Toxic Soil Suit Goes To Top Court

January 17, 2005
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WASHINGTON, D.C. — Petitioning the nation’s top court is as much about having their day in court as it is about an ongoing allegation that backers of a renovation project illegally dumped toxic materials.

“This case began because we were outraged that the public health of Grand Rapids residents was endangered by the recklessness of the builders who were developing a property next door to our plant,” said William Tingley III, general manager of Proto-CAM Inc., a machine-tooling plant at 1009 Ottawa Ave. NW, in a statement.

“But an even more basic issue for all Americans is now involved: Whether any of us has the right to sue in federal court without spending tens of thousands of dollars on lawyers. I hope the Supreme Court will affirm that right, no matter what happens on the hazardous waste case,” he added.

Tingley and his father, William Q. Tingley, recently filed a brief asking the Supreme Court to hear their complaint that the federal district court for the Western Michigan district erred in not allowing their case to go forward and that the trial judge, Robert Holmes Bell, was wrong to rule that they couldn’t represent themselves in the lawsuit.

The suit accuses individuals and firms involved with converting the former Berkey and Gay factory at 940 Monroe Ave. NW into a multi-use development called The Boardwalk of violating federal environmental laws and then conspiring to cover up their actions.

The Tingleys have charged that the defendants knowingly removed 26,000 cubic yards of contaminated soil from the construction site to the former Monroe Avenue Water Filtration Plant at 1430 Monroe Ave. NW. Their complaint claims the defendants transported the soil on an easement that Proto-CAM got the rights to in an earlier agreement.

Named as major defendants in the suit were 940 Monroe LLC, Fifth Third Bancorp and former mayor John Logie. Thomas Beckering, of Pioneer Construction Co., is the resident agent for the limited liability company. At least six others were also named in the suit.

The defendants have categorically denied any wrongdoing and have accused the Tingleys of filing frivolous complaints throughout the litigation process, which has gone on for nearly five years.

Here are highlights of the case:

  • October 2000: Tingley tells the U.S. Environmental Protection Agency about the alleged dumping and informs the Environmental Response Division of the Michigan Department of Environmental Quality the following month.

  • March 2001: State DEQ ERD clears the developers of the dumping charge.

  • June 2002: Circuit Court Judge Dennis Leiber grants Tingley’s request for a preliminary injunction to keep the city from destroying documents allegedly related to the transfer of the contaminated soil. But Leiber does not compel the city to produce the papers Tingley had asked for through his FOI request.

  • July 2002: Circuit Court Judge H. David Soet grants defense motions and dismisses a nine-count lawsuit brought by the Tingleys. Soet dismisses one case by ruling that Tingley was “engaged in the unauthorized practice of law.”

  • August 2002: State DEQ Office of Criminal Investigation reports not finding sufficient evidence of illegal dumping to substantiate a criminal charge. Also that month, Leiber dismisses the Tingleys’ request for city documents.

  • May 2003: Soet orders developers to pay Proto-CAM $8,900 for trespassing on the company’s easement.

  • June 2003: U.S. District Court Judge Bell dismisses the Tingleys’ suit by ruling they did not have the right to file a qui tam action. Qui tam has a private citizen bringing action against someone that the citizen believes has violated a federal regulation and files a suit on behalf of the government and him- or herself.

Bell also orders the Tingleys to pay the defendants’ attorney fees and expenses because he feels the suit was frivolous and instructs them to include his decision in any future action.

  • October 2003: Bell sanctions the Tingleys and orders them to pay the defendants $152,000 in compensation for their attorney fees.

  • February 2004: State DEQ gathers samples of the soil at the filtration plant, something the agency did not do in earlier investigations.

  • June 2004: Michigan Court of Appeals upholds a circuit court ruling that dismisses the Tingleys’ suit against the city. Appellate justices also reverse Soet’s July 2002 decision, saying that Soet “had no judicial power in this case,” and that the evidence did not support his ruling that Tingley was “engaged in the unauthorized practice of law.”

Also that month, the result of the DEQ soil testing was made known.

“The findings indicated that the soil that was sampled at the water filtration plant did not come from the Berkey & Gay plant,” said Assistant Attorney General Thomas Piotrowski.

“We were told what area to sample from Mr. Tingley. We received permission from the property owner to go out and take samples, and they did not match,” he also said.

Tingley disagreed with that finding. He countered that the DEQ report failed to offer any conclusion as to where the soil from the filtration plant actually originated and claimed that the entire data set had not been considered.

Tingley has a report done by GeoForensics, a forensics geology and environmental consulting firm in Williamston, that contradicts the DEQ conclusion.

“The government didn’t act, so we took matters into our own hands,” said Tingley in his statement. “The Michigan Department of Environmental Quality turned a blind eye to the truth while toxic chemicals were seeping into the environment.”

The 6th US Circuit Court of Appeals affirmed Bell’s June 2003 decision in September. 

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