June 18, 1998

Mr. Russell J. Harding, Director

Department of Environmental Quality

P.O. Box 30473

Lansing, MI 48909-7973

Dear Mr. Harding:

Thank you for your June 8 response to my May 15 letter to Governor Engler regarding issues at three sand dune mines in Covert Township, Van Buren County. We look forward to your item by item response to our observations and findings. Part 301 Permit

I must correct one of your statements. Based on information provided by the Land and Water Management Division, the permit to dredge a lake at the Nadeau Pit expired December 31, 1993, not August of 1995. The permit was issued to Manley Brothers on August 3, 1990. If there is documentation of a later date or of TechniSand ever being issued a permit we would appreciate receiving a copy. Observed Changes at Nadeau Pit

A recent visit to the Nadeau Pit revealed that a number of needed corrections are underway or have been completed. For example,

• The unused/abandoned mining equipment that had been left in reclaimed Cell Unit 1 has been relocated to the plant area.
• About 100 feet of fencing has been added (as your letter indicated) at a popular entry point for ORV's. Make shift fencing has been also added for 6 or 8 feet south of the North Gate.
• Grading and spreading topsoil at the eastern portions of Cell Units 8 (which as far as we are aware has never been put in active status), 7, and 5 is proceeding.

We hope that these actions are an indication that your department is finally beginning to require compliance with the statutes by TechniSand at the Nadeau Pit.

Surveyed Boundaries

We observed that, as reported in your letter, the corners of a number of the Cell Units have been surveyed and marked. We request that the DEQ response to our letter include survey coordinates of the Cell Unit boundaries, and a copy of a scaled site plan indicating the points located by survey and certified by the professional surveyor who conducted the survey. This is very important for several reasons.

• The Cell Unit boundaries in the past have only been lines on a site plan. There is no precedent for the surveyed locations. Without coordinates and a corresponding scaled drawing the surveyed locations become just another version of the site map. With coordinates, these locations can be relocated with precision and areas calculated accurately.
• There are apparent discrepancies between the stake locations and the overlay plans previously prepared by TechniSand and furnished to us under the FOIA by the DEQ. For example, it appears that the boundary between Cell Unit 8 and 2 is at least 50 feet south of that shown on the plans previously submitted by TechniSand, and the boundary between Cell Unit 10 and 3 is an extension of that line.
• In the past TechniSand has misled the DEQ (e.g., when Cell Unit 4 of the Busse Property was enlarged to include adjacent land).
• TechniSand has a poor reputation for honesty and forthrightness. The public does not trust TechniSand.

We also request a copy of the current Progressive Cell Unit Mining and Reclamation Plan. We understand that Amendment 6, dated April 1997 has been rescinded due to the encroachment on the buffer area at the Thunder Mountain Heights property. Furthermore, the Van Buren County Road Commission has notified us that it has rescinded its permission to include portions of the right of way of the Blue Star Highway in the mine site.

Additional Questions

The February 6 response by Mr. Fitch to our December 18, 1997 letter documenting violations raised numerous questions that we hope will be answered in the upcoming response.

