Preserve the Dunes, Inc.

Nadeau Site, Hagar Township

Preserve the Dunes, Dec.18, 1997

MDEQ, Feb 10, 1998

Preserve the Dunes Feb. 18, 1998
May 15 Revisions in RED

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.

Section 63702 of Part 637, Sand Dune Mining, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended (NREPA) does state "the department shall not issue a sand dune mining permit within a critical dune area"; however, the statute continues with the language, "except under either of the following circumstances."

Please remember one of the basic principles the Department of Environmental Quality (DEQ) utilizes in the enforcement of Part 637 of the NREPA. When a permit is issued to a sand dune mining operator the permit covers all of the contiguous acreage owned or leased by the operator. This position of issuing only one permit on contiguous property extends to when an operator acquires or leases additional property after the original permit is issued. The issuance of the permit on all contiguous property is done to be consistent with the intent of the original 1978 legislation of "limiting disturbance" within designated sand dune areas. By issuing only one permit for all contiguous acreage the mining company is limited to three active cell units at any one time, TechniSand (formerly Manley Brothers of Indiana) purchased the property that constitutes the Taube Road Extension from two private individuals in 1981. Then in 1985 TechniSand purchased the existing permitted site, the Nadeau Site, from the Unimin Corporation. When this second acquisition occurred TechniSand had one option, to seek an amendment to the existing permit for the Nadeau Site. Both of the transactions occurred prior to July 5, 1989 when the Critical Dune amendments became effective and; therefore, provided TechniSand the exemption under Section 63702(1)(b).

Our position and interpretation of the law remains unchanged. We have consulted with one of the drafters of this section and it is his recollection that the intent was to not allow an operator to extend from a non-critical dune area into an adjacent critical dune area. The DEQ has chosen to interpret the statute differently. The courts may have to decide whether one can begin strip mining a virgin critical dune because one has been permitted to mine adjacent land that is not in a critical dune.

Regarding the specifics of the GSD response, we have a copy of the Warranty Deed dated July 31, 1991 by which TechniSand, Inc. bought the Nadeau Site from Manley Bros. of Indiana, Inc. TechniSand acquired the land two years after the July 5, 1989 effective date for the critical dune legislation.

Condition (b) of 324.63702 allows expansion in a critical dune area when "the operator holds a permit issued pursuant to section 63704 and is seeking to amend the mining permit to include land that is adjacent to the property the operator is permitted to mine, and prior to July 5, 1989 the operator owned the land or owned the rights to mine dune sand in the land for which the operator seeks an amended permit."

This is a limited right to expand sand mining - limited to land owned by the operator prior to July 5, 1989. TechniSand, the operator, did not own the land prior to the effective date of the statute and hence cannot amend its permit to include a critical dune.

For both or either of these reasons the permit was issued in error and should be revoked.

**Nadeau Site, Hagar Township**
Preserve the Dunes, Dec.18, 1997	MDEQ, Feb 10, 1998	Preserve the Dunes Feb. 18, 1998 May 15 Revisions in RED
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.	Section 63702 of Part 637, Sand Dune Mining, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended (NREPA) does state "the department shall not issue a sand dune mining permit within a critical dune area"; however, the statute continues with the language, "except under either of the following circumstances." Please remember one of the basic principles the Department of Environmental Quality (DEQ) utilizes in the enforcement of Part 637 of the NREPA. When a permit is issued to a sand dune mining operator the permit covers all of the contiguous acreage owned or leased by the operator. This position of issuing only one permit on contiguous property extends to when an operator acquires or leases additional property after the original permit is issued. The issuance of the permit on all contiguous property is done to be consistent with the intent of the original 1978 legislation of "limiting disturbance" within designated sand dune areas. By issuing only one permit for all contiguous acreage the mining company is limited to three active cell units at any one time, TechniSand (formerly Manley Brothers of Indiana) purchased the property that constitutes the Taube Road Extension from two private individuals in 1981. Then in 1985 TechniSand purchased the existing permitted site, the Nadeau Site, from the Unimin Corporation. When this second acquisition occurred TechniSand had one option, to seek an amendment to the existing permit for the Nadeau Site. Both of the transactions occurred prior to July 5, 1989 when the Critical Dune amendments became effective and; therefore, provided TechniSand the exemption under Section 63702(1)(b).	Our position and interpretation of the law remains unchanged. We have consulted with one of the drafters of this section and it is his recollection that the intent was to not allow an operator to extend from a non-critical dune area into an adjacent critical dune area. The DEQ has chosen to interpret the statute differently. The courts may have to decide whether one can begin strip mining a virgin critical dune because one has been permitted to mine adjacent land that is not in a critical dune. Regarding the specifics of the GSD response, we have a copy of the Warranty Deed dated July 31, 1991 by which TechniSand, Inc. bought the Nadeau Site from Manley Bros. of Indiana, Inc. TechniSand acquired the land two years after the July 5, 1989 effective date for the critical dune legislation. Condition (b) of 324.63702 allows expansion in a critical dune area when "the operator holds a permit issued pursuant to section 63704 and is seeking to amend the mining permit to include land that is adjacent to the property the operator is permitted to mine, and prior to July 5, 1989 the operator owned the land or owned the rights to mine dune sand in the land for which the operator seeks an amended permit." This is a limited right to expand sand mining - limited to land owned by the operator prior to July 5, 1989. TechniSand, the operator, did not own the land prior to the effective date of the statute and hence cannot amend its permit to include a critical dune. For both or either of these reasons the permit was issued in error and should be revoked.

Nadeau Pit, Covert Township

Preserve the Dunes,Dec.18, 1997

MDEQ, Feb 10, 1998

Preserve the Dunes Feb. 18, 1998
May 15 Revisions in RED

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.

1. "More than 3 cells active."

We have examined the aerial photograph and overlay that you provided with your letter and find the following problems with your determination that 10 of the 11 cell units at this site are active. Your aerial photo is taken at an oblique angle which elongates the scale from north to south. The cell unit configuration you used is not correct. On January 14, 1998, TechniSand had the site flown by an aerial photography firm with proper flight controls and then prepared an overlay which depicts the current topography, vegetation, roads, buildings, etc. We have utilized this aerial photo and conducted an on-site inspection and verified the current site conditions as:

Active Cell Units - Cell Units 6, 7, and 9
Interim Cell Units - Cell Unit 3
Released Cell Units - Cell Units 1, 2, 4, and 5
Not Active - Cell Units 8, 10, 11, and 12 (west side of Blue Star Hwy.)

