THE LOCAL AREA WATCH

DUMP TRUCKS, TOXIC WASTE, AND CASH FOR MICHIGAN

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

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

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

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

How you might ask?

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

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

What is the “Toxic Towers” story?

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

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

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

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

What does "toxic concentration" mean?

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

Who are the Boardwalk developers?

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

What did the developers do wrong?

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

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

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

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

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

How did the Boardwalk developers get away with this?

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

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

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

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

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

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

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

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

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

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

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

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

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

What is being done to hold the Boardwalk developers accountable?

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

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

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

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

Signed,

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

BIG SISTER PICKS HIS POISON

Apparently the budget, crime, and infrastructure problems of River City aren't enough to keep Big Sister, a.k.a. Grand Rapids Mayor George Heartwell, busy.  So he wandered over to Spring Lake last week to complain to the U.S. Coast Guard about its plan to designate practice firing ranges on the Great Lakes.

The purpose of the new ranges is provide machine gun training to crews of Coast Guard vessels that patrol the boundary waters between the U.S. and Canada to deter jihadists from entering the country via the Great Lakes.  Apparently border security isn't high on Big Sister's list of concerns, because he demanded that the Coast Guard cease weapons training on the Great Lakes.  He claimed that he was gravely concerned about how the lead from spent ammunition could poison our water quality.

Interesting, because Big Sister doesn't have this concern about the thirteen tons of lead (along with a 26,000-ton potpourri of soil contaminated with arsenic, mercury, and other poisons) that the Boardwalk developers dumped into the abandoned underground tanks of the old Monroe Avenue water filtration plant back in 2000.  In fact, this self-proclaimed guardian of our water quality has had nothing to say about this egregious violation of state and federal environmental statutes.  Maybe that has something to do with the fact that, as a city commissioner, Heartwell supported the city's sale of the filtration plant to one of the Boardwalk developers to "store" soil in the abandoned tanks.

Or maybe it has to do with then-City staffer Corky Overmeyer (and now Big Sister's $150,000-a-year "environmental sustainability" manager) ordering the developers to punch huge holes into the bottoms of those tanks, which has allowed over the past six years all that lead, arsenic, and mercury to leach into the groundwater below and migrate into the Grand River only one hundred yards away.

Whatever his excuse, is it really too much to ask of Big Sister to pick the poison that matters to the residents of Grand Rapids?  Probably.  Just one more example of Heartwell's sanctimony about every topic under the sun except the ones he has responsibility for and can fix.

LATEST TURN IN TOXIC TOWERS CASE

The Toxic Towers case is the lawsuit we filed in June 2002 against the developers of the Boardwalk residential-commercial complex, their contractors Pioneer Inc. and Dykema Excavators, and the City of Grand Rapids to hold them accountable for illegally dumping 20,000 tons of hazardous waste on the grounds of the old water filtration plant on Monroe Avenue (now rechristened with your "Cool City" tax dollars as Clear Water Plaza).  As outlined here, this case has followed what must be the most bizarre procedural path through the state courts in Michigan history.  Nevertheless, we have stuck to our guns.

In response to the Michigan Supreme Court's split and contentious decision in April 2006 to remand the Toxic Towers case to the Michigan Court of Appeals for review of a legal question instead of the Kent County Circuit Court for resumption of normal proceedings, our attorneys filed with the high court a motion to reconsider.  With no surprise, this week the chief justice announced that there was nothing for the high court to reconsider.

Now the case rests with the Court of Appeals to decide a specific question about our legal standing that wouldn't be before it except for the fiat of the Supreme Court.  Fortunately, the Court of Appeals has previously decided the issue of standing in our favor (twice now).  Furthermore, the Kent County Circuit Court, after reviewing our evidence of Pioneer's and Dykema's illegal removal of hazardous waste from the Boardwalk property to the filtration plant, also decided the issue of standing in our favor within the strictures the Supreme Court has laid out.  So, we have good reason to think our case will go forward -- eventually.

