Law Office

TERRY JONATHAN LODGE

316 N. Michigan Street, Suite 520 Phone (419) 255-7552

Toledo, Ohio 43604-5627 Fax (419) 255-8582
[email protected]

March 6, 2009

Thomas Allenson, U.S.

Army Corps of Engineers
c/o Matthew R. Oakes, Esq.
U.S. Department of Justice
P.O. Box 23986
Washington, D.C. 20026-3986
[email protected]
Via email only

Ryan D. Cobb, Esq.

Assistant United States Attorney
United States Attorney's Office,
Western District of Michigan
P.O. Box 208
Grand Rapids, Michigan 49501
[email protected]
Via email only

RE: Jean Klock Park Conversion, Benton Harbor, Michigan (toxic

contamination of mitigation parcels)

Dear Mssrs. Oakes and Cobb:

I’m writing on behalf of the Plaintiffs in the pending litigation

to bring to the Corps of Engineers’ attention information which we
believe somehow, by design or inadvertence, was not disclosed to the
Corps as it deliberated over issuance of Section 404 CWA approval for
this conversion project. Based on the matters covered below, my
clients demand an immediate suspension and, preferably, cancellation
of the Section 404 permit granted by the Corps of Engineers for the
destruction of natural features and conversion of Jean Klock Park in
Benton Harbor.

From 2006-2008, the Detroit Corps office attempted to bring NEPA

considerations into the conversion planning process led by Harbor
Shores Community Redevelopment, Inc., the developer. It appears,
however, that the Corps restricted the scope of its permit to regu-
lating the effects from the golf course project upon wetlands, streams
and nearby rivers associated with the course. This undue narrowing
precluded serious inquiry into the state of seven (7) parcels in-
volving dozens of acres of nearby former industrial land used to
“mitigate” - offset - the 105-year, permanent taking of 22+ acres in
Jean Klock Park for golf.

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 Contrary to what was disclosed to the public for scrutiny during
the pre-application phase in early 2008 by the Michigan Department of
Natural Resources, the Department of Environmental Quality, and the
City of Benton Harbor, we now know that all but one of the seven
conversion mitigation parcels swapped for JKP land are contaminated.
The very extensive efforts of my clients to piece together the history
and current status of the mitigation parcels from disparate sources
yielded considerable evidence of toxic contamination on 6 of them with
volatile organic chemicals (VOCs), polycyclic aromatic hydrocarbons
(PAHs), and heavy metals, much of which as of the date of this letter
remains unremediated and uncontained in the land and groundwater of
several of the parcels. It bears noting that Harbor Shores is a
“nonliable” party in the chain of title to the mitigation properties,
which means that remediation is neither expected nor required.

The November 2007 Due Care Plan submitted to comply with Part 10
rules - a document never shared with the public before its discovery
by one of the Plaintiffs in December 2008 - delineates the probable
pathways of contamination on all but one of these former industrial
properties.1 So does an April 2007 Earthtech analysis letter. These
are the lands which, the public was told, are supposedly equal or even
superior in quality to the pristine dunes overlooking the Lake
Michigan shoreline within the Park which are being permanently
converted from parkland to golf or other private, commercial use. The
concealment is breathtaking: the Environmental Assessment for the
mitigation properties, which was put up for public review, super-
ficially discloses that mitigation Parcel F is contaminated and that
some protective barrier is anticipated, but the Assessment utterly
omits to mention that 5 of the 6 remaining parcels are polluted, and
includes only an oblique reference to “due care initiatives to be
conducted” concerning Mitigation Parcel H, the keystone of the
developer’s exchange offerings.

Our review of the documentary items which we know to be included

in the Section 404 permit application led us to the realization that
neither the Corps nor the public were privileged to have these
significant facts at hand. The public thus did not have access to
critical disclosures before, during and after the limited window was
open for public participation, and could not meaningfully comment or
oppose the use of these lands to compensate for the loss of the
comparatively-pristine parkland. The Corps accordingly limited its
scope of the project to the impact on wetlands and water courses and
so lacked an adequate perspective of the Park project and the envi-
ronmental tradeoffs which are now being executed.