1. More than 3 cells are active

The memo states that "The cell unit configuration you used is not correct." The boundaries were taken from information provided to us by the DEQ in response to a FOIA request, TechniSand's drawing incorporated in their PCUMRP latest revision November 1993. After two more requests we were provided with Amendments 5 and 6 to the permit which modified the Cell Unit boundaries.

We also requested under the FOIA a copy of the map and overlay prepared by TechniSand. While our photograph did not have ground controls it is generally correct. We have reviewed the map and overlay. For the most part, it confirms our original findings as described below.

We understand that the PCUMRP was amended to create a "Plant Area" for use in washing and storing sand. Otherwise, a cell is in one of four states.

Inactive: Untouched
Interim Status: A cell has been mined and all mining activity has been completed. It has been graded to slope not exceeding 1:3. It has been revegetated per the PCUMRP and is in the first year of growth. Vegetation must have taken root to cover 80% of the areas disturbed by sand mining and no single area exposed to the elements is greater than 25 square feet. All mining equipment has been removed except a roadway, conveyor or slurry pipeline may be maintained and considered part of the plant site.
Fully reclaimed or "released" (from conformance bond): The plant material has sustained itself for one year. There are no areas where the survival rate is less than 80% in any 10' x 10'.
Active: Any cell not in one of the classifications above (other than as part of the plant site), but generally, a cell unit being mined or used for mining activity.

Through aerial photographs and an onsite inspection we have made the following observations.

Cell 1 has mining extraction and processing equipment stored in the southwest corner. (See photograph on page 11.) The eastern portion of the cell had been underwater. That portion is no longer under water and is raw sand. Therefore, it must be considered active.

Cell 2 was revegetated with grass along the west slope. A road runs through the cell. By amendment part of the cell was added to Plant Area. The eastern portion of the cell had been underwater. That portion is no longer under water and is raw sand. Therefore, it must be considered active. Though years have passed since the grass was planted, still no trees and shrubs have yet been planted.
Cell 3 was graded, revegetated and placed in interim status according to the DEQ. However, the northern portion was being mined in November 1997. See photo on next page. The vegetation has taken root on much less than 80% of the land disturbed by mining and there are large areas of bare sand. Furthermore, the slopes at the edge of the water are greater than 1:3. Therefore, it must be considered active.
Disturbed areas in Cell 4 were left under-water or added by amendment to the plant area. The eastern portion is no longer underwater, but is exposed sand. Therefore, it must be considered active.
Cell 5 may be similar to 4 or it was released in error since at least an acre is raw sand. In addition the slopes at the edge of the water are greater than 1:3. Therefore, it must be considered active.
Cell 6 is active per DEQ.
Cell 7 is active per DEQ.
Cell 8 has bare exposed sand in the north eastern portion. Therefore, it must be considered active. Furthermore, it has a haul road through it which is prohibited by Special Condition 4 of the permit.
Cell 9 is active per DEQ.
Cell 10 is not active. However, an onsite visit indicates that a road has been used to move tracked vehicles to and from the active mining areas in Cell 9 from Cell 11 in violation of Special Condition 4.
Cell 11 is active. Top soil has been stripped from areas. An onsite visit indicates that a road has been used to move tracked vehicles to and from the active mining areas in Cell 9. If not active, this is a violation of Special Condition 4. See page 11, item 2.

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.
2. "There are no interim cells."

There is one cell unit at this site in interim Status. Cell Unit 3 was placed in Interim Status on May 27, 1997. The cell unit was mined, regraded, and planted as of the site inspection conducted on March 4, 1997. The cell unit will remain fully bonded until such time it is released.

2. There are no interim cells. Cell Unit 3 was being mined early November when our first aerial photophaphs were made. See the closeup of that activity below. We have also confirmed that grading and revegetation of the cell have not been completed. It is still in active status since it does not meet the criteria for interim status.

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.
3. "The one reclaimed cell is being used for unpermitted activities."

We conducted a site inspection and could not find any area within Cell Unit 1 that is being utilized for parking cars. Since the aerial photo you have utilized does not depict an accurate boundary for the cell units it is possible the vehicles you believe are being parked within Cell Unit 1 are actually within the designated plant area.
3. We agree that there are no vehicles parked in the reclaimed area of Cell Unit 1. Per our eMail of January 30 we stated that what we had originally thought were vehicles is actually abandoned equipment. The discussion under "Additional Comments" on page 11 documents this and consequently our conclusion is accurate: The one reclaimed cell is being used for unpermitted activities.

4. Top soil is not being stockpiled and spread over reclaimed areas as stated in the Progressive Cell Unit Mining and Reclamation Plan.
4. "Topsoil is not being stockpiled and spread over reclaimed areas.

We disagree with your statement. There is currently topsoil stockpiled in the east end of Cell Unit 6 and the south-west portion of Cell Unit 7. These topsoil stockpile areas are evident on both the aerial photo which you have utilized and the aerial photo flown on January 14, 1998. There have been many topsoil stockpiles created and then utilized for reclamation over the life of this mining operation, which is exactly what the Progressive Cell Unit Mining and Reclamation Plan (PCUMRP) requires.
4. The "top soil" in the east end of Cell Unit 6 is simply a pile of fine brown sand. A search of the south-west portion of Cell Unit 7, revealed no stockpiled top soil.

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.

5. "Reclamation is not being completed in conformance with the amended Progressive Cell Unit Mining and Reclamation Plan of 1989."

The PCUMRP does not prohibit the use of other types of plant material in the stabilization and revegetation of disturbed areas. Grasses are essential to the success of woody vegetation and should not be planted at the same time. The ideal method to ensure the survival of the woody species is to first stabilize the disturbed area with grasses and then come back and plant the trees and shrubs later. This is exactly what the operator is doing at this site.
5. Our observation stands that reclamation is not being completed in conformance with the amended Progressive Cell Unit Mining and Reclamation Plan of 1989. Cell Unit 2 has been classified "released" for a number of years. Yet, the slope has had only a few trees planted at the very top of the slope. It is still just a grassy slope. By releasing it, the DEQ has said that it is fully reclaimed. It is not.