The galling thing about all of this is that the polluter-defendants didn't appeal to the Supreme Court these decisions on standing made by either the Court of Appeals or the Circuit Court.  Their appeal was based upon a very strange and narrow ruling of the Court of Appeals which it soon corrected.  So this thrice-settled issue of standing was not even before the Supreme Court.  Oh well, so much for the court rules and the law.  The fact is, folks, our state supreme court just like the U.S. Supreme Court is about politics not the law.

TORTUOUS TIMELINE

For the legal eagles out there, here is the twisted and bizarre path our hazardous waste lawsuit against the Boardwalk polluters has taken so far:

June 2002 - We file the lawsuit pro se in Kent County Circuit Court.

July 2002 - The local court dismisses the lawsuit, ruling that we have no standing to bring a hazardous waste complaint without representation by an attorney.

June 2004 - We appeal pro se to the Michigan Court of Appeals, which rules that we do have standing to bring the lawsuit and remands the case back to Kent County Circuit Court.

February 2005 - The local court rules that we have standing to bring the lawsuit under the stricter standards imposed by the Michigan Supreme Court in its recent Cleveland Cliffs decision.

February 2005 - Bizarrely the Michigan Court of Appeals issues an order sua sponte vacating its June 2004 decision in our favor.

May 2005 - The Michigan Court of Appeals reverses itself declaring the sua sponte order was an error and returns our lawsuit to the Kent County Circuit Court.

June 2005 - Defendant City of Grand Rapids, acting on the taxpayer's dime as lead counsel for all of the defendants, files with the Michigan Supreme Court a request for leave to appeal the appellate court's reversal of itself.

July 2005 - The City Attorney's Office then files a motion with the local court to stay all proceedings will the Supreme Court considers its request for leave to appeal, which is granted.  This shuts down discovery for us.  (No coincidence:  Knowing that we can't use discovery, the City Attorney's Office then uses the fact of this lawsuit to deny us our FOIA request for documents related to the Boardwalk developers' contradictory statements about the value of the project.)

April 2006 - The Michigan Supreme finally responds to the City's request for leave to appeal in a 4-3 decision.  Instead of denying it (as the law and prudence would dictate) and returning the case to the Kent Court Circuit Court for normal proceedings, the majority vacates both the June 2004 and May 2005 decisions by the Michigan Court of Appeals and orders it to reconsider the case.

For those who want to check out the record in further detail, the appellate decisions were made for publication.  Here are the case numbers:  Michigan S.C. Nos. 128901, 128907, and 128909; Michigan C.O.A. Nos. 243171 and 244609; and Kent County Circuit Court Case No. 02-03723-NZ.

TUNE OUT

... That's what the Michigan Supreme Court did to justice.  Somehow they managed to bollix a simple decision to deny an interlocutory leave to appeal by the City of Grand Rapids, Pioneer Inc., Dykema Excavators, and the other defendants in the Toxic Towers (a.k.a. The Boardwalk) illegal hazardous waste dumping lawsuit (here and here for details) we filed against in them -- in 2002!  Four years later and the case still hasn't even gotten into discovery.  And now four of the seven justices of the state's high court have imposed even further delay by handing our case back down to the Michigan Court of Appeals, instead of the trial court, to mull over the issue of our standing to bring the lawsuit -- which has been decided three times now in our favor!

I should give credit where it's due.  Justice Elizabeth Weaver penned a dissent strongly rebuking the majority's decision to send the case to the Court of Appeals instead of simply denying the leave and returning the case to the trial court so that discovery could proceed.  Two of her colleagues also voted to deny the leave.  So the high court was split down the middle.  Small comfort.  Justice delayed is justice denied, and the bad guys once again avoid facing the videotape, photographic, and forensic evidence in open court that shows that they faked worker affidavits and soil tests to obstruct the MDEQ's original investigation of the complaints about their illegal dumping of toxic soil at the Monroe Avenue Water Filtration Plant (now the DeVries' Clear Water Plaza, subsidized to the tune of $6.6 million of your state tax dollars) and other locations northeast of Grand Rapids.

Our lawsuit is a victim of the Supreme Court's power politics.  The majority has tried to gut the Michigan Legislature's creation of statutes that vest ordinary citizens with the power to enforce violations of environmental laws in local courts.  They believe that the Legislature poached on their turf to decide who has standing to bring a lawsuit, and so have made rulings to alter the interpretation of the plain language written by the Legislature to empower all citizens to restrict it to those citizens who clear certain legal hurdles.  So much for the high court's deference to the people's elected representatives.

