More than 3,000 truck-scale records that indicate semi trucks from a Marana trash hauling facility were dangerously and illegally overweight in 2001 have languished for almost two years at the Pima County Attorney's Office without being prosecuted.
The records were compiled by an Arizona Department of Public Safety officer and cover a period through the first nine months of 2001. The officer obtained the records from scales at Waste Management's Marana transfer station, 5400 W. Ina Road.
The overweight trash trucks, with their stability and braking ability compromised by the over loading, traveled on Ina Road and Interstate 10 on their trips north to landfills in Pinal and Maricopa counties. Waste Management managers at the facility estimate an average of 60 truck trips a day left the transfer station during the period covered by the records. The records show some of the trucks weighed more than 100,000 pounds, which was more than 20,000 pounds over the legal limit for those types of trucks.
The company's smaller vehicles that pick up trash at homes and businesses were not involved in the overweight trucking, DPS and Waste Management officials said.
Eric Ickes, the DPS officer who compiled the scale records, said he was unaware of any accidents occurring because of the overweight hauling.
But the lack of accidents from the overloaded semis may be due to good fortune. Gerald Donaldson, senior research director for Advocates for Highway and Auto Safety, a non-profit organization based in Washington, D.C. which lobbies lawmakers on the state and federal level, said overweight trucks damage roads and bridges, take longer to brake and are prone to roll-over accidents.
"When these rigs are over-loaded their usual center of gravity increases - what's called in engineering their roll-moment of inertia - becomes worsened. And when they engage in an emergency maneuver, it increases the instability of the vehicle … it has the tendency to roll the vehicle over," Donaldson said.
The issue of the scale tickets has also surfaced in the federal investigation of Marana Mayor Bobby Sutton, Jr. and businessman Richard "Rick" Westfall, who some sources claim are being retaliated against because Westfall "blew the whistle" on the overweight vehicles. (See related story page 1)
No evidence has emerged that the FBI is investigating the overweight hauling violations, and sources close to the federal probe say the over-loaded trucks are being investigated as a separate issue by the DPS.
The semi trucks were operated by drivers from three subcontracting truck companies working for CSU Transport, a Portage, Ind., firm that contracted directly with Waste Management to haul the bulk loads of trash to Waste Management landfills near Phoenix and Florence.
Duane Woods, Waste Management's vice president and general counsel for the company's Western region, said CSU was replaced as his company's trucking contractor in 2002 by a lower bidder. He believes Waste Management holds no contractual responsibility for the overweight vehicles.
"We're very firm in saying that any driver that left the site would know if they were overweight - If they were overweight - and we definitely feel that's part of the contractor's obligation," Woods said.
Woods also said the scale used for weighing the large, five axle-trucks before they left the Marana transfer station was broken for an unknown period of time in 2001, but has since been repaired.
"(There are) no issues now. We've done a lot of work on the site and it's operating fine. We have a very comprehensive compliance program for all of our subcontract truckers and I think we have it well in hand in terms of maintaining compliance," Woods said.
Gary Goldberg, CSU's president, denied any knowledge of the scale tickets in the Pima County Attorney's office, but ended an interview last week before he could be asked why the overweight hauling occurred.
Westfall, whose company Westfall Transport was participating in the overweight hauling according to the scale records, sued CSU and claimed he was trying to expose the illegal practice.
While both Waste Management and DPS officials say the overweight hauling at the Marana facility has ended, it's unclear which company or companies bear responsibility for past overweight hauling.
It's also uncertain when or if the violations will ever be prosecuted, despite the fact that overweight loads and vehicle registration violations alleged to have been committed by CSU in the Phoenix area were forwarded to the Arizona Attorney General earlier this month by the DPS's Phoenix office.
As of Feb. 9, the overweight violations from Marana had not been forwarded for any consideration of legal action and Pima County and the DPS are still at odds as to who should carry the large stacks of weight records to state investigators.
The Pima County Attorney's Office claims the situation is nothing more than a miscommunication, saying it's the responsibility of the DPS to pick up the records and forward them to the Attorney General and they've failed to do so.
Ickes, the DPS officer that spent weeks building the case, said in an interview in April that no one from the county attorney's office had told the DPS they needed to carry the evidence to the Attorney General, and it would be unusual if they did.
"Why wouldn't they just forward it to the AG themselves?" Ickes said.
The Marana scale records were first passed to the county attorney in April 2002 from the Town of Marana and its municipal court where officials chose not to prosecute the case.
In interviews last year, former Marana Town Manager Mike Hein and former Town Attorney Daniel Hochuli said they transferred the records to Pima County because the town's small court would be overwhelmed by the work of processing so many violations.
According to e-mails and other documents from the county attorney's office, after the scale records were delivered to Pima County prosecutors, the decision was made almost immediately to forward the records to the Arizona Attorney General.
"The DPS has about 1,200 overweight citations on four companies and a total of about 20 drivers. They were contracted to haul trash from Ina Road to Coolidge or someplace," wrote Bruce Chalk in a April 24, 2002 e-mail to Pima County prosecutor Lee Ann Roads.
Chalk is an investigator in the county attorney's office who handles vehicular crimes.
"About 90 percent of the trucks were overweight from 800 pounds to 15,000 pounds - a lot … DPS wants something to happen and they don't want to prosecute 1,200 overweight citations. One of the owners of the company is talking with them," Chalk wrote.
