and other pollutants are discharging into the Grand River through nineteen storm water drains located on the site of the Boardwalk or immediately adjacent to it as a consequence of run-off during 250 rain events in excess of 0.1 inches from contaminated soil generated during the Boardwalk’s renovation and stored on-site – thus, resulting in at least 4,750 unlawful discharges under the CWA;
 The same hazardous substances and other pollutants are continuously discharging into the Grand River watershed through the drains FTB’s agents drilled through the bottom a large concrete reservoir at the Filtration Plant into which, according to statements FTB’s agents made to the Michigan Department of Environmental Quality, they disposed of contaminated soil excavated from the Boardwalk site during its renovation – thus, resulting in at least 1,659 unlawful discharges under the CWA;
 The same hazardous substances and other pollutants are discharging into the Grand River through a storm water drain located at the site of the Filtration Plant as a consequence of run-off during 250 rain events in excess of 0.1 inches from the waste FTB’s agents dumped into the Filtration Plant reservoir – thus, resulting in at least 250 unlawful discharges under the CWA;
 The same hazardous substances and other pollutants are discharging into the Grand River through numerous storm water drains located along the public streets FTB’s agents used to transport (for off-site disposal) the contaminated soil and other waste they generated at the Boardwallk site during its renovation; the discharges are the consequence of run-off from transport spillage during 250 rain events in excess of 0.1 inches – so far resulting in an undetermined number of unlawful discharges under the CWA.
Note that pollutants contaminating storm water become lodged at the bottom of storm water drains, below the level of the lateral connecting the drain to the Grand River, and remain there for years (or until cleaned) to repeatedly discharge into the lateral during rain events. Because none of these actual or proposed discharges are in conformance with an NPDES permit, LAW will allege in its complaint that FTB discharged pollutants into the Grand River watershed on at least 8,318 occasions in violation of the CWA. 33 U.S.C. Sections 1311(a).
3. Notice of intent to sue FTB for violations of the CWA.
This notice covers all violations occurring from November 1999 to the present, as well as any violations of the type described above that occur after this notice. To date, LAW places FTB on notice of at least 14,954 violations of the CWA within the watershed of the Grand River. Upon filing the noticed lawsuit, LAW will seek declaratory and injunctive relief to remediate past violations and prevent further violations of the Act pursuant to 33 U.S.C. Sections 1365(a) and (d), and other relief as permitted by law. In addition to the declaratory and injunctive relief, LAW will seek an order for the payment of civil penalties. Each separate violation of the CWA subjects FTB to a penalty of up to $27,500 per day per violation. 33 U.S.C. Section 1319(d); 40 C.F.R. Section 19.4. Finally, LAW will seek recovery of its costs and fees, including attorneys’ fees. 33 U.S.C. Section 1365(d).
LAW intends to sue on behalf of itself and its members. It intends to file suit 60 days from the date of this letter. See 33 U.S.C. Section 1365(b)(1)(a). During the 60-day notice period, LAW would be willing to discuss effective remedies for the violations noted in this letter. However, if you wish to pursue such discussions in the absence of litigation, we suggest that initiate those discussions as soon as possible. We do not intend to delay the filing of a complaint if discussions are continuing when the notice period ends.
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.
Wm Q. Tingley III
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).
As promised, forensic geologist Robert Hayes of Geoforensics Inc. has produced a report regarding the source of the soil dumped into the abandoned concrete water tanks of the City's old water filtration plant on Monroe Avenue. Per Hayes:
"It is the opinion of GeoForensics, Inc. that comparisons, as presented above, of relatively recent WFP [i.e., Filtration Plant] soil samples with soil samples from B&G property [i.e., The Boardwalk] collected in 1999, show that the WFP soil originated at the B&G property."
Hayes noted that the contaminants in both soils were the same. Furthermore, he ranked those contaminants for each soil sample in terms of concentration. Ranking the contaminants by concentration created a fingerprint for each sample, and comparing those "fingerprints" Hayes was able to show that the source of Filtration Plant soil was The Boardwalk, formerly known as the Berkey & Gay Building. Hayes also pointed out that the fingerprints of samples from near the surface of the Berkey & Gay soil matched with the fingerprints of samples from the bottom of the Filtration Plant tanks, and vice versa. This would be expected if the Berkey & Gay soil had been excavated and then dumped at the Filtration Plant. The stuff at the top would the first into the tanks at the Filtration Plant, and so on.