Fortunately, the Michigan Court of Appeals has already twice ruled we have standing to bring the lawsuit, so they will no doubt do so again.  (On top of that, the local trial court also ruled in our favor applying the stricter standard for standing that the Supreme Court recently imposed.)  So the battle isn't over to hold the Boardwalk polluters responsible for dumping toxic concentrations of lead, mercury, arsenic, and a couple dozen other hazardous substances in our neighborhoods.  Keep your fingers crossed for us.

SUPERIOR ENVIRONMENTAL Q & A

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

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

Stunning ...

The Marshall Report, the entire foundation for the MDEQ's exoneration of the Berkey & Gay developers from any wrongdoing, has now been disavowed by the company that produced it.

In pleadings Superior Environmental Corporation filed yesterday in Kent County Circuit Court in response to the hazardous waste complaints that the Michigan Court of Appeals re-instated last month, that company explicitly refused to affirm the validity of the Marshall Report. Superior Environmental produced the Marshall Report on behalf of the Berkey & Gay developers in January 2001.

The purpose of the report was to substantiate the alibis the developers had given to the MDEQ to explain the movement of contamination soil at the Berkey & Gay site during its redevelopment into The Boardwalk. The Marshall Report included false affidavits and fabricate test results as corroboration of the developers' alibis. However, videotape, photographic, and other hard evidence had shown the Marshall Report was nothing but a tissue of falsehoods.

Thus, Superior Environmental disavowed it now that it had to, for the first time, account for the Marshall Report in a court of law. This should help pull down the MDEQ's stonewall around this matter, which had relied upon the Marshall Report as recently as this April of this year as a reason to not hold the Berkey & Gay developers accountable for their dumping of hazardous waste at the Monroe Avenue Water Filtration Plant and other locations in the Grand Rapids vicinity.

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

Your Executive Director: Because the Superior consultant who did the original Phase I and Phase II ESA's [environmental site assessments] for the Boardwalk project mischaracterized the soil's contamination to reduce the remediation needed in response to it. When the MDEQ investigated the Boardwalk site a year later, they demanded evidence supporting the conclusions of the original ESA's. So Superior drafted a report based upon false affidavits and phony test results to comply with the MDEQ.

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

Your Executive Director: Superior hasn't exactly taken responsibility for the false statements in the Marshall Report. They have said to the court that they no longer affirm the truthfulness of the report. Even so, this does not relieve Superior of liability for making false statements, which can be construed as a criminal act under Part 201 of the Michigan's Natural Resources and Environmental Protection Act.

Dave: Did others rely on their false report?

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

Dave: Do they have liability now?

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

Dave: Are they claiming that they were lied to? Were they negligent? Were they paid off? Were they a partner in the venture, thus with a potential conflict of interest?

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

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

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

ENCORE: TOXIC TOWERS

[NOTE: This article was originally published on March 15, 2005, as the second of a series chronicling the failure of local agencies to protect the public against the crimes of the Toxic Towers polluters.  Click here for the introductory article and links to the other segments of the series.]

As explained yesterday, we will be examining over the next week the people and organizations who failed to the protect the public in the Toxic Towers hazardous waste dumping scandal.  For our new readers, we recommend reading earlier articles in the Toxic Towers folder, especially "Dumping Scandal FAQ's" and "Poison".  For those who like to dig into the details, you'll find more than a whiff of government corruption in "Report to AG: MDEQ Compromised" and "River City's See-No-Evil Monkey".

For everyone's convenience, we'll recap the Toxic Towers story here.  The owners of local contractors Pioneer Incorporated, Dykema Excavators Inc., and Helms Caulking Inc. partnered up with two big Midwestern banks, Fifth Third and National City in a development company called 940 Monroe L.L.C.  (That's right, the banks aren't just lenders, but actual owners of the company.)  The purpose of the company was to renovate the old Berkey & Gay furniture factory on Monroe Avenue north of downtown Grand Rapids into the residential-commercial complex now known as "The Boardwalk".  (It's also affectionately known as "Toxic Towers" by some of its tenants.)