Under Arizona law, a valid scale record is de facto evidence of a violation. Ickes said he forwarded more than 3,000 scale tickets to Pima County, and an inspection of the documents at the county attorney's office by the Northwest EXPLORER confirmed Icke's estimate rather than the 1,200 records cited by Chalk.
An e-mail to Chalk and Roads from former Pima County Chief Criminal Deputy Rick Unklesbay that followed the same day directed the case to be forwarded to the state's attorney general.
Ickes said the "owner of the company" talking to the DPS was Westfall, and that Westfall contacted the state police toward the end of 2001 - before the DPS could contact Westfall.
When asked if Westfall "blew the whistle" on the overweights, Ickes said, "Yeah, in his own way. I don't know if it was blowing the whistle or trying to cover his own butt. Know what I mean? He came in and gave us a bunch of information that we already knew. And that was about it as far as contact with the companies. We just took everything and submitted it, initially, to the Marana court and they submitted it to the county attorney," Ickes said.
Ickes said he "had a feeling" Westfall knew the DPS was investigating the overweight trucks before he came in to talk to officers.
Westfall has repeatedly refused to comment about the FBI or DPS investigations, but in an affidavit given as part of the lawsuit he filed June 12, 2002, he claims he was fired by CSU because he exposed the overweight hauling.
Westfall claims the overweight hauling began around the spring of 2001 and that he talked to Dale DeValk, a CSU manager, about the overweight trucks.
" … CSU began deliberately overloading the trucks, often by several tons. At the time it started happening, I was not aware that it was deliberate. There had been occasional overloads in the past due to problems with the scale at the transfer station. I was later informed by DeValk that it was deliberate, that he had been told by management that he had to show a profit within 60 days and that the only way he could do that was running heavy loads," Westfall said in the April 4 affidavit.
DeValk could not be reached for comment. A person who answered the phone at CSU's Phoenix office said DeValk no longer worked for the company, but refused to provide any further information.
As part of his suit, Westfall also submitted a memo dated June 1, 2001 that he claimed was distributed to the subcontractors and their drivers at the transfer station and shows CSU accepted responsibility for the overweight loads.
"Dear owner-operators of Ina Road," the memo, reportedly signed by DeValk, said. "It is very important to put the correct weights on the load tickets prior to leaving Ina Road Transfer.
CSU Transport, Inc. accepts the responsibility of all overload fines that are incurred to owner operators. As a reminder to drivers, it is not a moving violation and will not go on your record."
Westfall's lawsuit against CSU, which also sought to have Westfall held harmless from any fines that might be incurred because of the overweight loads and included an allegation that CSU wrongfully terminated Westfall's lease, sought an unspecified amount of damages. Westfall offered to settle the case Jan. 6 for $7,000. The case was dismissed Jan. 23 with both sides agreeing to dismiss the suit and pay their own attorney's fees.
Goldberg, CSU's president, said there wasn't much to discuss about Westfall's suit against his company.
"We didn't feel there was really any case there and I think that the way that we settled it proved that out," he said in a Feb. 9 phone interview from Indiana.
When told that Westfall claimed in his affidavit that CSU had knowledge of the overweight trucks, Goldberg claimed he didn't know anything about it.
"Westfall can say whatever he wants. I really don't know anything about that," he said, shortly before he ended the interview. "I don't think I want to rehash this whole thing anymore. I think I've given you enough information on this. As far as CSU is concerned, we're no longer operating in Tucson.
"We did resolve our differences with Westfall in that lawsuit and that is public record and you can get it from there and I don't really want to get into a discussion about Waste Management and who runs what. They're still operating there and you can certainly talk to them or you can talk to the trucker who's operating out of there now, all right?" Goldberg said.
CSU, which still hauls in Phoenix, is being audited by the DPS in that city, said John Stanley, an officer with DPS's commercial vehicle enforcement division in Phoenix. The DPS began a compliance review audit of CSU last year after receiving "internal complaints" from a driver, Stanley said in an interview last week.
That audit, completed in November, involved sifting through more than 20,000 CSU weight records from trash facilities and landfills in and around Phoenix. About 14 percent of the records indicated the company was "not in compliance" with state weight limits.
The audit also found CSU was not registering its Indiana trucks in the state and the company had around $270,000 in registration and highway user fees diverted from Indiana to Arizona by the Arizona Department of Motor Vehicles. The company also underestimated the amount of mileage it traveled on roads in Arizona and paid $60,000 to compensate the state, Stanley said.
A follow-up audit completed earlier this month again went through more than 20,000 scale records and found 4 percent of CSU's trucks were overweight.
"They've got a little better so they're now at about 4 percent. But I'm still doing a case on overweights," Stanley said, adding that the case would probably be handled by a blanket charge of failure to comply with state commercial vehicle laws. He didn't want to speculate if the company would face fines or not, but said it would be handled as a civil action rather than criminal.
The results of the first audit were sent to the Arizona Attorney General last month and that agency will decide what, if any, action the state may take against CSU, Stanley said.
The assistant attorney general assigned to the case could not be reached by press time.
In Pima County, it remains unclear what will become of the overweight records from Marana. In an interview last week, Chalk said he was unsure if he could discuss the case any further.
"They've been sitting here for (almost two) years so it's unclear if it's still active," Chalk said. "But if this is a pending case still under investigation, I wouldn't be able to discuss the details."