6. The site has not been secured with a fence. Only small portions of the site perimeter are fenced.

6. "The site has not been secured with a fence,"

Special permit condition No. 1 does state, "The permittee shall install and maintain fencing... in a manner restricting pedestrian access ...." this special permit condition does not mean the entire mining operation should be fenced. We require the operator to install sufficient fencing It and signs to achieve the intent of the permit condition, which is to restrict pedestrian access. The permit condition addresses two concerns: one to provide for public safety and two to prevent disturbance of reclaimed areas. The operator at this site has installed sufficient fencing and signs to deter pedestrian access to the site.

6. Fencing and signage is inadequate to restrict pedestrian and off road vehicle access. The property line at the Blue Star Highway has under 1,000 feet of fencing. This leaves about 4,400 feet open. Signage is sporadic. At the south side of the north gate, there is a space wide enough to drive a car through. There is no sign at or near the gate. This clearly not adequate.

Furthermore Special Permit Condition Nº 3 requires that the operator prevent access by off road vehicles (ORV's). There is evidence of regular, repeated access being made by ORV's. (See the photograph on the left of a road where the dune has been eaten away by trucks and ORV's trying to scale the side of a steep dune in Cell 10. Also see the photograph of the ORV on top of one of the stripped dunes in Cell 9.) About 100 feet of fence was added the week of April 6.

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.

7. "No up to date 15 year mining plan."

The 15 year mining plan required by Section 63709 of Part 837 of the NREPA is language from the original statute, enacted by the legislature in 1976. The 15 year mining plan requirement is directed at a mining company and is intended to depict the company's plans for mining on all of their properties. If a company only operates one mining site then the 15 year mining plan does only address one mining site. However, the reason for requiring the 15 year, mining plan was so the DEQ will know what sites are being mined and what sites may be mined in the future, i.e. where applications for new permits may be requested. The law does not require any updating of a company's 15 year mining plan.

7. Section 63704 states "(2)Prior to receiving a permit from the department, a person or operator shall submit all of the following: .... (d) A 15-year mining plan as prescribed by Section 63707." This means that with each permit application, a 15-year mining plan must be submitted. It would seem obvious that a plan for the next 15 years is required - not one for some 15 years in the past.

Furthermore, not requiring an updated plan is unreasonable. A permit is originally issued only after public hearings. One of the issues addressed in an environmental impact statement is the amount of truck traffic, noise and activity that is expected. It was estimated in 1978 that 400,000 tons of sand per year would be mined at the Nadeau Pit. If the operator is now removing 1,000,000 tons in a year this would be a very significant increase and worsens the environmental impact. It effects life safety. It effects the wear and tear on roads. It effects the quality of life by increasing the noise level. The GSD is derelict in its duty to the taxpayers and citizens of the state by failing to manage the level of activity at a sand dune mine. Therefore, we maintain there is no up to date 15 year mining plan fulfilling the requirements of Section 63707.

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.

8. "No current Part 301 Permit on file."

Part 301, Inland Lakes and Streams of the NREPA is administered by the DEQ's, Land and Water Management Division (LWMD). You are correct the Inland Lakes and Streams permit did lapse in 1993. However, the permit has not been renewed in part because of a shortage of staff in the LWMD. The company has submitted a request for renewal of their Part 301 permit to the LWMD which is pending. Usually normal operations are allowed to continue during the permit renewal process, as long as the company operates in compliance with the previous permit Conditions.

8. The company has been operating without a permit for four years. The permit application was not filed until January 27, 1998. This is six weeks after we notified the DEQ and by copy, TechniSand. Shortage of staff in the LWMD has had nothing to do with any delay so far in securing a permit. This is not a usual situation. Allowing dredging operations to continue when a permit is not in effect makes a mockery of the law. It also indicates how little importance TechniSand places on compliance with the law. By allowing the permit to lapse, TechniSand has opened the permit up for a complete reassessment, which is very necessary to ensure that Rogers Creek and the ground water supply to adjoining properties are protected. Dredging should be halted until a full and detailed review of the permit application has been completed.

9. According to the Van Buren Conservation District a duplicate copy of the 15 year mining plan is not on file per 63707(2).

9. "A duplicate copy of the 15 year mining plan is not on file, with the VanBuren Conservation District, per 63707(2)."

The 15 year mining plan for this site was prepared and submitted by the original Manley Brothers of Indiana in February 1978. A public hearing on the "Intent to Issue a Permit" was held on February 20, 1979 at the Berrien County Courthouse. It is the practice of the Department to make available all documents prepared by the applicants for a permit at several locations including the local area prior to the public hearing. The Notice of Public Hearing indicates we did make the documents available at the County Clerk's office for VanBuren County from February 8, 1979 to March 9, 1979. We would have provided the same information to all other interested agencies, including the Soil Conservation Districts, at that time. Our records do not verify, by specific correspondence, that we did send the documents to the VanBuren County Soil Conservation District; therefore you may be correct in this allegation.

9. No further comment, except that it is the responsibility of the sand dune mine operator, not the DEQ, to file with the Conservation District.