In November 1999 the Boardwalk developers broke ground and began hauling waste away from the site.  They continued to transport waste from the site through at least December 2000.  This waste included 26,000 tons of contaminated soil (see "Poison" for details) removed by Pioneer and Dykema Excavators.  It also includes dozens of 55-gallon drums of liquid wastes removed by Helms Caulking.

How do we know this waste was contaminated with poisonous hazardous substances?  Easy.  The Boardwalk developers hired Superior Environmental Corporation to test the soil and groundwater of the project site in two dozen different places.  The results showed that the soil and groundwater was filthy with toxic chemicals and metals, including arsenic, mercury, and lead.  The concentrations of these contaminants was so high in some places that the soil was dangerous even to touch.  After tabulating these results, Superior Environmental filed them with the state, and so they are now part of the public record.

What the Boardwalk developers did not make part of the public record was a document commonly known as the "due care plan".  This plan specifies the safety measures the developers and their contractors must take to prevent the project site's hazardous waste from coming into contact with people and the surrounding environment.  (It is curious that Fifth Third and National City did not demand that the Boardwalk's due care plan be publicly filed with the state for its scrutiny, because doing so helps to protect the loans made to brownfield projects like the Boardwalk.  All of the things Fifth Third in particular failed to do to protect the $25 million loan it and National City made to 940 Monroe L.L.C. should be of interest to shareholders.  Another story for another day.)  Instead the Boardwalk developers kept the "due care plan" under wraps.  It directed them to take expensive and time-consuming safety measures, which they were not going to do.

In fact, the primary contractors for the Boardwalk developers, Pioneer and Dykema Excavators, treated the project's poisonous soil as clean material and dumped about 20,000 tons of it into the empty water tanks of the nearby Monroe Avenue Water Filtration Plant.  (See "The Murky History of Clearwater Plaza" for details on then-Mayor Logie's role in the sale of the filtration plant to Dykema Excavators, its use as an unlicensed hazardous waste landfill, and the plan to palm off this secret landfill as a clean-water research center to the public.)  Results of tests conducted by the State of Michigan at the filtration plant proved that the soil now there came from the Boardwalk project site.  They also dumped another 6,000 tons elsewhere in the Grand Rapids vicinity.

Despite sworn denials the Boardwalk developers gave the State of Michigan, there's no question that their contractors removed 26,000 tons of toxic soil from the project site and permanently dumped it elsewhere.  There are hundreds of hours of surveillance videotape recording this removal.  There are admissions from some of the contractors.  There are photographs.  There are test results.  The only contrary "evidence" was a report Superior Environmental prepared for the Michigan Department of Environmental Quality claiming that all of the Boardwalk's soil remained on-site, which Superior Environmental disavowed before the Kent County Circuit Court in July 2004.

Dear readers, it isn't even a close call that the Boardwalk developers did what we say they did.  The evidence is overwhelming.  They dug up the poison beneath the Berkey & Gay factory, stored it out in the open to spread out into the surrounding area and into the City's sewer system, and then transported across our streets to dump it out in the open without containment or warning to anyone.  They knew what they were doing.  They planned it, they carried it out, and then they lied and obstructed law enforcement and the courts to evade responsibility.  They didn't care who they exposed to their poison, so long as they got rid of it on the cheap.

So, why haven't the people we pay to protect us from such vile acts done anything about this?  How did the city, the state, the courts, the media -- everyone -- fall down on the job?  We start telling you that story, chapter by chapter, tomorrow.

[NOTE: This article was originally published on March 15, 2005, as the second of a series chronicling the failure of local agencies to protect the public against the crimes of the Toxic Towers polluters.  Click here for the introductory article and links to the other segments of the series.]

As explained yesterday, we will be examining over the next week the people and organizations who failed to the protect the public in the Toxic Towers hazardous waste dumping scandal.  For our new readers, we recommend reading earlier articles in the Toxic Towers folder, especially "Dumping Scandal FAQ's" and "Poison".  For those who like to dig into the details, you'll find more than a whiff of government corruption in "Report to AG: MDEQ Compromised" and "River City's See-No-Evil Monkey".

