P.O. Box 581, Riverside, MI 49084
December 18, 1997
Dear Mr. Coté:
I am writing to you on behalf of the membership of Preserve the Dunes, Inc. We are a citizens' group comprised of several hundred residents and property owners primarily in Covert Township, Van Buren County, and Hagar Township, Berrien County. Our primary purpose is preservation of sand dune areas in Southwest Michigan. The Legislature has found the critical dunes areas are:
". . . a unique, irreplaceable, and fragile resource that provide significant recreational, economic, scientific, geological, scenic, botanical, educational, agricultural and ecological benefits to the people of this state and to people from other states and countries who visit this resource."
And then directs that
"The benefits derived from alteration, industrial, residential, commercial, agricultural, silvicultural, and the recreational use of critical dune areas shall occur only when the protection of the environment and the ecology of the critical dune areas for the benefit of present and future generations is assured."
We have commissioned an engineering evaluation of the TechniSand, Inc. sand mining operations at the Nadeau Pit and their permit application for expanding the Nadeau Site. The Nadeau Pit is in Covert Township (Van Buren County) west of I-196 and the location of extensive sand dune mining over the past 20 years. The Nadeau Site is in Hagar Township (Berrien County) east of I-196 for which permit application was made last year to expand the area to be mined.
The study noted serious and extensive violations of permit conditions at the Nadeau Pit and raised questions regarding the permit for Nadeau Pit. The report is enclosed.
Nadeau Site Taube Road Extension (Permit No. TS-NS-107)
Application to mine the Taube Road Extension in Hagar Township was made under the 1994 Sand Dune Mining Statute. Section 63702 of the statute allows mining in a Critical Dune Area only if (a)the operator had been mining the site prior to July 1989 or (b)the operator had been mining or permitted to mine an adjacent property in a Critical Dune Area and prior to July 1989 owned the property for which the amended permit is being sought. The law prohibits new mining operations in Critical Dune Areas. The Taube Road Extension includes land in a Critical Dune Area. The Nadeau Site is not in a Critical Dune Area. Therefore the Extension is a new mining operation in a Critical Dune Area. Section 63702 does not allow an operator to come from an area outside the Critical Dune Area and by amendment begin mining in a Critical Dune Area.
Therefore, the permit was issued in error and should be revoked.
Nadeau Pit (Permit No. TS-NP-103A3)
In summary, the engineering report notes the following violations of the conditions of the permit for sand dune mining issued by the Geological Survey Division of the M/DEQ.
1. More than 3 cells are active
The enclosed aerial photograph overlaid with the cell boundaries indicates that 10 of 11 cells can be considered active. Only cell 1 has been reclaimed.
2. There are no interim cells. Reclamation was started on cell 2. However, part of the cell that was underwater is now exposed raw sand with no reclamation efforts. The enclosed table indicates the acreage of each cell and the portion of each stripped of vegetation and portions reclaimed. These areas were measured from the site plan prepared by Manley Bros. and laid over the aerial photograph.
3. The one reclaimed cell is being used for unpermitted activities. Rather than park vehicles in the Plant Area, they are being parked in reclaimed portions of cell 1.
4. Top soil is not being stockpiled and spread over reclaimed areas as stated in the Progressive Cell Unit Mining and Reclamation Plan.
5. Reclamation is not being completed in conformance with the amended Progressive Cell Unit Mining and Reclamation Plan of 1989.
Grasses were used to revegetate portions of cell 2 instead of oaks, beeches and other indigenous trees as proposed in the original cell unit mining and reclamation plan, and instead of pine and poplar trees as proposed in the 1989 amendment.
6. The site has not been secured with a fence. Only small portions of the site perimeter are fenced.
7. The response to my Freedom of Information Act request indicates that no up to date 15 year mining plan fulfilling the requirements of Section 63707 is on file.