We believe several important documents (attached to this corres-

pondence) have never been provided the Corps of Engineers. They
variously contain evidence of contamination which was not disclosed in
conformance with NEPA and the regulations requiring notification of
the Corps in the Section 404 permit process:

1
Plaintiffs can find no Due Care analysis for Parcel H, which was the
subject of a consent order with the USEPA and shows as contaminated in the
appraisal.

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 > actual appraisals (not just appraisal summaries) of the miti-
gation parcels, which contain statements about the presence of contam-
ination;
> baseline environmental assessments (BEAs) for the mitigation
parcels, showing extensive chemical and heavy metals contamination;
> handwritten analysis by a Michigan DEQ staffer which suggests
the degree to which there were toxic levels exceeded on the parcels;
> “Documentation of Compliance with the Part 10 Rules,” published
November 2007 by Gannett Fleming consulting firm for mitigation
parcels, detailing many exceedances of regulatory thresholds for VOCs,
PAHs and heavy metals;
> Earthtech letter to the Harbor Shores project manager, 4/5/07;
> Harbor Shores’ comments on the public’s comments, 5/16/08;
> Transcript of public comment hearing, April 2008;
> a Memorandum of Agreement between the City of Benton Harbor and
HSCRI, which mentions contamination and (by inference) the possibility
of radium in an old canal bed which was part of the Park, downstream
from the site of the Aircraft Components facility, which was laced
with radium (http://www.atsdr.cdc.gov/HAC/PHA/michigan/mic_p1.html),
but no testing of the mitigation parcels for radium downstream from
the AC site was done.

A hearing on Plaintiffs’ motion for a temporary restraining order

in the federal suit took place on October 2, 2008. Testimony from the
developer revealed even more information conspicuously absent from the
Section 404 application (and so from NEPA consideration): some 18,000
“net” cubic yards of sand and soil from the existing dune crests
within the Park are to be excavated/or and displaced, possibly removed
entirely from Jean Klock Park, and replaced with unknown volumes of
fill material to halt the natural movement of the dunes so golf tees
and fairways can be built and sodded atop them. Despite repeated
public questioning about excavation activity within the Park, it took
the filing of a federal suit and a TRO hearing to finally extract the
admission that the equivalent of NINE HUNDRED (900) 20-yard dump-truck
loads of sand and earth will be removed. Yet Harbor Shores and Benton
Harbor continue to insist that no significant environmental effects
will occur as a result of the project!

Enclosed is a spreadsheet we have prepared which charts signif-

icant facts about the existing pollution from these documents which
somehow were not provided to the Corps. The public, especially the
children of Benton Harbor and surrounds, will no longer have access to
a large share of the Park, but will be left, instead, to celebrate
recreational nirvana on land polluted with industrial poisons, carcin-
ogens and neurotoxic materials. I stress that these new facts were
gathered by my clients’ painstaking efforts from documents which were
not publicly-available, nor their existence made known, during the
public comment period, when the public might have been able to do
something with the knowledge. The truth about the Jean Klock Park
mitigation lands was compiled by my clients only after NPS and Corps
approval was obtained.

In fact, securing permits after commencing work, if at all, is a

persistent, recurring problem in the ongoing destruction of natural
features in the Park. The Due Care Plan states that mitigation Parcel

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F would require a 2-foot soil cap with an additional 6-inch thick
gravel path as an isolation zone to permanently protect the public
from exposure. It is unclear how this isolation zone will be attained
without the excavation of additional material, since this parcel falls
within not only a flood plain but also within a flood-way, where zero
fill is allowed without mitigation. The Plan requires that care be
taken to not exacerbate the contamination. However, this parcel was
not only cleared of vegetation, but the soil was pushed to the Paw Paw
river’s/wetland’s edge with no silt fencing in place, and was left
with no matting or any type of cover throughout the 2008 fall rains
and the current winter’s snow and meltoff.

HSCRI may have also violated the clearing of trees ahead of the
season for that, and destroyed critical and protected wildlife habi-
tat. Under Part 365 of Michigan’s NREPA statute, which establishes
protections for endangered species, the Indiana Bat is a federally-
endangered animal. To prevent a possible “take” of the animal, there
is a ban on land-clearing activity during the period of April 1
through September 30. My clients know that HSCRI brought in an
extremely large crane in the first week of September 2008 to place a
prefabricated cart bridge at the end of Parcel F. The use of the
crane for this would have been impossible without the clearing of a
very broad path 500 feet long to the site where the bridge was hoisted
into place.