For everyone's convenience, we'll recap the Toxic Towers story here.  The owners of local contractors Pioneer Incorporated, Dykema Excavators Inc., and Helms Caulking Inc. partnered up with two big Midwestern banks, Fifth Third and National City in a development company called 940 Monroe L.L.C.  (That's right, the banks aren't just lenders, but actual owners of the company.)  The purpose of the company was to renovate the old Berkey & Gay furniture factory on Monroe Avenue north of downtown Grand Rapids into the residential-commercial complex now known as "The Boardwalk".  (It's also affectionately known as "Toxic Towers" by some of its tenants.)

In November 1999 the Boardwalk developers broke ground and began hauling waste away from the site.  They continued to transport waste from the site through at least December 2000.  This waste included 26,000 tons of contaminated soil (see "Poison" for details) removed by Pioneer and Dykema Excavators.  It also includes dozens of 55-gallon drums of liquid wastes removed by Helms Caulking.

How do we know this waste was contaminated with poisonous hazardous substances?  Easy.  The Boardwalk developers hired Superior Environmental Corporation to test the soil and groundwater of the project site in two dozen different places.  The results showed that the soil and groundwater was filthy with toxic chemicals and metals, including arsenic, mercury, and lead.  The concentrations of these contaminants was so high in some places that the soil was dangerous even to touch.  After tabulating these results, Superior Environmental filed them with the state, and so they are now part of the public record.

What the Boardwalk developers did not make part of the public record was a document commonly known as the "due care plan".  This plan specifies the safety measures the developers and their contractors must take to prevent the project site's hazardous waste from coming into contact with people and the surrounding environment.  (It is curious that Fifth Third and National City did not demand that the Boardwalk's due care plan be publicly filed with the state for its scrutiny, because doing so helps to protect the loans made to brownfield projects like the Boardwalk.  All of the things Fifth Third in particular failed to do to protect the $25 million loan it and National City made to 940 Monroe L.L.C. should be of interest to shareholders.  Another story for another day.)  Instead the Boardwalk developers kept the "due care plan" under wraps.  It directed them to take expensive and time-consuming safety measures, which they were not going to do.

In fact, the primary contractors for the Boardwalk developers, Pioneer and Dykema Excavators, treated the project's poisonous soil as clean material and dumped about 20,000 tons of it into the empty water tanks of the nearby Monroe Avenue Water Filtration Plant.  (See "The Murky History of Clearwater Plaza" for details on then-Mayor Logie's role in the sale of the filtration plant to Dykema Excavators, its use as an unlicensed hazardous waste landfill, and the plan to palm off this secret landfill as a clean-water research center to the public.)  Results of tests conducted by the State of Michigan at the filtration plant proved that the soil now there came from the Boardwalk project site.  They also dumped another 6,000 tons elsewhere in the Grand Rapids vicinity.

Despite sworn denials the Boardwalk developers gave the State of Michigan, there's no question that their contractors removed 26,000 tons of toxic soil from the project site and permanently dumped it elsewhere.  There are hundreds of hours of surveillance videotape recording this removal.  There are admissions from some of the contractors.  There are photographs.  There are test results.  The only contrary "evidence" was a report Superior Environmental prepared for the Michigan Department of Environmental Quality claiming that all of the Boardwalk's soil remained on-site, which Superior Environmental disavowed before the Kent County Circuit Court in July 2004.

Dear readers, it isn't even a close call that the Boardwalk developers did what we say they did.  The evidence is overwhelming.  They dug up the poison beneath the Berkey & Gay factory, stored it out in the open to spread out into the surrounding area and into the City's sewer system, and then transported across our streets to dump it out in the open without containment or warning to anyone.  They knew what they were doing.  They planned it, they carried it out, and then they lied and obstructed law enforcement and the courts to evade responsibility.  They didn't care who they exposed to their poison, so long as they got rid of it on the cheap.

So, why haven't the people we pay to protect us from such vile acts done anything about this?  How did the city, the state, the courts, the media -- everyone -- fall down on the job?  We start telling you that story, chapter by chapter, tomorrow.

