09/19/2006

Judge wants state to join suit

By PATRICK SULLIVAN

psullivan@record-eagle.com

BEULAH — A judge said he would ask two state agencies to join a lawsuit over contamination caused by blueberry juice dumped into a gravel pit.

Benzie County Circuit Court Judge James Batzer said the Michigan attorney general and Department of Environmental Quality should intervene in the dispute in response to a motion filed by defendant Graceland Fruit Inc.

Graceland had asked Batzer to dismiss the lawsuit, in part because the company already is negotiating with the state over illegal dumping allegations.

Batzer rejected Graceland's motion, saying it was too early to determine whether the suit has merit.

The lawsuit against Graceland and Bonney Bros. Pumping Co. was filed by Benzie farmer Charles Brozofsky, who alleges his farm and a stream running through it suffered significant damage after Bonney dumped fruit waste from Graceland into a gravel pit uphill from his land.

Ronald DeWaard, attorney for Graceland, argued at a recent hearing that Brozofsky's lawsuit should be dismissed because the company is already negotiating a settlement with the state.

Batzer said it's not clear that Brozofsky has any right to participate in those negotiations.

Batzer also said if the state joined the lawsuit, the companies might avoid having to pay double damages for the same incident — once if the companies agreed to a settlement with the state and a second time if they lost the civil lawsuit.

The settlement between the state and the companies — which the parties have been working on since 2005 after the attorney general rejected a request from the DEQ to pursue criminal charges in the case — may now be in jeopardy.

Both DeWaard and Joseph Quandt, attorney for Bonney Bros., said they didn't want to negotiate with the state as long as the civil lawsuit is pending over an alleged violation of the Liquid Industrial Waste Act.

Graceland also wanted the lawsuit dismissed because, they argued, it was Bonney who dumped the waste in the gravel pit, not Graceland.

Mike Grant, Brozofsky's attorney, argued Graceland should be held liable because they knew Bonney was unlicensed to handle or dispose of the waste.

• Settlement in dumping case may be near - September 15, 2006
• County seeks federal money for wastewater plant - June 24, 2006
• Benzie to learn grant details - April 14, 2006
• Graceland pursues grants - February 14, 2006
• Dumping suit to proceed - December 15, 2005
• Graceland wants lawyers to be quiet - December 11, 2005
• DEQ sought felonies against Graceland, hauler - November 20, 2005
• CEO: Tax shield has nothing to do with pollution - November 20, 2005
• A close look at the DEQ findings - November 20, 2005
• How fruit waste turns a stream orange - November 20, 2005

See related editorial:

• Graceland record isn't worth more largesse - February 23, 2006
• Cox must explain orange creek decisions - November 27, 2005