1. No conformance bond is required for the Plant Area. Why not? It is 20 acres plus roads and slurry lines. When land was transferred from other Cells to create the Plant Area, the DEQ released this un-reclaimed land from bonding requirements. What assurances does the public have that the operator will reclaimed this area?
2. The DEQ requires that slopes be no steeper than 1:3 as required by amendments to the statute instead of 1:2 allowed when original permit was issued for the mine in 1978. Yet the DEQ does not require that setbacks to be increased to 200 feet as the law requires, even when the Cell Unit boundaries are changed for the convenience of the operator by an amendment to the Progressive Cell Unit Mining & Reclamation Plan. Why not?
3. When a permit is originated, the operator's application includes the Progressive Cell Unit Mining and Reclamation Plan. This plan is discussed at public hearings and is used to "sell" the mining of a site to neighbors. In the plan the operator makes very specific commitments regarding the reclamation of the land. After the permit is issued, the reclamation requirements are continually reduced by agreement between the DEQ and the mine operator without public review and comment. Why is this allowed?
   Special Condition 9 of the permit states "The Department, upon written application from the permittee and a public hearing, may modify or permit variance from the progressive cell unit mining and reclamation plan or special permit conditions if such modification or variance is not contrary to the public interest and in accordance with the Administrative Procedures Act (Act No. 306, P.A. 1969 as amended." We know of no public hearings to revise the PCUMRP. Were they held? If so, where was public notice made? Can we have copies of such notices?
4. In addition to other requirements, 63712(5) requires that no single area of exposed sand shall be greater than 25 square feet, and final grades no steeper than 1:3 must be established in order for a cell to be placed in interim status. Yet the DEQ has accepted a Cell Unit as being in interim status that does not fully comply with these requirements. Why?
5. The DEQ does not require a current Fifteen-year Mining Plan as required by 63704(d) and prescribed by 63707 when permits are issued. Why?
6. As we read the statute, until a Cell Unit becomes active it cannot be used for mining operations. This is further validated by Special Condition 4 which states "The permittee shall confine all vehicles and equipment to the limits of active cell units...." How has TechniSand been allowed to have a roadway through Cell Units 10, 11 and 8 when these Cell Units have never been placed in active status?
7. The DEQ released Cell Unit 2 from conformance bond requirements. It was revegetated with dune grass a number of years ago. The PCUMRP requires trees to be planted. Will the trees ever be planted? If so, what assurances are there?
8. How does the DEQ justify allowing a dredging activity to be carried out when no permit is in effect? Quoting the letter from Mr. Thomas Fette, our attorney, dated May 7 to the Land and Water Management office in Plainwell:

"TechniSand's inland lakes and streams permit expired on December 31, 1993. It did not seek a renewal prior to expiration, but nevertheless continued its activities thereafter. In 1995, some two years after its permit lapsed, TechniSand purportedly made some type of request to the department to extend the expired permit, though we have seen no documentation relating to this request and do not know whether the request was in the form of an application, as is required by Section 30104 of Part 301. The department had at least constructive notice that TechniSand was violating Part 301 as of the end of 1993 and it had actual notice of the violation in 1995, and yet did nothing to enforce the law.

"In a memorandum dated February 6, 1998, to Harold R. Fitch, Chief of the Department's Geological Survey Division, Rodger Whitener and Douglas L. Daniels responded to a letter from Preserve the Dunes, Inc. dated December 18, 1997, which had raised a number of concerns relating to TechniSand's activities. In that memorandum the authors concluded that 'usually, more operations are allowed to continue during the permit renewal process, as long as the company operates in compliance with the previous permit conditions.' The authors also stated 'we believe the operator is allowed to continue to operate under the existing permit until the DEQ takes affirmative action to revoke the permit.' These statements are both factually and legally incorrect. First, there was no permit review process in existence until 1998. During that four year period the Department permitted TechniSand to conduct unpermitted activities. Second, there was no 'existing' permit. It had expired at the end of 1993. Third, and most important, the law does not allow continued operations 'until the DEQ takes affirmative action to revoke the permit.' Section 30107 of Part 301 specifically provides 'a permit is effective until revoked for cause but not beyond its term and may be subject to renewal.' Because a permit is valid only during its term there is no legal justification for the department having allowed operations to continue once the permit expired.

In our view the mandate of the law is clear. The department must immediately order TechniSand to cease and desist any further operation which may effect or enlarge the existing Nadeau Pit pond unless and until a proper permit is issued."

The obligation to acquire a Part 301 Permit is clearly placed on the operator and emphasized in Special Condition 10 of the Permit which states "The permittee shall not remove sand from below the water table at this site, thereby creating a body of water, without obtaining a permit under Part 301 ...."

Finally, we request that the DEQ respond be to our statement sent to Governor Engler and dated May 15 rather than the response dated February 16, 1998. I have enclosed a copy for your use.

Thank you for your attention to these matters.

Sincerely,

 

 

Charles F. Davis, III President

Enclosures

 

cc:

Governor John Engler

The Honorable Harry Gast, State Senator­District 20

The Honorable Robert Brackenridge, State Representative­District 79

The Honorable James Middaugh, State Representative­District 80

Mr. Jerry Sarno, Covert Township Supervisor

Mr. Michael Leffler, Assistant Attorney General

 

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