Preserve the Dunes, Inc.

December 3, 1997
97-041-01

Charles F. Davis, III
Preserve the Dunes, Inc.
P.O. Box 38
Hagar Shores, MI 49039

Technical Review
TechniSand Mining Permits
Nadeau and Taube Road Extension Sites

Dear Mr. Davis:

Harrington Engineering & Construction Inc. (HE&C) presents the results of our technical review of the Michigan Department of Environmental Quality (MDEQ) sand dune mining permit and the local Covert and Hagar Township permits for the above sites. In preparing this report, HE&C reviewed the information supplied by Preserve the Dunes, Inc. (PDI) and other information on the regulations of the MDEQ available on the Internet. The information supplied by PDI or obtained from the Internet includes:

The 1978 Progressive Cell Unit Mining and Restoration Plan and the 1978 Environmental Impact Statement for the Nadeau Pit in Covert Township, Van Burren County.
The amendments and renewals to the Nadeau Pit permit (the most recent is for the period January 1, 1996 through December 31, 2000).
The 1996 permit submittal for the amendment of the Hagar Township site to add the Taube Road Extension to the existing permitted property (including the Fifteen Year Mining Plan, The Progressive Cell Unit Mining and Restoration Plan, and the Environmental Impact Statement).
MDEQ Part 353 Sand Dunes Protection and Management Act (effective 1989).
MDEQ Part 637 Sand Dune Mining Regulations (promulgated 1976, amended 1994).
MDEQ Part 301 of NEPRA (formerly Inland Lakes and Streams Act).
Covert Township Zoning Regulations.
Hagar Township Zoning Regulations (confirmed by telephone to include enforcement of Hagar Township regulations for High Erosion Areas and the MDEQ requirements for Critical Dunes).

The mining of dune sand was first regulated in Michigan by the passage of the 1976 act requiring permits for sand mining. In 1989, the Sand Dunes Protection and Management Act was passed to encourage local zoning authorities to protect "Critical Dunes," as defined by the MDEQ. Local authorities who chose not to adopt regulations equal to or more restrictive than the Michigan State regulations risked having the State take away their zoning authority in the critical dune areas. Covert Township adopted the Stateís recommendations into their zoning ordinance in 1989. In 1994, the Sand Dune Mining Regulation was amended to incorporate the concepts embodied in the 1989 Protection and Management Act.

Technical Assessment of the Permits

The most recent renewal for the Nadeau Pit in Covert Township specifies that the operator must comply with the provisions of the 1994 amended Sand Dune Mining Regulations. Under the 1994 amendment, the operator is allowed to continue mining in a Critical Dune (the Nadeau Pit is in a designated Critical Dune area), since his permit and mining operations predate July 1989. However, he must continue to comply with the MDEQ approved Mining and Restoration Plan and the standard and special conditions of the permit. HE&C's review of the Nadeau Pit Permit indicates the following non-compliance with the permit:

To the best of HE&C's knowledge, TechniSand has never submitted a Fifteen Year Mining Plan to the MDEQ, as required by the 1994 revisions.

The 1994 rules allow a maximum of three active and three interim cells in the sand mine. An active cell is defined as a cell-unit set forth in the mining and reclamation plan in which vegetation and topsoil have been removed in preparation for mining or sand removal has been initiated. An interim cell is defined as a cell in which mining and regrading is complete, vegetation has been planted, the vegetation has germinated or taken root to provide at least 80% coverage, and the restored vegetation has not attained one year of sustained growth. The aerial view of the Nadeau Pit compared to the 1978 Progressive Cell Unit Mining Plan indicates that Cells 3, 4, 5, 6, 7, and 9 are definitely active cells and that Cells 10 and 11 may have some operations on-going that would place them in the active status. In addition, Cells 1 and 2 may be in some partially restored status (there is no record of MDEQ approval as interim status), however, it is difficult to determine the degree of cover in Cell 2 from the aerial photograph and parts of Cell 1 are being used to park site vehicles, which is in violation of the requirements for restored or interim status cells.

The original reclamation plan called for restoration with indigenous species. An August 20, 1987 modification to the plan called for grading of slopes in the mined area, placement of a 2-inch to 6-inch topsoil layer, initial seeding with five species of grass, placement of fertilizer at the rate of 800 pounds per acre, addition of lime, and tree planting to include poplar, pine, and some oak and cherry trees. A commitment by the permittee in 1991 would seem to indicate restoration to dune grass and evergreen seedlings for the plant area. Other documents indicate a request to drop the transplanting of on-site trees as specified in the 1978 restoration plan. The permit record is unclear as to what the present reclamation plan is. The aerial photograph seems to indicate some attempts at restoration in Cells 1 and 2. The exact nature of the restoration is not evident from the photographs.