ENCORE: POISON

[Note: This is a companion piece to the article below.  It describes the toxic nature of the waste that the contractors for the Boardwalk (a.k.a. Berkey & Gay) project dumped in Creston Heights and other northeast neighborhoods.  This article originally ran on March 3, 2005.]

For the benefit of our readers unfamiliar with the standards the State of Michigan has set for environmental contamination, we thought it would be helpful to explain why the soil that the developers of The Boardwalk (f.k.a. the Berkey & Gay furniture factory) dumped at illegal landfills in the Grand Rapids are constitutes hazardous waste and why it is dangerous to you and the environment.

What do you mean by "hazardous waste" and "contaminated soil"?

In the "Toxic Towers" articles we mean nothing less than materials that are toxic to you and the environment.  The soil of the Boardwalk project site was contaminated with two dozen hazardous substances in concentrations dangerous to human life and health.  Therefore, this contaminated soil is a hazardous waste regulated by state and federal statutes to prevent it from coming into contact with you, your family, and the environment.

To sum up, when we say "hazardous waste" or "contaminated soil", we mean poison.

What is a hazardous substance?

It is a dangerous contaminant, such as the ones found throughout the soil of the Boardwalk project site.  It is one of the hundreds of metals and chemicals that the federal government has identified (and the State of Michigan has adopted) as toxic to human life and health if present in a certain concentration.  The hazardous substances found in the soil of the Boardwalk before its redevelopment included lead, mercury, arsenic, phenanthrene, and several other metals and chemicals.

What is the importance of the concentration of a hazardous substance?

Briefly, it determines whether or not it is toxic to you.  Some substances we would normally think of as always poisonous, such as arsenic, pose no threat if its concentration is very low in materials like soil or water.  Conversely, other substances we think of as innocuous, like zinc, are in fact poisons when concentrations get too high.

Two dozen hazardous substances were found in the soil of the Boardwalk project site that were in concentrations toxic to human life and health, according to the standards set by the State of Michigan.  This is unsurprising because the old furniture factory had been built upon "urban fill" -- i.e., industrial waste -- and manufacturing operations were carried out there for over a century.

What standards did the Boardwalk soil violate?

Safe drinking water, ambient air, and direct contact standards.  This means that the soil of the Boardwalk project site was poisonous to drinking water, poisonous to the air in its immediate vicinity, and poisonous to the touch.  Therefore, the developers of The Boardwalk were obligated under state and federal law to:

[1]  Prevent the high concentrations of lead in the Boardwalk's soil from getting into our drinking water supply (i.e., the groundwater and system system flowing into the Grand River, which in turn flows into Lake Michigan);

[2] Make sure workers and visitors at the Boardwalk project site were equipped with breathing apparatuses that protected them from inhaling the poisonous phenanthrene the soil was releasing into the ambient air;

[3] Make sure workers and visitors at the Boardwalk project site were wearing protective clothing to prevent prolonged direct contact with the hazardous metals and chemicals contaminating the site's soil.

What did the Boardwalk developers do to protect us and the environment from the contaminated soil they were removing from the project site?

Nothing.  In fact, the Boardwalk developers falsely portrayed the project site's soil as uncontaminated so that they could move around the site and transport it off-site for permanent disposal without any controls to prevent hazardous exposure to the site's workers, visitors, neighbors, and the general public.

Where is the Boardwalk soil now?

We know that about 20,000 tons of it (roughly a pile the size of a nine-story building) was illegally dumped onto the grounds of the old Monroe Avenue Water Filtration Plant, a nationally registered historic landmark recently re-christened as "Clearwater Plaza".  We believe another 6,000 tons has been illegally dumped at other locations in the Grand Rapids vicinity.  The developers refused to tell authorities where these other dumpsites are.

Therefore, this hazardous waste that had once been contained at its source, The Boardwalk, has now been spread around our City.  The extent of the danger remains unknown.

ENCORE: DUMPING SCANDAL FAQ'S

[Note: Below is a primer for the Toxic Towers dumping scandal.  You will find it useful for posing questions to the candidates for the Grand Rapids City Commission.  The poison excavated by Pioneer Inc. and Dykema Excavators Inc. - a favored city contractor - still festers at the Monroe Avenue Water Filtration Plant and elsewhere.  This article was originally published on February 18, 2005.]