The plans for the golf course irrigation intake pipe and pump
house were not included in the proposal for public comment, even
though the 40 feet of permanent metal sheet piling along the river’s
edge is clearly present on Conversion Mitigation Parcel B. When the
MDEQ was questioned regarding this issue it was too late to move the
already-installed intake pipe, but that the developer would be re-
quired to move the pump house. HSCRI’s contractors undertook this
project without a Soil Erosion and Sediment Permit and in its permit
application to the MDEQ they failed to mention this proposal was in
100-year flood plain, or in a flood-way.

The plans for the stream mitigation for the Sawyer Drain were
also omitted from the proposal made available for public comment under
Section 404. Conditioning the permit from the ACOE was a Final Stream
Mitigation Plan, among other things, which HSCRI believed they had
obtained. However, two months after the ACOE issued the permit, a
revised proposal was submitted and as of December 2008, the Michigan
Department of Fish and Wildlife still had some concerns regarding
sediment and erosion. This stream would cut right across mitigation
Parcel C and would require a conservation easement with a minimum of
30 feet on each side of the stream that could not be disturbed in any
way.

Mitigation Parcel D is highly contaminated and requires an

isolation zone. However, this parcel is also being used as flood plain
mitigation, even though the developer is not only filling flood plain
but wetland as well. None of the agencies seem to have an issue with
that proposal. However it is unclear if this flood plain mitigation
would require a similar conservation easement to that required in
wetland mitigation, therefore no development of the site would be

Page 4 of 5
allowed.

It appears that the contaminated soil excavated from D may have

been used to fill in the wetland. It might be that under Michigan’s
Brownfield Act, adjoining parcels can be combined and soil may be
moved from one parcel to another within the newly-combined area. If
this practice is occurring with the JKP mitigation lands, then con-
taminated soil may be dispersed beyond its home parcel. The work plan
prepared by Gannett Fleming in May 2008 - contemporaneous to the
public comment period - recommended the excavation and removal of
contamin-ated soil. Neither this work plan nor this significant
decision were disclosed to the public.

The golf tees on Hole 7 are being built in the wetland of Jean
Klock Park. The plans required a 3-foot silt fence be placed around
entire area prior to the commencement of work. But HSCRI constructed
their boardwalk cart path first and chose to use that in lieu of
placing mats in the wetland. They did not follow the plans submitted
to the MDEQ or the ACOE. They did not use sheet pile or concrete pile
in their construction. They were required to drive sheet pile, exca-
vate, back fill with sand and compact, place waler [????], pile and
tie back system and back fill with stone and compact, place topsoil
and place geo [???] blocks at approx. 1:3 slope around the perimeter.
What they actually did is dump a mountain of sand directly into the
wetland, drive their machinery on it and drive treated lumber pilings
and planking for the retaining wall and added stone to the mix and
then staked approximately 18-24” silt fencing on top of the overflow
of sand around the perimeter of the tees. This blatantly disregarded
permit terms for protection of the wetland.

The detailed plans for the changes to Jean Klock Park have never
been made public. HSCRI cleared a row of 100-year-old cottonwood trees
and removed sections of a grant-funded boardwalk which the proposal
stated would remain. HSCRI has cut an approximately 100 by 200 foot
section out of the foredunes to place an asphalt parking lot. They
have said they would not touch the west side of the dunes, but that is
obviously not the case. It is impossible not to touch the west side
based on the grade elevations of the dunes, compared to the proposed
parking lots.

There has never been disclosure of how many trees will be removed
from the entire Park, nor how much and what fill will be used to
create the fairways, nor what will be done with the excavated sand.
HSCRI never obtained a Soil Erosion and Sediment Permit to undertake
construction of the parking lot and roadway within 500 feet of Lake
Michigan as required by Michigan environmental law (NREPA).

For all of these reasons, my clients respectfully request that

the Corps of Engineers suspend and investigate further into these
matters, or, preferably, that the agency cancel the Section 404 permit
granted for the destruction and conversion of Jean Klock Park.

Please advise what additional information we might provide.

Thank you.

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