Bulldozed: Coast Guard investigation unearths questions of toxic waste dumping

April 26, 2009

Bulldozed
Coast Guard investigation unearths questions of toxic waste dumping
By Anne Stanton

Randy Stewart held a party for his daughter’s graduation in 2005, but as the festivities swirled around him on the warm summer day, he had more serious things on his mind.
He had burned his ears while scuba diving in the bay at Bar Harbor Resort the year before—he suspected because of leachate from the cement kiln dust—and was talking about it to a friend.
“He said, ‘You wouldn’t believe it. There is so much stuff buried there, it’s crazy. It’s like a Love Canal.’ He said to me they were bringing truckloads of debris and dumping them over the side of this pit and he would, in turn, bury it all. He said it was truckload after truckload. Barrels half full of chemicals and things he didn’t know anything about. Even treated green wood. They’ve outlawed the wood since. The highest point on the golf course on the fairway is where the debris is at.”
His friend’s story of burying the waste was contained in a recently-obtained U.S. Coast Guard report by an environmental group. Yet the EPA and DEQ have maintained that locals have never come forward with details of dumping hazardous wastes. In an Express interview last fall, EPA’s Brian Kelly said that because of this lack of proof, the EPA and DEQ have not tested for dioxins, furans and PCBs.
If evidence of these wastes were ultimately found, it could potentially elevate the site to a Superfund status and possibly open a Pandora’s box of lawsuits, such as what Dow Chemical Company is enduring. Discovery of the dioxins—remnants of Dow’s pre-World War I manufacturing plants—has spawned lawsuits by homeowners living along the Tittabawassee River, according to a 2005 Detroit News article.
“I would argue, if dioxins or furans were found at Bay Harbor Resort, it would be considered a new site, a new facility,” said Jim Olson, a leading Michigan environmental attorney. “It’s a new hazardous substance and a new release. It opens up the door for an entirely new approach. The analogy is if somebody discovers prostate cancer, and then they discover something else, a disease that’s not related, it requires a new treatment.”

SECRET MEETING
Stewart said he shared the story of his friend in a secret July 8, 2006 meeting with the U.S. Coast Guard, the FBI, and the EPA, which was held in the tribal courtroom of the Little Traverse Band of Ottawa and Chippewas. With him were three other activists: hydrologist Bob Buechler, Frank Adams, and David Clink.
Why did the Coast Guard get involved? A May 26, 2005 memo written by Commanding Officer R.R. LaFerriere gives a clue: “The current process for collection of the CKD leachate with a 50 gallon vacuum tank stowed on the back of a tractor is severely deficient …”
Stewart said the Coast Guard and other officials at the meeting wanted to know everything. “We took every document and started from the beginning,” Stewart said.
The meeting triggered a U.S. Coast Guard Special Task Force preliminary investigation. The report of that investigation was recently obtained by John Richter through a Freedom of Information Act Request. Richter heads up Friends of the Jordan River, an environmental group engaged in a bitter fight to stop an injection well that CMS Energy wants to build in Alba for the disposal of treated leachate.
Richter’s belief is if they can prove organic toxins are in the water or soil, they’ll have a better chance of stopping the proposed injection well in Alba. Only one sample has been tested for PCBs—and that test was done decades ago on a sample provided by the Penn-Dixie cement company.

TEST FOR TOXINS
The Friends group has unsuccessfully lobbied the DEQ and EPA to test for dioxin, furans and PCBs. Now the Friends, along with Antrim County and other plaintiffs in the lawsuit, have gained permission to take samples of leachate and test them. The leachate samples were taken two weeks ago (the DEQ and CMS also took samples at the same time).
The results of the leachate test are part of a discovery process for the injection well trial that starts on November 4 in a 13th Circuit Court trial in Antrim County. Until then, there’s an injunction on proceeding with the well.
The plaintiffs are also seeking to test soil, but CMS Energy has so far blocked their efforts. CMS Energy spokesman Tim Petroskey was on vacation and unavailable for comment on why the company wants to block the test.
CMS Energy in the past has pointed out that treated leachate meets the standards of drinking water and poses no hazard to the Jordan River watershed. The company has also stated that it has followed the applicable rules for dealing with cement kiln dust. As far as illegal dumping on the property, there has only been anecdotal reports, but no evidence.