What happened?

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.

ENCORE: THE RIVER RATS

[There's been a crime spree here in River City and the ones who kept the bad guys from getting caught were their lawyers.  Isn't that a lawyer's job, you might ask?  Well, it depends upon what a lawyer does.  To give you some idea of the type of shyster shenanigans that cross the line, we have reprised our article "The River Rats" originally published on April 13, 2005.  It is a good primer on the type of characters behind our upcoming series on the biggest bank robbery in our city's history.]

We received some unexpected comments on the most recent installment of our "River of Corruption" series in which we detailed the involvement of eight local attorneys in the Toxic Towers dumping scandal, a.k.a. the River Rats.  No one disagreed that the conduct of these lawyers was abominable.  Instead our respondents were surprised that their deceitful actions were ethically proscribed.  One wag asked me, "Isn't a lawyer a liar by definition?"  It seems, dear readers, that some of you have so low of an opinion of the legal profession that you believe the bar doesn't even bother to set standards for honesty and fair-dealing.

There are in fact standards governing the ethical conduct of attorneys.  In this state those standards are embodied in the Michigan Rules of Professional Conduct (MRPC).  The Michigan Supreme Court is responsible for formulating these standards and disciplining attorneys who do not comply with them.  The Supreme Court has delegated the disciplinary function to the Attorney Grievance Commission (AGC), which is a body composed mostly of attorneys to investigate, prosecute, and discipline their miscreant brethren.  The AGC's record is a mixed bag, as might be expected of a fox guarding the henhouse, but that's another story.  The point here is that, without regard to any failure of the AGC to act (because the final say always rests with the Supreme Court), we tagged each of the River Rats with ethical misconduct that we have found to be in violation of the MRPC.

For example, we cited Dick Wendt for unethically serving two masters to the advantage of one over the other.  While Wendt was representing the City of Grand Rapids in the negotiation of a tax subsidy for the Boardwalk developers, his law firm was representing the developers!  No surprise that City taxpayers ended up with a raw deal.  This is a clear conflict of interest.  Wendt had a duty of loyalty to negotiate (or even refuse to offer) a tax subsidy to the Boardwalk developers that was in the best interest of the residents and taxpayers of the City of Grand Rapids, while at the same time his law firm wanted to obtain the best deal possible for the Boardwalk developers.

So who's Wendt's boss?  The taxpayers or his law firm?  That's a circle he cannot ethically square, which is why MRPC Rule 1.7(b) prohibited Wendt from representing the City in that case.*  Nevertheless, he did so to the disadvantage of City taxpayers when the Boardwalk developers landed a unprecedented $2.5 million tax subsidy for their project.

Another example, we told you that John Ferroli falsely briefed the court in our pending environmental citizen suit against the Boardwalk developers that the facts we alleged were knowingly false.  For Ferroli to ethically make such a charge he had to know with certainty from his own investigation of our claims that what we had alleged was untrue.  Having a difference of opinion is not enough to accuse someone of lying to a court, a very serious charge.  Of course, the videotape, photographic, and scientific soil test evidence is in and has substantiated the factual contentions of our citizen suit, so Ferroli could never have honestly known anything to the contrary sufficient to tar us with making false statements of fact to the court.  False accusations like this are a violation of MRPC Rule 3.3 which forbids a lawyer from knowingly making a false statement of material fact to a court.

So be assured, readers, that we are not complaining about the general nastiness of the River Rats.  We believe their misconduct in the Toxic Towers dumping scandal constitutes specific violations of the Michigan Rules of Professional Conduct.  We have already obtained some judicial findings to support our conclusions, and we expect more will come.  With those in hand, we will then pursue the discipline of these miscreants that is appropriate to their misdeeds.  Stay tuned.

____________________

* MRPC Rule 1.7(b) does allow a lawyer to represent a client despite a conflict of interest if that client gives his informed consent to that representation.  (Even consent is not carte blanche for a conflicted lawyer, because he is required to have a reasonable belief that his representation of the client will not be materially limited by the conflict of interest.)  However, we made a Freedom of Information Act request of the City of Grand Rapids to find out if consent were ever given, and the City certified that there was no record of it.  Nor has Wendt produced any proof of consent.