Videotapes, photographs, soil tests, and expert analysis. What more evidence could the state possibly need to act?
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.
Yesterday, July 14th, forensic geologist Robert Hayes analyzed the results of the MDEQ's testing of soil collected from the old Monroe Avenue Water Filtration Plant in Grand Rapids, Michigan. He found that that soil came from the site of the old Berkey & Gay furniture factory.
A little background: Three years ago we had reported to the MDEQ that the developers of the Berkey & Gay project (formally now known as "The Boardwalk", less formally known as "Toxic Towers" by some of its lessees) had dumped about 20,000 cubic yards of contaminted soil at the Filtration Plant that they had excavated from grounds of the old factory. After the MDEQ's protracted refusal to collect hard evidence of our complaint, the Michigan Attorney General's office stepped earlier this year to order the MDEQ to test the soil of the Filtration Plant, which it did.
As I reported to you last week, the MDEQ's statistical analysis of the test results was consistent with our complaint that the soil had come from the Berkey & Gay site. However, MDEQ Deputy Director Jim Sygo, probably to cover his department's bureaucratic hide, decided to tell the Attorney General's office without any foundation that the statistical analysis in fact proved that the Berkey & Gay site was not the source of Filtration Plant soil.
Hayes has now completed his preliminary study of the data and has made the following sworn statement about the soil at the Filtration Plant:
"My analyses of data from both locations show relationships between soil samples from the B&G site and the WFP [i.e., Filtration Plant].
"Based on type, presence, absence, and/or concentrations of organic chemicals and metal contamination, it is my professional opinion that there is sufficient evidence to show similarities enough to warrant further investigation, if not positive correlation to show that soil at the WFP originated from the B&G property."
Hayes will be carrying out a complete study of the Filtration Plant soil tests which will be ready within the next few weeks.
We received an interesting document from the City Attorney's office. Apparently in response to our victories in the Michigan Court of Appeals, the City wants the court to know about a letter Jim Sygo, Deputy Director of the MDEQ, wrote on April 30, 2004. The City copied us on its notice to the court, which of course included a copy of Sygo's letter.
Earlier this year, Assistant Attorney General Thomas Piotrowski ordered the MDEQ to test the soil of the old Monroe Avenue Water Filtration Plant for the presence of hazardous waste, which we had reported been dumped there by the developers of the Berkey & Gay project (now known as "The Boardwalk"). The MDEQ collected the soil samples on February 2, 2004, and Sygo's letter reports the results of the chemical testing of these samples and his conclusion as to what these results mean. Sygo sums everything up with:
"It is the DEQ's position that the allegations associated with the relocation of soil from the former Berkey & Gay property have been adequately evaluated and the results do not suggest that any unlawful activity has occurred. Consequently, the DEQ considers this matter to be closed and will take no further action at this time."
Well, that would seem to be that, wouldn't it? How about the rest of the story ...
Sygo's letter, obstensibly written to yours truly (who for whatever reason did not receive the letter), was more importantly copied to Piotrowski, who had re-opened the criminal investigation of the Berkey & Gay developers' illegal dumping of hazardous waste. Piotrowski had reviewed videotape and other compelling evidence of the Berkey & Gay developers' environmental violations, which refuted the MDEQ's prior conclusion that nothing had happened. Piotrowski was also disturbed that the MDEQ's investigation excluded from consideration the evidence of the videotape, photographs, and an admission from one of the developers' dump truck drivers to making false statements in affidavits submitted to the MDEQ.
So, Piotrowski ordered the MDEQ to test soil at the Berkey & Gay developers' biggest dumpsite, the old filtration plant, which the MDEQ had previously refused to do. It had insisted relying upon the affidavits from the Berkey & Gay developers, such as that of the recanting dump truck driver, and so did not want to find any evidence refuting those affidavits. Plainly the MDEQ had a bureaucratic incentive to not have its closure of the case questioned by the Attorney General's office. Nevertheless, it did as instructed, collected the samples, tested them, and then analyzed them.