INVESTIGATION
After the secret meeting in July, an EPA official attempted to interview Stewart’s friend, Ray (not his real name).
“He came to my house and took all the information that I had,” Stewart said. “I gave them his phone number, but Ray didn’t tell him anything. He wouldn’t give in. So the Coast Guard detective went to his house and he could never catch him home. The Coast Guard told me that Ray was truly away or he was at home and his wife was protecting him. He believed both of those things were taking place.
“So the Coast Guard investigators said to me, ‘Randy, I know there is a way he’ll talk.’ So two of them went to his door, and more or less, they told him, ‘it will be this way or else.’ So he started talking.”
The Coast Guard report included Ray’s comments of his work from 1990 to 1992, when the Bay Harbor property was being cleared for construction:
“When Ray first arrived on the Bay Harbor property, he observed what he believed to be millions of cubic yards of CKD along with the defunct Dundee Cement Plant building, which was slowly being demolished. He specifically recalled observing a creek running from underneath one of the CKD piles he described as discolored and black, this area was known to the workers as ‘Black Creek.’ As the excavating project began, bulldozer operators were told to push ‘anything’ suspicious aside in a pile to be disposed of at a later date. Ray described ‘anything’ suspicious, as items that did, could have, or would have contained hazardous waste.”

BURYING TOXIC WASTE
“Ray said as the excavating project continued for approximately one month, the suspected hazardous waste items grew and eventually the bulldozer operators were told to ‘push the items in with all the other dirt and bury them.’”
“… Ray said the motivation for [the company he worked for] to bury the possible hazardous waste into the excavating project was to prevent the site from being declared a ‘hazardous worksite,’ thus dramatically increasing the pay scale of workers, the clean-up costs, and decreasing their profit margins from the bid.”
Ray said he heard rumors that workers became sick. According to a “white paper” authored by retired Dow scientist Ed Timm, the arsenic levels in some soil samples exceeded the contact level allowed by the DEQ. The workers should have been wearing haz-mat suits and respirators, but did not. The DEQ gave permission in 1994 to the developers to treat the CKD “like dirt” after conducting a test, which was standard at the time.
Richter wonders why the U.S. Attorney’s Office in Grand Rapids has failed to act on the Coast Guard’s findings when it suggested criminal activity.
“This whole conspiracy of denial is just mind boggling. There are people in high places who wish it would just go away.”

ANOTHER WITNESS
Ray’s testimony was given under duress to the Coast Guard and he refused last week to talk to the Express. “I’m not saying nothing.”
But Bill Harris of Indian River, who spoke publicly at a Charlevoix County Commissioner meeting several years ago on this topic, did agree to an interview.
Harris said he worked on the opposite end of the development from Ray as a contract employee in 1992. Workers were tearing down the main building, which had been operated by the Dundee Cement Company. He noted that it is legal to bury nonhazardous waste, such as concrete, but not hazardous waste.
“They dumped or hauled away anything that came out of the building. I ran the dozer to cover it up. We buried the stuff in the pits, all kinds of waste, and I know it had asbestos in it.”
Harris believes the debris went into an old dump site, which was rumored to be the site where transformers were once buried. But Harris has no proof of that, and the site was buried by the time he began dumping additional debris. College students were on the site and had been asked to take samples to test for pollution, he said.
“We’d ask them to test here, test there. They’d say we can’t check there. We wanted them to check at the dump site and they wouldn’t do it. No, they would not do that, ‘We were told not to test.’ That’s what they told us.”
John Virgo, a construction supervisor who worked with Harris, said he can’t recall anything getting hauled away from the site itself, but added that he didn’t see any asbestos.
Peter Vellenga, a Boyne City attorney, said he met one of the student trainees who worked at the site. “They had been doing water studies and made a report on the pollution that was there. They closed down the project for two days and then re-opened it. They were told it was just dead leaves, which, of course, was untrue.”

TOXIC PARK
DEQ’s Bob Wagner said he has never heard of student trainees nor has he seen their report.
Randy Stewart said that Harris buried the debris at what is now the west end of the canal that bisects East Park, where there’s been an intense effort by CMS Energy to contain the leachate. The park is owned by Resort Township.
“I went into a meeting in Resort Township in December of 2005, and I wanted to let them know about it. The park had been given to them by Bay Harbor Resort, and I wanted them to know it was in a debris field. It’s toxic and they could get sued if anyone gets hurt or dies from toxins. I wanted to let them know what happened there. “
Stewart said that attempts were made to discredit him by sending a letter he had written to developer David Johnson asking about setting up a dive shop at Bay Harbor. His letter praised the quality, fish population and water clarity of Bay Harbor. At that time, he didn’t know about chemicals in the water. His letter was read out loud at a January 3, 2006 meeting, and reprinted in the Petoskey News Review.
“I was distraught and sickened by it; it hurt me. I thought it was a low down stinking trick they played,” he said.
Stewart said he was vindicated when the East Park beach was closed down shortly after he went in front of the township. Leachate was found at pH levels that could cause severe burns, and has remained the major focus of CMS Energy’s clean-up efforts.