8. The response to my Freedom of Information Act request indicates there is no current Part 301 Permit on file with the Land and Water Management Division. According to information provided by that Division, the last permit was issued in 1990 and lapsed in 1993, 4 years ago.
9. According to the Van Buren Conservation District a duplicate copy of the 15 year mining plan is not on file per 63707(2).
These violations are blatant and indicate a continuing disregard for permit requirements by TechniSand. Section 63712 (10) states that "A violation of this section constitutes grounds for revocation of the sand dune mining permit." Clearly, TechniSand is in violation of Section 63712 as noted above in "1", "3", "4" and "5." Furthermore, Section 63714 states that " If the department finds that an operator is not in compliance with this part, the rules promulgated under this part, or a permit issued under this part, the department may suspend or revoke the permit." Accordingly, we request that the sand dune mining permit to TechniSand, Inc. be revoked immediately.
Proposed Changes in Use of Nadeau Pit
In addition to the above concerns regarding Nadeau Pit, the permit application for the "Nadeau Site Taube Road Extension" indicates that sand will be conveyed by truck to the Nadeau Pit for washing and processing. This would be a serious and significant change in the operations at the Nadeau Pit. Processing sand from another site constitutes a land use not permitted by the Covert Township zoning ordinance, as confirmed by the Covert Township Supervisor Jerry Sarno and the Township Attorney Harold Schuitmaker.
It would also be a change from the purpose of the sand dune mining permit and the activities contemplated when the permit was issued.
Furthermore, the Hagar Township zoning ordinance does not permit sand mining in the area where the Nadeau Site is located. This has been confirmed by the Township Board.
Busse Property (Permit No. TS-BP-101-A4)
There are violations at this mine as well.
1. The last amendment was issued to expand the mining operation onto adjacent land owned by Glover Dandridge. In applying for the amendment TechniSand made several misrepresentations, or at least misleading statements.
The application letter dated May 3, 1994 states "TechniSand, Inc. has recently secured an agreement with the landowners, and proprietors of the Blue Star Lounge, ...." The agreement is actually dated July 15, 1994.
They further state "The area to be amended includes 1.02 acres which is owned by Glover Dandridge and Adella Bracken of Covert, Michigan and 1.06 acres which is owned by TechniSand, Inc. The addition of this acreage to Cell 4 will increase the active acreage in Cell 4 from 7.16 acres to 9.24 acres." While the facts are generally true they misled the Division to state on the permit that the Cell was increased to 9.24 acres. In fact, the original permit indicated that the area of Cell 4 was 8.08 acres. The additional area from the adjacent property, assuming 50 foot buffer area is 2.12 acres as drawn (2.33 acres per the conditions of the purchase agreement). Therefore, the area of Cell 4 is actually between 10.20 and 10.41 acres - exceeding the largest cell permitted by law.
Without comment the amendment application letter states that there will be a 50 foot wide buffer around the perimeter of the pit. The buffer at the south end of the pit had been 100 feet. Section 63706 at the time of the permit amendment (September 15, 1994), required a 200 foot deep buffer area unless the Department determined that the sand mining activity was compatible with the adjacent existing land use. The property directly south of the expanded pit is zoned R-1, single family residence and clearly is not a compatible use. No exception in the buffer width should have been made.
2. Reclamation has not been made in accordance with the 1986 amended Progressive Cell Unit Mining and Reclamation Plan. Reclamation was to be a continual process. Top soil was to be removed and spread on to areas where mining had been completed. Trees were to be planted on the stabilized slopes.
3. The response to my Freedom of Information Act request indicates that no up to date 15 year mining plan fulfilling the requirements of Section 63707 is on file.
4. The site is not and has not been fenced.
5. According to the Van Buren Conservation District a duplicate copy of the 15 year mining plan is not on file per 63707(2).
We request your immediate attention to and action upon these matters. I can be reached at the above address, or via fax at (312)922-6056, or email at ___@_________, or by phone during business hours at (312)922-6050.
Sincerely,
Enclosures (3)