The MDEQ's analysis by staff statistician Sarah Hession was interesting. She found that the contamination profile of the Berkey & Gay soil was the same as that of the filtration plant samples, only that the contamination of the filtration plant samples was in lower concentrations. Well, of course, because the 20,000 cubic yards of Berkey & Gay contamination dumped at the filtration plant was mixed in with maybe another 80,000-100,000 cubic yards of dirt from other sources. In short, the MDEQ's tests prove that the soil at the Filtration Plant came from the contaminated Berkey & Gay site -- as we had said for the past three years.
However, Sygo decided to interpret Hession's work differently. Without any scientific foundation he asserted in his letter that Hession's analysis proved that the Berkey & Gay project site was not the source of the soil at the Filtration Plant: "The results of the statistical analysis indicate no similarity between the soils within the former clearwells [of the Filtration Plant] and the Berkey & Gay site." Hession in her analysis drew no conclusions as to the source of the soil. So, to buttress this assertion, Sygo again relied upon the false and discredited affidavits and other evidence that the Berkey & Gay developers had previously submitted to the MDEQ to bamboozle them: "Furthermore, we can not substantiate [L.A.W.'s] claim that eight hundred truckloads of contaminated soil were transported off-site for disposal at unlicensed landfills. Interviews, sworn statements, mass balance calculations, and contractor documention accounted for all of the other materials that were removed from the Berkey & Gay site." Yeah, all self-serving evidence provided the culprits.
Although Sygo's conclusion is official, it is bogus -- and it wasn't intended to persuade L.A.W. that nothing happened. The real audience for Sygo's letter of April 30th was the Attorney General's office. Be assured we'll ask forensic geologist Bob Hayes to put the ki-bosh on this bit of deception by the people our tax dollars are paying to protect us -- not the polluters.
Robert Hayes of Geoforensics Inc., a forensic geologist and former employee of the Michigan Department of Environmental Quality, issued a report yesterday, June 30th, finding that the Berkey & Gay developers had violated state environmental laws during the renovation of the old furniture factory in downtown Grand Rapids. Hayes prepared the report on behalf of L.A.W.
This is the conclusion of the Hayes report:
"Based on the information I reviewed (referenced in the Appendix), it is my professional opinion that re-development activities at the former Berkey and Gay property resulted in non-compliance with Section 7a of Part 201, as well as violations of various other portions of Part 201 and other state regulations.
"Documents generated by the owners/operators of the property located at 900-1010 Monroe Ave. in Grand Rapids, MI, show that these properties are a facility, according to Part 201. The Due Care Compliance Analysis set forth due care obligations to prevent exacerbation of contamination, to mitigate exposures to contaminated soil, and to take reasonable precautions against acts or omissions of a third party. However, these obligations were not met and the public health, safety, welfare, and/or environment are threatened and/or contaminated.
"Moving contaminated soil from one area of the property to another, less contaminated area, exacerbated existing contamination on site. Also, contaminated soil was excavated and transported from the site to an unapproved off-site location. Again, this action exacerbated existing contamination by spreading contamination to an off-site location. Furthermore, this action threatened the public health, safety, welfare, and/or the environment, potentially increased the public’s exposure to contaminated soil and groundwater, and did not protect against foreseeable acts or omissions of third parties. There was no documentation of compliance – except for an after-the-fact attempt. And, the disposition of the abandon containers is still unknown.
"Property owners/operators and others involved in the re-development activities described above are subject to fines and penalties because the contamination at this facility was known and documented and because contaminated soil was knowingly transported to an off-site location. As a result, the fines are likely to be very high (i.e., in the millions of dollars) and the penalties potentially include criminal liability." [Emphasis added.]
OK, it's not over, and it's not the beginning of the end. But it is the end of the beginning. On Thursday, June 24th, the Michigan Court of Appeals ruled that we had the right to bring a citizen suit against Fifth Third Bank, the City of Grand Rapids, the developers of the Berkey & Gay project, and their contractors for violations of Michigan's Hazardous Waste Management Act (HWMA) when they colluded to dump about 20,000 tons of lead- and arsenic-contaminated soil at the City's old water filtration plant on Monroe Avenue.