The aerial photograph also does not indicate any stockpiles of topsoil for restoration, as required in the approved restoration plan.

The mine setback from public roads appears to be less than the 100 feet minimum allowed in the 1978 progressive unit mining plan.

The special permit conditions require a minimum four-foot-high fence. The presence of the fence around the entire site can not be determined from the aerial photograph. There does not appear to be a fence around the area of excavation or the bodies of water at the site.

The Covert Township zoning rules were amended in 1989 to incorporate the Sand Dune Protection and Management Act requirements. The requirements are not retroactive to facilities permitted under prior zoning rules. Several changes in the mining operations have occurred over the years that may constitute a change in zoning requirements, regardless of the mine predating the 1989 amendments. The changes are:

The addition of a new entry road from the site to the Blue Star Highway expands the operation from a single access point as was probably permitted in 1978.
The expansion of the plant area within the sand mine, as permitted by MDEQ on two previous occasions, is a change in land use that probably requires zoning approval.
The movement of sand from another location(s) is a change in use of the property and probably requires a zoning approval.

The site is zoned residential, which is unchanged from its zoning classification when the original mining permit was granted. However, changes in plant operations should require reexamination of the impact in a residential area. For instance, processing sand transported to the Nadeau pit from other sites is a clear change in land use from the originally permitted sand mining operation. Likewise, the expansion of stockpiles and processing area to accommodate sand from other sites is a change in land use. These changes should require a reexamination of the zoning impact in an area zoned residential.

If the Covert Township zoning rules are applied to TechniSand's Nadeau Pit facility, several township requirements would need to be met in addition to the State requirements. First, the 1989 Covert Township zoning rules specifically forbid bringing materials mined outside the limits of the property in question onto the property for the purpose of washing, grading, or further processing. If these rules are applied to the Nadeau Pit, which is in Covert Township, TechniSand's plan to transport sand from the Taube Road Extension in Hagar Township onto the Nadeau Pit property for processing would result in a violation of the zoning rules and, indirectly, a violation of Part 353, Sand Dunes Protection and Management, which places authority with the local zoning commission. Secondly, the Covert Township zoning rules specify that finished slopes of the banks of the excavation must not exceed a slope of five horizontal to one vertical. Other township zoning rules which would need to be followed include the requirement to treat access roads for a distance of 300 feet from the public road to create a dust free environment, as well as the requirement to screen operations, excavation, equipment, and stockpiles from view of adjacent residences and streets.

The permit for the Taube Road Extension in Hagar Township, Berrien County, is prepared to meet the requirements of the revised 1994 Sand Dune Mining Regulations. The permit is an extension of an existing permit for an adjacent property. The Taube Road Extension contains areas that are Critical Sand Dune, as defined by MDEQ. The intention of the permit is to extend the existing permit to the Taube Road Extension and to mine the Critical Dune area within the property. This would seem to be prohibited by Section 63702 of the 1994 Sand Dune Mining Regulations, which prohibit mining of critical dunes unless the permittee already holds a permit in a critical dune area or wishes to expand into an adjacent critical dune area that the permittee already held ownership of or rights to prior to the July 1989 effective date of the regulations. The extension of the Hagar Township permit onto the Taube Road Extension is not from an existing Critical Dune area and is not cause for mining the critical dune on the Taube Road Extension.

Conclusion

The Nadeau Pit does not meet several requirements of the 1978 Progressive Unit Mining and Restoration Plan and the 1994 Regulations for Sand Dune Mining. The key issues are:

There is no 15-Year Mining Plan on file for the mine.
There are more than three active cells at the site.
There are no interim cells at the site.
There are unpermitted activities in the single cell which appears to be restored.
There is no four foot high fence around excavations and open water.
The land use as a processing plant for off-site sand may not be a zoned land use.

The Taube Road Site is permitted under the concept of extending an existing permit from a non-critical dune area into a critical dune area. The 1994 Sand Dune Mining Regulations permit mining in a critical dune area only when the expansion is from an existing critical dune area into another adjacent critical dune area.

The remaining volume of sand for mining in the Nadeau Pit is low. The permittee appears to be converting the mine to other uses to support other area sand mining operations. These changes in land use justify zoning review and a concern for proper restoration of the previously mined areas as the mine nears the end of its economically useful life. The MDEQ is not enforcing the restoration requirements of the existing mine permit and the 1994 Sand Dune Mining Regulations.

If you have any questions, please call me at (219) 926-5508.

Very truly yours,

Timothy J. Harrington, P.E.
Michigan PE #27309

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