[There's been a crime spree here in River City and the ones who kept the bad guys from getting caught were their lawyers.  Isn't that a lawyer's job, you might ask?  Well, it depends upon what a lawyer does.  To give you some idea of the type of shyster shenanigans that cross the line, we have reprised our article "The River Rats" originally published on April 13, 2005.  It is a good primer on the type of characters behind our upcoming series on the biggest bank robbery in our city's history.]

We received some unexpected comments on the most recent installment of our "River of Corruption" series in which we detailed the involvement of eight local attorneys in the Toxic Towers dumping scandal, a.k.a. the River Rats.  No one disagreed that the conduct of these lawyers was abominable.  Instead our respondents were surprised that their deceitful actions were ethically proscribed.  One wag asked me, "Isn't a lawyer a liar by definition?"  It seems, dear readers, that some of you have so low of an opinion of the legal profession that you believe the bar doesn't even bother to set standards for honesty and fair-dealing.

There are in fact standards governing the ethical conduct of attorneys.  In this state those standards are embodied in the Michigan Rules of Professional Conduct (MRPC).  The Michigan Supreme Court is responsible for formulating these standards and disciplining attorneys who do not comply with them.  The Supreme Court has delegated the disciplinary function to the Attorney Grievance Commission (AGC), which is a body composed mostly of attorneys to investigate, prosecute, and discipline their miscreant brethren.  The AGC's record is a mixed bag, as might be expected of a fox guarding the henhouse, but that's another story.  The point here is that, without regard to any failure of the AGC to act (because the final say always rests with the Supreme Court), we tagged each of the River Rats with ethical misconduct that we have found to be in violation of the MRPC.

For example, we cited Dick Wendt for unethically serving two masters to the advantage of one over the other.  While Wendt was representing the City of Grand Rapids in the negotiation of a tax subsidy for the Boardwalk developers, his law firm was representing the developers!  No surprise that City taxpayers ended up with a raw deal.  This is a clear conflict of interest.  Wendt had a duty of loyalty to negotiate (or even refuse to offer) a tax subsidy to the Boardwalk developers that was in the best interest of the residents and taxpayers of the City of Grand Rapids, while at the same time his law firm wanted to obtain the best deal possible for the Boardwalk developers.

So who's Wendt's boss?  The taxpayers or his law firm?  That's a circle he cannot ethically square, which is why MRPC Rule 1.7(b) prohibited Wendt from representing the City in that case.*  Nevertheless, he did so to the disadvantage of City taxpayers when the Boardwalk developers landed a unprecedented $2.5 million tax subsidy for their project.

Another example, we told you that John Ferroli falsely briefed the court in our pending environmental citizen suit against the Boardwalk developers that the facts we alleged were knowingly false.  For Ferroli to ethically make such a charge he had to know with certainty from his own investigation of our claims that what we had alleged was untrue.  Having a difference of opinion is not enough to accuse someone of lying to a court, a very serious charge.  Of course, the videotape, photographic, and scientific soil test evidence is in and has substantiated the factual contentions of our citizen suit, so Ferroli could never have honestly known anything to the contrary sufficient to tar us with making false statements of fact to the court.  False accusations like this are a violation of MRPC Rule 3.3 which forbids a lawyer from knowingly making a false statement of material fact to a court.

So be assured, readers, that we are not complaining about the general nastiness of the River Rats.  We believe their misconduct in the Toxic Towers dumping scandal constitutes specific violations of the Michigan Rules of Professional Conduct.  We have already obtained some judicial findings to support our conclusions, and we expect more will come.  With those in hand, we will then pursue the discipline of these miscreants that is appropriate to their misdeeds.  Stay tuned.

____________________

* MRPC Rule 1.7(b) does allow a lawyer to represent a client despite a conflict of interest if that client gives his informed consent to that representation.  (Even consent is not carte blanche for a conflicted lawyer, because he is required to have a reasonable belief that his representation of the client will not be materially limited by the conflict of interest.)  However, we made a Freedom of Information Act request of the City of Grand Rapids to find out if consent were ever given, and the City certified that there was no record of it.  Nor has Wendt produced any proof of consent.