BUMPY ROAD
Stewart said he gave the name and story of his friend, Ray, to both the EPA and DEQ. He also conveyed the name of a man whose father worked at the Petoskey Public Works and witnessed transformers and barrels of unknown substances getting dropped off at the Bay Shore dump before the property was developed. The location of the dump is known, but dirt was piled high and deep over the site.
Stewart has suffered a bumpy road since the time his ears were burned in Bay Harbor. His concerns of the water quality prompted him to close his diving business. Afterward, the DEQ had a biologist test the harbor and found it clean. Ed Timm, a senior scientist retired from Dow, has since challenged the results, but the DEQ has stood firm. Stewart, who has devoted his energies to the pollution issue, has decided to take some time off from the Petoskey-based POWER activist group.
“I just believe the truth is the truth; it blows me away to know so much evidence has come forward. You take what I tell you, what David Clink tells you, all the different documents. You put it altogether. How in God’s name could this have never gone through an investigation at the highest level? Once you get to the bottom of everything, you realize the answer is this is political. It goes right to the very top. They even had Governor Engler throw the dynamite switch to open the channel. Everybody from the top down, they all are protecting themselves any way they can to stop anything from happening. And that’s the bottom line.”
Stewart points to a December 14, 1994, letter from the DNR that said the EPA collected samples from 11 cement production facilities that contained low levels of highly toxic furans and dioxins. Eight days later, the DNR retracted what it said.
DEQ’s Bob Wagner and EPA’s Brian Kelly both said they have not seen the Coast Guard report, which the Express faxed to both of them.
“The question is, if something was dumped, what was the concentration?” said Kelly, the EPA onsite coordinator who is in charge of the interim response.
“It’s a very large site. One or two barrels, would that make a difference? If it’s a larger amount, that’s a possibility. It’s hard to guess of what something like that would do.”
The EPA will not confirm or deny whether there is a criminal investigation, he said.

WATER IS SAFE
Because of the proximity of Petoskey’s wells to the cement kiln dust, activists have long been concerned about the quality of drinking water.
A hydrology report done for a lake association in 1994 showed that at times of peak demand, when the aquifer is depleted, water is drawn from Lake Michigan. They fear it travels through cement kiln dust, which contains arsenic and mercury. They have asked for the water to be tested at peak demand in the summertime at the three specific well sites.
In fact, the water is tested at each individual well house every quarter and every year in response to the community’s concern. Legally, it only has to be scanned for arsenic every three years, said DEQ District Engineer Brian Thurston.
Last year, when it was tested on September 4, 2008, a peak time, there were no detectable levels of arsenic or mercury, and the test sensitivity is at parts per billion, he said.
Petoskey city water is safe, he said.

The beach at East Park is still closed to the public. CMS Energy has built surface collection lines at the park to intercept the leachate. There is no evidence of leachate or cement kiln dust contamination at Bay Harbor Lake, which lies within Bay Harbor Resort, according to an EPA report.

Tip of the Mitt Policy Analyst Goes NIMBY
By Anne Stanton
Friends of the Jordan River is a grassroots group headed up by a full-time veterinarian, John Richter, who works for nothing.
Tip of the Mitt Watershed is a long-established environmental group in Petoskey with 11 staff members and a nice looking office. Its annual budget is in the millions.
The Friends can barely afford to pay their two lawyers who are pitted against five law firms hired by CMS Energy in its fight to stop a proposed deep injection well in Alba. (Antrim County and three others are also plaintiffs in the legal battle.)
In other words, the Jordan Friends could really use the help of Tip of the Mitt,. But the group did not oppose approval of the permit for the deep injection well, saying it met regulatory standards. Its official stance is that it still has “concerns with respect to additional financial assurances and prohibiting the injection of leachate that has not been treated to lower the pH.”
Jennifer McKay is the policy analyst for Tip of the Mitt and sits on the environmental committee for Resort Township. At a January meeting, she voted “aye” for the township to pursue a moratorium on Class 1 non-hazardous deep injection wells—the exact same kind of well her group decided not to oppose in Alba.
McKay told Northern Express she voted yes to investigate a moratorium because an injection well would be a risk to surface water, including Walloon Lake and Little Traverse Bay.
But don’t the Alba folks have the same concerns about the proximity to the Jordan River watershed?
“Absolutely,” McKay said. “If they had local zoning, they could have done the same thing.”
Richter called her vote “the epitome of hypocrisy.”
“If it’s a threat to ground and surface water, it’s a threat wherever it is, whether it’s Alba, Resort Township, or Romulus. I find it very troubling that a highly respected environmental organization, whose mission is to protect the water resources of Northern Michigan, condones the Alba waste injection well and is not insisting on a proper cleanup of the CKD wastes at Bay Harbor,” Richter said, noting that the clean-up so far has only focused on 20% of the entire site.
“These problems are right at their door step and have gone unresolved for over 20 years! It was once said, ‘Your greatest enemy is a weak advocate.’ It is especially troubling since they were one of the first to identify the problems at Penn Dixie’s abandoned cement plant and were very critical of the cleanup efforts early on.”
Despite the committee’s recommen-dation to pursue an injection well moratorium, the Resort Township board gave it a thumbs down.