**Nadeau Pit, Covert Township**
Preserve the Dunes,Dec.18, 1997	MDEQ, Feb 10, 1998	Preserve the Dunes Feb. 18, 1998 May 15 Revisions in RED
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.	1. "More than 3 cells active." We have examined the aerial photograph and overlay that you provided with your letter and find the following problems with your determination that 10 of the 11 cell units at this site are active. Your aerial photo is taken at an oblique angle which elongates the scale from north to south. The cell unit configuration you used is not correct. On January 14, 1998, TechniSand had the site flown by an aerial photography firm with proper flight controls and then prepared an overlay which depicts the current topography, vegetation, roads, buildings, etc. We have utilized this aerial photo and conducted an on-site inspection and verified the current site conditions as: Active Cell Units - Cell Units 6, 7, and 9 Interim Cell Units - Cell Unit 3 Released Cell Units - Cell Units 1, 2, 4, and 5 Not Active - Cell Units 8, 10, 11, and 12 (west side of Blue Star Hwy.)	1. More than 3 cells are active The memo states that "The cell unit configuration you used is not correct." The boundaries were taken from information provided to us by the DEQ in response to a FOIA request, TechniSand's drawing incorporated in their PCUMRP latest revision November 1993. After two more requests we were provided with Amendments 5 and 6 to the permit which modified the Cell Unit boundaries. We also requested under the FOIA a copy of the map and overlay prepared by TechniSand. While our photograph did not have ground controls it is generally correct. We have reviewed the map and overlay. For the most part, it confirms our original findings as described below. We understand that the PCUMRP was amended to create a "Plant Area" for use in washing and storing sand. Otherwise, a cell is in one of four states. Inactive: Untouched Interim Status: A cell has been mined and all mining activity has been completed. It has been graded to slope not exceeding 1:3. It has been revegetated per the PCUMRP and is in the first year of growth. Vegetation must have taken root to cover 80% of the areas disturbed by sand mining and no single area exposed to the elements is greater than 25 square feet. All mining equipment has been removed except a roadway, conveyor or slurry pipeline may be maintained and considered part of the plant site. Fully reclaimed or "released" (from conformance bond): The plant material has sustained itself for one year. There are no areas where the survival rate is less than 80% in any 10' x 10'. Active: Any cell not in one of the classifications above (other than as part of the plant site), but generally, a cell unit being mined or used for mining activity. Through aerial photographs and an onsite inspection we have made the following observations. Cell 1 has mining extraction and processing equipment stored in the southwest corner. (See photograph on page 11.) The eastern portion of the cell had been underwater. That portion is no longer under water and is raw sand. Therefore, it must be considered active. Cell 2 was revegetated with grass along the west slope. A road runs through the cell. By amendment part of the cell was added to Plant Area. The eastern portion of the cell had been underwater. That portion is no longer under water and is raw sand. Therefore, it must be considered active. Though years have passed since the grass was planted, still no trees and shrubs have yet been planted. Cell 3 was graded, revegetated and placed in interim status according to the DEQ. However, the northern portion was being mined in November 1997. See photo on next page. The vegetation has taken root on much less than 80% of the land disturbed by mining and there are large areas of bare sand. Furthermore, the slopes at the edge of the water are greater than 1:3. Therefore, it must be considered active. Disturbed areas in Cell 4 were left under-water or added by amendment to the plant area. The eastern portion is no longer underwater, but is exposed sand. Therefore, it must be considered active. Cell 5 may be similar to 4 or it was released in error since at least an acre is raw sand. In addition the slopes at the edge of the water are greater than 1:3. Therefore, it must be considered active. Cell 6 is active per DEQ. Cell 7 is active per DEQ. Cell 8 has bare exposed sand in the north eastern portion. Therefore, it must be considered active. Furthermore, it has a haul road through it which is prohibited by Special Condition 4 of the permit. Cell 9 is active per DEQ. Cell 10 is not active. However, an onsite visit indicates that a road has been used to move tracked vehicles to and from the active mining areas in Cell 9 from Cell 11 in violation of Special Condition 4. Cell 11 is active. Top soil has been stripped from areas. An onsite visit indicates that a road has been used to move tracked vehicles to and from the active mining areas in Cell 9. If not active, this is a violation of Special Condition 4. See page 11, item 2.
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.	2. "There are no interim cells." There is one cell unit at this site in interim Status. Cell Unit 3 was placed in Interim Status on May 27, 1997. The cell unit was mined, regraded, and planted as of the site inspection conducted on March 4, 1997. The cell unit will remain fully bonded until such time it is released.	2. There are no interim cells. Cell Unit 3 was being mined early November when our first aerial photophaphs were made. See the closeup of that activity below. We have also confirmed that grading and revegetation of the cell have not been completed. It is still in active status since it does not meet the criteria for interim status.
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.	3. "The one reclaimed cell is being used for unpermitted activities." We conducted a site inspection and could not find any area within Cell Unit 1 that is being utilized for parking cars. Since the aerial photo you have utilized does not depict an accurate boundary for the cell units it is possible the vehicles you believe are being parked within Cell Unit 1 are actually within the designated plant area.	3. We agree that there are no vehicles parked in the reclaimed area of Cell Unit 1. Per our eMail of January 30 we stated that what we had originally thought were vehicles is actually abandoned equipment. The discussion under "Additional Comments" on page 11 documents this and consequently our conclusion is accurate: The one reclaimed cell is being used for unpermitted activities.
4. Top soil is not being stockpiled and spread over reclaimed areas as stated in the Progressive Cell Unit Mining and Reclamation Plan.	4. "Topsoil is not being stockpiled and spread over reclaimed areas. We disagree with your statement. There is currently topsoil stockpiled in the east end of Cell Unit 6 and the south-west portion of Cell Unit 7. These topsoil stockpile areas are evident on both the aerial photo which you have utilized and the aerial photo flown on January 14, 1998. There have been many topsoil stockpiles created and then utilized for reclamation over the life of this mining operation, which is exactly what the Progressive Cell Unit Mining and Reclamation Plan (PCUMRP) requires.	4. The "top soil" in the east end of Cell Unit 6 is simply a pile of fine brown sand. A search of the south-west portion of Cell Unit 7, revealed no stockpiled top soil.
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.	5. "Reclamation is not being completed in conformance with the amended Progressive Cell Unit Mining and Reclamation Plan of 1989." The PCUMRP does not prohibit the use of other types of plant material in the stabilization and revegetation of disturbed areas. Grasses are essential to the success of woody vegetation and should not be planted at the same time. The ideal method to ensure the survival of the woody species is to first stabilize the disturbed area with grasses and then come back and plant the trees and shrubs later. This is exactly what the operator is doing at this site.	5. Our observation stands that reclamation is not being completed in conformance with the amended Progressive Cell Unit Mining and Reclamation Plan of 1989. Cell Unit 2 has been classified "released" for a number of years. Yet, the slope has had only a few trees planted at the very top of the slope. It is still just a grassy slope. By releasing it, the DEQ has said that it is fully reclaimed. It is not.
6. The site has not been secured with a fence. Only small portions of the site perimeter are fenced.	6. "The site has not been secured with a fence," Special permit condition No. 1 does state, "The permittee shall install and maintain fencing... in a manner restricting pedestrian access ...." this special permit condition does not mean the entire mining operation should be fenced. We require the operator to install sufficient fencing It and signs to achieve the intent of the permit condition, which is to restrict pedestrian access. The permit condition addresses two concerns: one to provide for public safety and two to prevent disturbance of reclaimed areas. The operator at this site has installed sufficient fencing and signs to deter pedestrian access to the site.	6. Fencing and signage is inadequate to restrict pedestrian and off road vehicle access. The property line at the Blue Star Highway has under 1,000 feet of fencing. This leaves about 4,400 feet open. Signage is sporadic. At the south side of the north gate, there is a space wide enough to drive a car through. There is no sign at or near the gate. This clearly not adequate. Furthermore Special Permit Condition Nº 3 requires that the operator prevent access by off road vehicles (ORV's). There is evidence of regular, repeated access being made by ORV's. (See the photograph on the left of a road where the dune has been eaten away by trucks and ORV's trying to scale the side of a steep dune in Cell 10. Also see the photograph of the ORV on top of one of the stripped dunes in Cell 9.) About 100 feet of fence was added the week of April 6.
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.	7. "No up to date 15 year mining plan." The 15 year mining plan required by Section 63709 of Part 837 of the NREPA is language from the original statute, enacted by the legislature in 1976. The 15 year mining plan requirement is directed at a mining company and is intended to depict the company's plans for mining on all of their properties. If a company only operates one mining site then the 15 year mining plan does only address one mining site. However, the reason for requiring the 15 year, mining plan was so the DEQ will know what sites are being mined and what sites may be mined in the future, i.e. where applications for new permits may be requested. The law does not require any updating of a company's 15 year mining plan.	7. Section 63704 states "(2)Prior to receiving a permit from the department, a person or operator shall submit all of the following: .... (d) A 15-year mining plan as prescribed by Section 63707." This means that with each permit application, a 15-year mining plan must be submitted. It would seem obvious that a plan for the next 15 years is required - not one for some 15 years in the past. Furthermore, not requiring an updated plan is unreasonable. A permit is originally issued only after public hearings. One of the issues addressed in an environmental impact statement is the amount of truck traffic, noise and activity that is expected. It was estimated in 1978 that 400,000 tons of sand per year would be mined at the Nadeau Pit. If the operator is now removing 1,000,000 tons in a year this would be a very significant increase and worsens the environmental impact. It effects life safety. It effects the wear and tear on roads. It effects the quality of life by increasing the noise level. The GSD is derelict in its duty to the taxpayers and citizens of the state by failing to manage the level of activity at a sand dune mine. Therefore, we maintain there is no up to date 15 year mining plan fulfilling the requirements of Section 63707.
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.	8. "No current Part 301 Permit on file." Part 301, Inland Lakes and Streams of the NREPA is administered by the DEQ's, Land and Water Management Division (LWMD). You are correct the Inland Lakes and Streams permit did lapse in 1993. However, the permit has not been renewed in part because of a shortage of staff in the LWMD. The company has submitted a request for renewal of their Part 301 permit to the LWMD which is pending. Usually normal operations are allowed to continue during the permit renewal process, as long as the company operates in compliance with the previous permit Conditions.	8. The company has been operating without a permit for four years. The permit application was not filed until January 27, 1998. This is six weeks after we notified the DEQ and by copy, TechniSand. Shortage of staff in the LWMD has had nothing to do with any delay so far in securing a permit. This is not a usual situation. Allowing dredging operations to continue when a permit is not in effect makes a mockery of the law. It also indicates how little importance TechniSand places on compliance with the law. By allowing the permit to lapse, TechniSand has opened the permit up for a complete reassessment, which is very necessary to ensure that Rogers Creek and the ground water supply to adjoining properties are protected. Dredging should be halted until a full and detailed review of the permit application has been completed.
9. According to the Van Buren Conservation District a duplicate copy of the 15 year mining plan is not on file per 63707(2).	9. "A duplicate copy of the 15 year mining plan is not on file, with the VanBuren Conservation District, per 63707(2)." The 15 year mining plan for this site was prepared and submitted by the original Manley Brothers of Indiana in February 1978. A public hearing on the "Intent to Issue a Permit" was held on February 20, 1979 at the Berrien County Courthouse. It is the practice of the Department to make available all documents prepared by the applicants for a permit at several locations including the local area prior to the public hearing. The Notice of Public Hearing indicates we did make the documents available at the County Clerk's office for VanBuren County from February 8, 1979 to March 9, 1979. We would have provided the same information to all other interested agencies, including the Soil Conservation Districts, at that time. Our records do not verify, by specific correspondence, that we did send the documents to the VanBuren County Soil Conservation District; therefore you may be correct in this allegation.	9. No further comment, except that it is the responsibility of the sand dune mine operator, not the DEQ, to file with the Conservation District.