Two years ago Judge David Soet of the Kent County Circuit Court booted our case. He ruled ordinary citizens like yours truly were barred from suing miscreant polluters. The Court of Appeals, applying the plain words of the HWMA, said otherwise in its published opinion:
"The Plaintiffs correctly claim that they have standing to sue under [the HWMA]. ... The trial court stated that '[t]hat the real parties in interest in the environmental claims in this case are ... the general public, which is endangered by the alleged contamination confronted by the alleged violation of statutes of the [s]tate of Michigan,' and that this type of action would ordinarily be pursued by the attorney general. The act, however, expressly permits an individual to bring a civil action to remedy violations of the act and does not restrict the ability to sue to only those persons whose individual interests are harmed." [My emphasis.]
So, it's back to court where the polluters of the filtration plant will finally have to confront the videotape and photographic evidence refuting the false evidence they had presented to the Michigan Department of Environmental Quality, the Michigan Attorney General's office, and the court to stop our complaint against them.
Tuesday evening the Grand Rapids City Commission, a.k.a. Boss Logie & the Supine Six, awarded the law firm Wardrop & Wardrop P.C. a City contract for legal services. The small three-man firm specializes in bankruptcy, immigration, and ambulance-chasing – ahem, that is, personal injury. Exactly why the taxpayers need the services of such a firm isn’t clear.
(L.A.W. will send a Freedom of Information Act request to the City to find out.)
What is clear is that one of the firm’s partners is Robert Wardrop, who is also a co-defendant of Boss Logie’s in the hazardous waste dumping lawsuit Tingley v 900 Monroe. One of the wrongful acts alleged in that lawsuit is that Wardrop struck a crooked deal with Logie and former City economic development chief Ned Zimmerman that, to make a VERY short story of it, ensured that the developers of the Berkey & Gay building would have a drive for transporting offsite the hazardous waste they were digging out of that property.
Wardrop had indiscreetly blabbed about this deal, and even went so far as to put the basic facts of it in an affidavit, as a way to stop the local court from prohibiting the developers from using that drive, which they desperately needed to get the hazardous waste out. Will Wardrop keep blabbing now that an attorney-client privilege – and a steady flow of taxpayer dollars - exist between the City and his firm?
Let’s answer that with the question that started this story. Should we be surprised that the City has decided that the taxpayers need an ambulance chaser on the payroll? Not if that ambulance chaser can implicate Boss Logie and the City in dumping hazardous waste in the middle of our fair city.
In response to L.A.W. Executive Director William Tingley's request for an injunction to stop releases of hazardous waste from the old Monroe Avenue water filtration plant in Grand Rapids, Michigan, Kent County Circuit Court Judge H. David Soet has ordered an evidentiary hearing starting on July 26, 2002.
In a letter dated July 1, 2002, Judge Soet stated that Tingley's request for an injunction "makes serious allegations against some defendants of violating environmental law in the disposition of contaminated ... [This request] will probably involve the testimony of experts and judging from the faxed letter received by the court and all counsel from Mr. Dickinson [one of the defendants] any adverse expert opinion may be hotly disputed and countered by other expert testimony. We have, therefore, canceled the hearing set for July 5 and set this matter for a 2-day Evidentiary Hearing" on Thursday, July 25th and Friday, July 26th at 8:30 AM.
Tingley's request for an injunction is based on allegations that he made in the lawsuit Tingley v 900 Monroe filed in Kent County Circuit Court on June 11, 2002. Those allegations include the unlawful removal of contaminated soil from the site of the old Berkey & Gay furniture factory during its renovation in 1999 and 2000 and the unlawful landfilling of that soil in the abandoned concrete water tanks of the filtration plant.
William Tingley, the Executive Director of the Local Area Watch, has requested a preliminary injunction against several parties, including Fifth Third Bancorp, the City of Grand Rapids, and Mayor John H. Logie, to stop releases of hazardous waste from the abandoned water tanks of the old Monroe Avenue water filtration plant and to notify those who have been exposed to that hazardous waste of any health risks. Judge H. David Soet of the Kent County Circuit Court is scheduled to hear this request for injunction on Friday, July 5, 2002, at 1:30 p.m.