Additional Comments, Nadeau Pit

Preserve the Dunes, Jan 30, 1998

MDEQ, Feb 10, 1998

Preserve the Dunes Feb. 18, 1998
May 15 Revisions in RED

1. We have been informed that sand has been brought in from other mines for washing at the Nadeau Pit. This has never been mentioned in any permit applications to the Geological Survey Division or to the Land and Water Management Division. The operation increases the demands for ground water. This additional use of ground water was never analyzed in the environmental impact study. Nor were the impacts of additional truck traffic addressed. Futhermore, processing of sand from other sites is against the zoning ordinance of Covert Township. This practice should be stopped or the permitting process should be reopened to consider the impacts of these operations. Public hearings need to be held before these operations are included in the sand dune mining permit.

1. "Sand has been brought in from other mines for washing at the Nadeau Pit."

Sand is not being brought into the Nadeau Pit from an off-site source and then processed utilizing the wash plant at this site. In order to process sand from an off-site source the company would need a means to off load the sand from trucks, place the sand on a conveyor system, and then introduce the sand into the wash operation through the slurry pipeline system. There are no facilities at this site to accommodate this type of activity.

However, a sand dune mining operation that provides sand for the foundry industry must create a final product which meets the specifications of the customer. There are very few sand mining operations that are able to produce a final product for their customer without blending sands from other sources. Therefore, bringing sand from other sources is both a common practice and an essential practice to the sand dune mining companies which produce foundry sand. A sand dune permit issued under Part 637 of the NREPA regulates the mining and reclamation of sand from the site under permit, it does not regulate the processing of other sands which is necessary to create a saleable product. The blending of sand from off-site sources is not a violation of the law or the permit. The processing of the additional sand brought in from off-site sources does not increase the demands for ground water. The wash operation at this site utilizes water totally contained within the boundaries of the mining site. The wash operation is not consumptive, the water is recirculated and remains on site.

1. Sand has been brought in from other mines for processing at Nadeau Pit. We base this statement on a copy of a letter from John Crow attorney for TechniSand, Inc. to Harold Schuitmaker attorney for Covert Township, dated June 1,1995 in which he states "this is to advise that TechniSand, Inc. has its processing plant in Section 36, between Blue Star Memorial Highway and I-196, and for years has been hauling sand from other sites in Covert Township to that site for processing."

The permit process and the related documents for this sand dune mine never contemplated converting the site to a processing plant for sand brought in from other mines. No public hearings were held regarding such a change. These activities represent significant change in the impact of mining activity on neighboring properties, state roads, and persons living along the truck route to and from the site. Furthermore, it is against the zoning ordinance of Covert Township as was confirmed by Harold Schuitmaker in his written response to Mr. Crow.

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. Before such change in use is made, the EIS should be revised and public hearings held.

2. Should cells 10 and 11 not be considered active, because the mined area is minor and was mined in error or unintentionally, TechniSand is then in violation of Special Permit Conditions, Item 4, since both cells are being used to move equipment fundamental to the mining operation.

2. "Should Cells 10 and 11 not be considered active.

Our on site inspection and our evaluation of the January 14, 1998 aerial photo does not indicate any activity within Cell Units 10 and 11. These cell units are not active.

2. The reply was non-responsive. The cells are being used to move equipment fundamental to the mining operation. See the photo of road below.

3. Last year an additional entry has from the Blue Star Highway has been added north of the original one. This change in the use of the site has been made without revision to the cell unit mining and reclamation plan. This exposes more neighboring properties to noise, dust, disturbance and hazards of heavy truck traffic. This item was omitted in the December letter.

3. "Additional entry from Blue Star Highway."

You are correct the company did not make a formal request to amend their permit by adding the second access road into the north end of the site. However, the company did request approval to re-open this access point in a letter dated, March 11, 1997 and on April 10, 1997 the DEQ did respond and provided approval for the use of this second haul road access As this action was an improvement to a previously existing road, we did not regard this request to be significant enough to warrant a formal amendment to the permit.

3. The new entry has not been open since the first permit was issued in 1978. It was not just a reopening but a change in the use of the site and represents more than a minor change. It is further evidence of the lack of control and management that the DEQ exercises in the performance of its responsibilities to the people of Michigan.

4. Item 3 in our original letter indicated that vehicles were being parked in Cell1, the only cell that has been reclaimed. This was an error. Actually, what we had thought were vehicles are abandoned pieces of mining equipment. I believe the violation is the same.

4. "Abandoned pieces of mining equipment in Cell 1"

On inspections of the site no abandoned mining equipment has been observed in Cell Unit 1

4. Our inspection found the equipment pictured below within Cell Unit 1. These are very large and evident pieces of junk. An aerial photograph pinpoints the location.

A later aerial photograph taken in early April indicates that the equipment was relocated into the plant area and the adjacent portion of Cell Unit 1.

**Additional Comments, Nadeau Pit**
Preserve the Dunes, Jan 30, 1998	MDEQ, Feb 10, 1998	Preserve the Dunes Feb. 18, 1998 May 15 Revisions in RED
1. We have been informed that sand has been brought in from other mines for washing at the Nadeau Pit. This has never been mentioned in any permit applications to the Geological Survey Division or to the Land and Water Management Division. The operation increases the demands for ground water. This additional use of ground water was never analyzed in the environmental impact study. Nor were the impacts of additional truck traffic addressed. Futhermore, processing of sand from other sites is against the zoning ordinance of Covert Township. This practice should be stopped or the permitting process should be reopened to consider the impacts of these operations. Public hearings need to be held before these operations are included in the sand dune mining permit.	1. "Sand has been brought in from other mines for washing at the Nadeau Pit." Sand is not being brought into the Nadeau Pit from an off-site source and then processed utilizing the wash plant at this site. In order to process sand from an off-site source the company would need a means to off load the sand from trucks, place the sand on a conveyor system, and then introduce the sand into the wash operation through the slurry pipeline system. There are no facilities at this site to accommodate this type of activity. However, a sand dune mining operation that provides sand for the foundry industry must create a final product which meets the specifications of the customer. There are very few sand mining operations that are able to produce a final product for their customer without blending sands from other sources. Therefore, bringing sand from other sources is both a common practice and an essential practice to the sand dune mining companies which produce foundry sand. A sand dune permit issued under Part 637 of the NREPA regulates the mining and reclamation of sand from the site under permit, it does not regulate the processing of other sands which is necessary to create a saleable product. The blending of sand from off-site sources is not a violation of the law or the permit. The processing of the additional sand brought in from off-site sources does not increase the demands for ground water. The wash operation at this site utilizes water totally contained within the boundaries of the mining site. The wash operation is not consumptive, the water is recirculated and remains on site.	1. Sand has been brought in from other mines for processing at Nadeau Pit. We base this statement on a copy of a letter from John Crow attorney for TechniSand, Inc. to Harold Schuitmaker attorney for Covert Township, dated June 1,1995 in which he states "this is to advise that TechniSand, Inc. has its processing plant in Section 36, between Blue Star Memorial Highway and I-196, and for years has been hauling sand from other sites in Covert Township to that site for processing." The permit process and the related documents for this sand dune mine never contemplated converting the site to a processing plant for sand brought in from other mines. No public hearings were held regarding such a change. These activities represent significant change in the impact of mining activity on neighboring properties, state roads, and persons living along the truck route to and from the site. Furthermore, it is against the zoning ordinance of Covert Township as was confirmed by Harold Schuitmaker in his written response to Mr. Crow. 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. Before such change in use is made, the EIS should be revised and public hearings held.
2. Should cells 10 and 11 not be considered active, because the mined area is minor and was mined in error or unintentionally, TechniSand is then in violation of Special Permit Conditions, Item 4, since both cells are being used to move equipment fundamental to the mining operation.	2. "Should Cells 10 and 11 not be considered active. Our on site inspection and our evaluation of the January 14, 1998 aerial photo does not indicate any activity within Cell Units 10 and 11. These cell units are not active.	2. The reply was non-responsive. The cells are being used to move equipment fundamental to the mining operation. See the photo of road below.
3. Last year an additional entry has from the Blue Star Highway has been added north of the original one. This change in the use of the site has been made without revision to the cell unit mining and reclamation plan. This exposes more neighboring properties to noise, dust, disturbance and hazards of heavy truck traffic. This item was omitted in the December letter.	3. "Additional entry from Blue Star Highway." You are correct the company did not make a formal request to amend their permit by adding the second access road into the north end of the site. However, the company did request approval to re-open this access point in a letter dated, March 11, 1997 and on April 10, 1997 the DEQ did respond and provided approval for the use of this second haul road access As this action was an improvement to a previously existing road, we did not regard this request to be significant enough to warrant a formal amendment to the permit.	3. The new entry has not been open since the first permit was issued in 1978. It was not just a reopening but a change in the use of the site and represents more than a minor change. It is further evidence of the lack of control and management that the DEQ exercises in the performance of its responsibilities to the people of Michigan.
4. Item 3 in our original letter indicated that vehicles were being parked in Cell1, the only cell that has been reclaimed. This was an error. Actually, what we had thought were vehicles are abandoned pieces of mining equipment. I believe the violation is the same.	4. "Abandoned pieces of mining equipment in Cell 1" On inspections of the site no abandoned mining equipment has been observed in Cell Unit 1	4. Our inspection found the equipment pictured below within Cell Unit 1. These are very large and evident pieces of junk. An aerial photograph pinpoints the location. A later aerial photograph taken in early April indicates that the equipment was relocated into the plant area and the adjacent portion of Cell Unit 1.