Tingley has alleged that the developers of the Berkey & Gay renovation project, currently known as The Boardwalk located at 940 Monroe Avenue N.W. north of downtown Grand Rapids, excavated hazardous waste from that site containing toxic concentrations of two dozen metals and chemicals including arsenic, lead, and mercury. The developers then transported that hazardous waste to the nearby Monroe Avenue water filtration plant, a nationally registered historic site, and dumped it into the empty concrete water tanks of that facility.
Tingley has further alleged that the developers removed and disposed of this waste without due care in violation of Michigan’s Environmental Response Act. The developers handled the waste without any special measures to ensure that it did not come into direct contact with the workers excavating it or with any members of the public during its transport and disposal. However, before excavating and moving this waste, the developers had been warned in writing by their environmental consultant that the waste must not come into direct contact with human beings and should not be moved. Later the Michigan Department of Environmental Quality also warned the developers that the waste presented a health hazard from the inhalation of phenanthrene evaporating from the hazardous waste into the ambient air.
Tingley has also alleged that the City of Grand Rapids deliberately destroyed documents that were evidence of Mayor Logie’s and the City’s complicity with letting the developers use the filtration plant as a hazardous waste landfill. In a Freedom of Information Act complaint filed earlier this year in Kent County Circuit Court, the Local Area Watch sought the disclosure of the minutes of Grand Rapids City Commission closed sessions in which Mayor Logie and the Commissioners made decisions concerning the dumping of hazardous waste at the filtration plant. In response to this complaint, the City Attorney’s office destroyed the minutes rather than disclose them to the court.
The request for preliminary injunction is part of a broader complaint holding the developers, Fifth Third Bancorp, several local attorneys, the City of Grand Rapids, and Mayor Logie responsible for a scheme to quickly and cheaply remove the hazardous waste of the Berkey & Gay factory site to the filtration plant to accommodate Spectrum Health’s plan to renovate the old factory into offices for its training consortium and apartments for students.
Today William Tingley III, executive director of the Local Area Watch, and his co-plaintiffs William Tingley and Daniel Bradley amended their lawsuit in Kent County Circuit Court against local attorneys for fraud on the court to include violations of Michigan Natural Resources and Environmental Protection Act.
The purpose of the amendment was to show that the original allegations of fraud on the court was part of a larger conspiracy to unlawfully remove and dispose of hazardous waste. Judge Soet, in a ruling on Friday, June 7, 2002, gave Tingley and his co-plaintiffs leave to amend their lawsuit. The amended lawsuit is now captioned Tingley v 900 Monroe and includes several new counts and new defendants, including Fifth Third Bancorp, the City of Grand Rapids, and Grand Rapids Mayor John H. Logie.
The lawsuit alleges that the defendants conspired to unlawfully remove hazardous waste (in the form of soil contaminated with toxic concentrations of hazardous substances) from the site of the Berkey & Gay Building during its recent redevelopment for commercial and residential uses. Working together, the complaint alleges, the defendants obtained the empty concrete tanks of the old Monroe Avenue water filtration plant as a disposal site for the hazardous waste and then disguised the removal of the hazardous waste as the handling of clean fill so that it would not be subject to costly restraints of the site’s due care plan.
According to Tingley, the uncontrolled removal and disposal of the hazardous waste exposed the workers at the Berkey & Gay site and the neighbors of the water filtration plant to two dozen known contaminants that were present in toxic concentrations in the soil including lead, arsenic, and mercury. Furthermore, the Michigan Department of Environmental Quality warned the Berkey & Gay developers that there was a phenanthrene inhalation hazard if workers exposed the contaminated soil to the air.
To stop further release of these contaminants at their current disposal site at the water filtration plant, Tingley and his co-plaintiffs will be seeking an injunction from the court. Specifically, the plaintiffs will ask the court to order the defendants to seal off or completely remove the hazardous waste from the filtration plant and to advise workers, neighbors, and the pubic in general of any risk of exposure that they may have encountered because of the defendants’ reckless handling of this hazardous waste.