Busse Property, Covert Township

Preserve the Dunes, Dec.18, 1997

MDEQ, Feb 10, 1998

Preserve the Dunes Feb. 18, 1998
May 15 Revisions in RED

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.

1. "The area of Cell 4 is actually between 10.20 and 10.41 acres - exceeding the largest cell permitted by law."

We believe you have misinterpreted the information provided by TechniSand in their May 3, 1994 letter requesting an amendment to the size of Cell Unit 4. The request by TechniSand indicated the area to be amended to Cell Unit 4 included 1.02 acres owned by Glover Dandridge and Adelia Bracken and 1.06 acres owned by TechniSand. The 1.06 acres owned by TechniSand is already included in the 8.08 acres identified as the current acreage for Cell Unit 4. Therefore, the revised acreage for Cell Unit 4 is now 9. 10 acres (8.08 acres + 1.02 acres), which does not exceed the ten-acre limit provided by law.

The 200' buffer does not apply to this cell unit because the site was permitted and the cell unit was active prior to the 1994 amendments to the statute which added the 200' setback requirements.

1. No we did not misunderstand. You failed to understand the game of semantics that TechniSand played.

They stated "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." The statute does not govern the active area of a cell unit, but the total area. While the facts are generally true they misled the Division to state on the permit that the Cell was increased to 9.24 acres. The original permit indicated that the area of Cell 4 was 8.08 acres. The additional area from the adjacent property is not 1.02 acres. Including the 50 foot buffer the area is 2.12 acres as drawn on the revised PCUMRP or 2.33 acres based on the conditions stipulated in the sand purchase agreement. Therefore, the area of Cell 4 is actually 10.41acres - exceeding the largest cell permitted by law.

The date of the permit was September 19, 1994. The amendments changing the setback requirements were made immediately effective on May 24, 1994 and the relevant DEQ regulations became effective June 24, 1994. Furthermore, TechiSand did not even have the right to mine the sand until its sand purchase agreement was executed on July 15, 1994, 22 days after the amended regulations became effective. No exception in the buffer width should have been made.

Furthermore, in the original permit the set backs were 100' except along the Blue Star Highway. This amendment reduced the setbacks to 50' without even notification to adjacent property owners.

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.

2. "Reclamation has not been made in accordance with the 1986 amended Progressive Cell Unit Mining and Reclamation Plan."

Reclamation has been an ongoing process for many years. The company completed the last of the regrading in Cell Unit 4 in the fall of 1997 and should complete the remaining vegetative planting in the spring of 1998.

2. Our first concern is that the practices used in the Nadeau Pit will be followed here. Cell Unit 2 at Nadeau Pit was planted with grass years ago, placed in reclaimed status, conformance bonds were released, and still today trees and shrubs have not been planted.

The PCUMRP described a process of continual reclamation. As mining was complete in an area, it would be regraded and planted. We now have an entire cell that is raw sand. Reclamation has not been made in accordance with the 1986 amended Progressive Cell Unit Mining and Reclamation Plan.

In late March, Cell Unit 4 was hydroseeded without topsoil being spread over the raw sand. By mid-May an onsite inspection revealed that only 10% of the seed germinated.

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.

3. "No up to date 15 year mining plan fulfilling the requirements of Section 63707 is on file.

The 15 year mining plan which is required by Section 63707 of Part 637 of the NREPA is language from the original statute that was enacted by the legislature in 1976. The 15 year mining plan requirement is directed at a mining company and is intended to depict the companies plans for mining all of their properties. If a company only operates one mining site then the 15 year mining p]an does only address one mining site. However, the reason for requiring the 15 year mining plan was so the DEQ will know what sites are being mined and what sites may be mined in the future, i.e. where applications far new permits may be requested. The law does not require any updating of a company's 15 year mining plan.

3. See our comments above regarding the 15 year mining plan for Nadeau Pit. 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.

4. "The site has not been fenced."

Special permit condition No. 1 does state, "The permittee shall install and maintain fencing.... in a manner restricting pedestrian access ...." We do not enforce this special permit condition as meaning the entire mining operation should be fenced. We require the operator to install sufficient fencing and signs to achieve the intent of the permit condition, which is to restrict pedestrian access. The permit condition is to achieve two purposes: one to provide for public safety and two to prevent disturbance of revegetated areas which have been reclaimed The operator at this site has installed sufficient fencing and signs to deter pedestrian access to the site.

4. During mining there was little to no fencing. Even though the danger to pedestrians has passed, it is still necessary to protect the reclaimed areas before they enter interim status. Fencing is needed. There is clear and obvious evidence of ORV's driving over the graded slopes on the site. The site was used for hunting earlier in the year. It is possible to walk or drive an ORV from the parking lot of the Blue Star Lounge right into Cell Unit 4. An on site inspection indicates that the fencing is anything but adequate to protect the reclamation efforts when they are made and to restrict pedestrian access.

5. According to the Van Buren Conservation District a duplicate copy of the 15 year mining plan is not on file per 63707(2).

5. "A duplicate copy of the 15 year mining plan is not on file per 63707(2).

The 15 year mining plan for this site was prepared and submitted by the original Manley Brothers of Indiana in February 1978. A public hearing on the "Intent to Issue a Permit" was held on February 20, 1978 at the Berrien County Courthouse. It is the practice of the Department to make available all documents prepared by the applicants for a permit at several locations including the local area prior to the public hearing. The Notice of Public Hearing indicates that we did make the documents available at the County Clerk's office for VanBuren County from February 8, 1979 to March 9, 1979. We would have provided the same information to all other interested agencies, including the Soil Conservation Districts, at that time. Our records do not verify, by specific correspondence, that we did send the documents to the VanBuren County Soil Conservation District, therefore, you may be correct in this allegation.

5. No further comment, except that it is the responsibility of the sand dune mine operator, not the DEQ, to file with the Conservation District.

**Busse Property, Covert Township**
Preserve the Dunes, Dec.18, 1997	MDEQ, Feb 10, 1998	Preserve the Dunes Feb. 18, 1998 May 15 Revisions in RED
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.	1. "The area of Cell 4 is actually between 10.20 and 10.41 acres - exceeding the largest cell permitted by law." We believe you have misinterpreted the information provided by TechniSand in their May 3, 1994 letter requesting an amendment to the size of Cell Unit 4. The request by TechniSand indicated the area to be amended to Cell Unit 4 included 1.02 acres owned by Glover Dandridge and Adelia Bracken and 1.06 acres owned by TechniSand. The 1.06 acres owned by TechniSand is already included in the 8.08 acres identified as the current acreage for Cell Unit 4. Therefore, the revised acreage for Cell Unit 4 is now 9. 10 acres (8.08 acres + 1.02 acres), which does not exceed the ten-acre limit provided by law. The 200' buffer does not apply to this cell unit because the site was permitted and the cell unit was active prior to the 1994 amendments to the statute which added the 200' setback requirements.	1. No we did not misunderstand. You failed to understand the game of semantics that TechniSand played. They stated "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." The statute does not govern the active area of a cell unit, but the total area. While the facts are generally true they misled the Division to state on the permit that the Cell was increased to 9.24 acres. The original permit indicated that the area of Cell 4 was 8.08 acres. The additional area from the adjacent property is not 1.02 acres. Including the 50 foot buffer the area is 2.12 acres as drawn on the revised PCUMRP or 2.33 acres based on the conditions stipulated in the sand purchase agreement. Therefore, the area of Cell 4 is actually 10.41acres - exceeding the largest cell permitted by law. The date of the permit was September 19, 1994. The amendments changing the setback requirements were made immediately effective on May 24, 1994 and the relevant DEQ regulations became effective June 24, 1994. Furthermore, TechiSand did not even have the right to mine the sand until its sand purchase agreement was executed on July 15, 1994, 22 days after the amended regulations became effective. No exception in the buffer width should have been made. Furthermore, in the original permit the set backs were 100' except along the Blue Star Highway. This amendment reduced the setbacks to 50' without even notification to adjacent property owners.
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.	2. "Reclamation has not been made in accordance with the 1986 amended Progressive Cell Unit Mining and Reclamation Plan." Reclamation has been an ongoing process for many years. The company completed the last of the regrading in Cell Unit 4 in the fall of 1997 and should complete the remaining vegetative planting in the spring of 1998.	2. Our first concern is that the practices used in the Nadeau Pit will be followed here. Cell Unit 2 at Nadeau Pit was planted with grass years ago, placed in reclaimed status, conformance bonds were released, and still today trees and shrubs have not been planted. The PCUMRP described a process of continual reclamation. As mining was complete in an area, it would be regraded and planted. We now have an entire cell that is raw sand. Reclamation has not been made in accordance with the 1986 amended Progressive Cell Unit Mining and Reclamation Plan. In late March, Cell Unit 4 was hydroseeded without topsoil being spread over the raw sand. By mid-May an onsite inspection revealed that only 10% of the seed germinated.

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.	3. "No up to date 15 year mining plan fulfilling the requirements of Section 63707 is on file. The 15 year mining plan which is required by Section 63707 of Part 637 of the NREPA is language from the original statute that was enacted by the legislature in 1976. The 15 year mining plan requirement is directed at a mining company and is intended to depict the companies plans for mining all of their properties. If a company only operates one mining site then the 15 year mining p]an does only address one mining site. However, the reason for requiring the 15 year mining plan was so the DEQ will know what sites are being mined and what sites may be mined in the future, i.e. where applications far new permits may be requested. The law does not require any updating of a company's 15 year mining plan.	3. See our comments above regarding the 15 year mining plan for Nadeau Pit. 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.	4. "The site has not been fenced." Special permit condition No. 1 does state, "The permittee shall install and maintain fencing.... in a manner restricting pedestrian access ...." We do not enforce this special permit condition as meaning the entire mining operation should be fenced. We require the operator to install sufficient fencing and signs to achieve the intent of the permit condition, which is to restrict pedestrian access. The permit condition is to achieve two purposes: one to provide for public safety and two to prevent disturbance of revegetated areas which have been reclaimed The operator at this site has installed sufficient fencing and signs to deter pedestrian access to the site.	4. During mining there was little to no fencing. Even though the danger to pedestrians has passed, it is still necessary to protect the reclaimed areas before they enter interim status. Fencing is needed. There is clear and obvious evidence of ORV's driving over the graded slopes on the site. The site was used for hunting earlier in the year. It is possible to walk or drive an ORV from the parking lot of the Blue Star Lounge right into Cell Unit 4. An on site inspection indicates that the fencing is anything but adequate to protect the reclamation efforts when they are made and to restrict pedestrian access.
5. According to the Van Buren Conservation District a duplicate copy of the 15 year mining plan is not on file per 63707(2).	5. "A duplicate copy of the 15 year mining plan is not on file per 63707(2). The 15 year mining plan for this site was prepared and submitted by the original Manley Brothers of Indiana in February 1978. A public hearing on the "Intent to Issue a Permit" was held on February 20, 1978 at the Berrien County Courthouse. It is the practice of the Department to make available all documents prepared by the applicants for a permit at several locations including the local area prior to the public hearing. The Notice of Public Hearing indicates that we did make the documents available at the County Clerk's office for VanBuren County from February 8, 1979 to March 9, 1979. We would have provided the same information to all other interested agencies, including the Soil Conservation Districts, at that time. Our records do not verify, by specific correspondence, that we did send the documents to the VanBuren County Soil Conservation District, therefore, you may be correct in this allegation.	5. No further comment, except that it is the responsibility of the sand dune mine operator, not the DEQ, to file with the Conservation District.

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