157,000 POUNDS OF HAZARDOUS SUBSTANCES MISSING
MICHIGAN ATTORNEY GENERAL OPENS CRIMINAL INVESTIGATION
DEVELOPERS REFUSE TO SAY WHERE TOXIC WASTE WENT
The celebrated redevelopment of the ancient Berkey & Gay furniture factory into the Boardwalk office and apartment complex located at 940 Monroe Avenue N.W. on the northern edge of downtown Grand Rapids, jokingly referred to as “Toxic Towers” by some of its residents and workers, is the subject of a criminal investigation by the Michigan Department of Environmental Quality (MDEQ). A century’s accumulation of hazardous industrial waste, including toxic levels of arsenic, mercury, and lead, that had poisoned the soil and groundwater below the old furniture factory is missing, and state investigators want to know where the Boardwalk developers put it.
The Boardwalk developers, a secret group of investors fronted by local contractor Thomas E. Beckering, have denied in various statements to MDEQ officials that they removed any of the hazardous waste known, according to public records, to contaminate the site of the Boardwalk before construction began. However, both the MDEQ and the U.S. Environmental Protection Agency have in evidence several hundred hours of videotape footage showing the lead contractors for the developers, Pioneer Incorporated and Dykema Excavators Inc., hauling away dozens of truckloads of the hazardous waste on daily basis during September, October, and November of 2000.
The developers’ credibility was further undermined by the fact that they had built an entirely new basement level to house Spectrum Health Corporation’s training subsidiary, the Grand Rapids Medical Education & Research Center, and a new five-story parking ramp. Both new features of the Boardwalk commercial-residential complex required contractors for the developers to remove an estimated 28,000 cubic yards of soil to make room for the new construction.
That soil is unaccounted for by the Boardwalk developers in their statements to MDEQ officials. According to publicly recorded findings of the hazardous substances that were known to contaminate the Boardwalk site before construction began, this missing soil is contaminated with 157,000 pounds of heavy metals, petro-chemicals, and volatile organic compounds in concentrations hazardous to human life and health.
As a consequence of the videotape and other evidence, Michigan Assistant Attorney General Thomas Piotrowski directed Thomas Mintner, head of the Grand Rapids MDEQ office to open a criminal investigation in February 2001 to determine what the developers removed from the Boardwalk site and where they dumped it. In May 2001, Michigan Assistant Attorney General Michael Leffler visited one of the suspected dumpsites, the old Grand Rapids water filtration plant, which Michigan State University has been supporting as the future site of a drinking water treatment research center. (See related story, Logie’s Landfill.)
In June 2001, according to the detective Mintner assigned to the investigation, employees of the Boardwalk developers made false statements about removing and dumping the Boardwalk’s hazardous waste at the filtration plant. By October 2001, the MDEQ’s detective had collected eyewitness accounts and other evidence impeaching those statements. By the end of October 2001, Michigan State Senator Kenneth Sikkema (R-Grandville), who had pressed the MDEQ to investigate at the time the dumping of Boardwalk hazardous waste had first been reported in the fall of 2000, wrote a letter to William Tingley, executive director of the Local Area Watch, that the MDEQ’s Office of Criminal Investigations was now actively investigating the charges of illegal dumping of hazardous waste by the Boardwalk developers.
In February 2002, Minter informed the Grand Rapids media that he expected the criminal investigation to be concluded soon. However, in March 2002 the Michigan Attorney General’s office received several dozen pages of documents from the Local Area Watch that linked the illegal dumping of the Boardwalk’s hazardous waste to a bank fraud and corruption by Grand Rapids city officials. (See related stories, Logie’s Landfill and Behind Closed Doors.) The most recent twist occurred on May 10, 2002, when Grand Rapids Assistant City Attorney Daniel Ophoff informed the Local Area Watch’s attorney Peter Steketee that city officials had destroyed critical documents concerning the illegal dumping of Boardwalk waste at the filtration plant after the Local Area Watch had subpoenaed them. (See Behind Closed Doors for full details.)
Neither the Michigan Attorney General’s office nor the MDEQ has had any comment on the status of the Boardwalk hazardous waste investigation in light of these recent developments. Meanwhile, the Boardwalk’s arsenic, lead, and mercury continue to poison the land, water, and air of the hazardous waste dumps the Boardwalk’s developers created in and around Grand Rapids.
Keep checking here as we continue to update this story.
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