Opposition to Nugent Sand Company’s Proposal to
Discharge Wastewater and Lake Leveling Water to Lake Michigan
Various formal Resolutions have been passed by the cities of Muskegon, Norton Shores, Whitehall and Muskegon Township, the Muskegon County Nature Club, the Muskegon Recreation Club, the Muskegon Democratic Party, the Muskegon Conservation Club, and the Michigan Anglers Association opposing the Nugent proposal to install 1) a 36" X 600’ pipeline through critical dunes; 2) to construct a rock plunge pool 15’L X 28’ W on the beach; and 3) to discharge 8.3 million gallons of treated wastewater per day, plus lake leveling waters directly to Lake Michigan.
The Muskegon Chronicle conducted a public telephone poll April 7-8, 2004 asking, "Should Nugent Sand be allowed to pump treated wastewater to Lake Michigan?" Of 183 responses, 93% voted no, 7% voted yes.
Nugent Sand proposes to discharge to Lake Michigan to help clean up the contaminated groundwater beneath their property and to regulate their South Lake’s level to allow a multi-million dollar development to be built. The discharge presents serious concerns in regard to drinking water, environmental quality, erosion, derogatory perceptions, property values, nuisance and safety issues, and aesthetic degradation. The discharge would be approximately one-half mile from the Muskegon Heights Water Filtration Plant and approximately one mile from the Muskegon Water Filtration Plant, serving six municipalities or 120,000 people.
Nugent Sand owns 440 acres in Norton Shores, MI, some fronting Lake Michigan, which it has sand mined for over 90 years. Sand mining operations have resulted in two lakes. They ceased mining South Lake in 1998 and have planned the Dune Harbor Estates Development to surround it. Robert Chandonnet is sole owner of both Nugent and the Dune Harbor Estates Development. The South Lake level has "unexpectedly" risen from 584 feet to 592 feet at its highest point, rendering the lake lots unbuildable, creating a lake of 120 acres. The levels of both lakes fluctuate with mining operations which apparently have extended into the aquifer. Nugent proposes to discharge from the South Lake to Lake Michigan to regulate the lake level and allow the homes to be built. No permit is needed for the discharge.
The North Lake is currently being mined. The company discharges over 20,000,000 gallons of process wastewaters and wash waters to the groundwater. Surrounding residents in the Idlewild and Winnetaska subdivisions used to have very high quality water. Through the years, well water in the area has vastly deteriorated with increased amounts of iron and manganese, rendering it undesirable for any use. Years ago Winnetaska residents sued Nugent over the groundwater contamination and reached a small settlement. Idlewild residents have a groundwater suit as well.
The Department of Environmental Quality suspects an indirect link between the company discharges and the groundwater contamination. In order to clean up the groundwater, the DEQ proposes that Nugent discharge its treated wastewater directly to Lake Michigan. According to Diane Carlson, DEQ Water Division, Surface Water Permits Section, who conducted the surface water public hearing,
It's an issue of hydraulics. Environmentally we benefit from lowering N Lake because less percolation of water slows bacteria and pamak migration in the soils. A lower column of water means less head and less water forcing industrial waters into the soils. The lowering of S Lake is desired by the Company and is not expected to correct the well water issues affected by N Lake.
The NPDES permit application was revised January 3, 2003. Darlene DeHudy asked Diane Carlson to extend the public comment period. The request was denied. Despite nearly total public opposition at the surface water public hearing January 7, 2003, a National Pollutant Discharge Elimination System Permit (NPDES) was issued for the discharge on January 28, 2003. Ms. Carlson went on medical leave January 29 until March 2003. The public had 60 days to contest the permit. Nugent also uses Pine Oil which is not mentioned in the NPDES permit; but was mentioned in the Public Hearing Fact Sheet. When questioned about Pine Oil, Diane Carlson writes, "To my knowledge Nugent Sand has not requested approval of any additive except PAMAK. Once a permit is issued, a permittee may request approval of additional additives. This approval is directly through the toxicologists." Apparently, a NPDES permit can be approved without listing all the additives.
A public petition with nearly 800 signatures stating they were against the Nugent pipeline, discharge, and groundwater permit was sent to the Governor, the DEQ Director, the City of Norton Shores, the DEQ Groundwater Division, Water Division, Geological and Land Management Division and other state and federal government leaders.
April 29, 2003 the Groundwater Discharge Permit public hearing was held with again nearly total public opposition. June 5, 2003 it was granted with additional requirements. Recognizing the groundwater problem for Winnetaska and Idlewild residents, the Groundwater Discharge Permit requires Nugent to 1) provide a permanent source of potable water to the affected users surrounding their property, 2) submit a work plan indicating how permanent water will be provided to affected residences, 3) within 180 days of the approval of the work plan, Nugent is to provide a permanent source of potable water to affected users of the Winnetaska and Idlewild subdivisions. Nugent has contested the requirements, which are being negotiated. No water has been supplied to residents to date.
Nugent Sand Company has acquired all the necessary DEQ permits but one. April 9, 2003, the DEQ Geological and Land Management Division denied the Nugent permit request to put a pipeline through the critical dune and to construct a plunge pool on the beach. They found that the "Proposal will cause significant adverse impacts on the natural resources and public interest and/or public trust associated with the Critical Dunes (Part 353), the Great Lakes Submerged lands (Part 325) and the Inland Lakes (Part 301)."
In addition, the erosion structure is illegal by Michigan Law 324-35316(2). The law states the structure must not cause serious soil erosion or sedimentation, and will not destabilize the critical dune area. Environmental experts from the University of Michigan and Michigan State University agree that the erosion structure and its effluent will cause severe damages to the critical dunes, the beach and the Lake Michigan bottom. They urge consideration of any other alternatives.
In July 2003, Nugent contested the DEQ GLMD’s permit denial in Administrative Law Court with Judge Richard Patterson. The public was not aware of the contested case even after Darlene DeHudy asked the DEQ Divisions to notify her of any meetings pertaining to the Nugent proposals. When Ms. DeHudy wrote Judge Patterson that the public did not have an opportunity to have a voice, he replied that her "intervention" did not follow procedures and it was untimely. The Lake Michigan Federation and the City of Muskegon also filed interventions which were denied as untimely. February 24, 2004, Judge Patterson ruled in Nugent’s favor and submitted his Proposal for Decision to DEQ Director Steven Chester for a final decision. Director Chester’s decision is forthcoming.
On January 16, 2004, a Muskegon Save Our Shoreline committee delivered 600 opposition letters and an informational notebook for Governor Granholm to aide Kirsten Simmons. The committee discussed the issues with Skip Pruss and left a notebook with him.
Muskegon Save Our Shoreline agrees with the Lake Michigan Federation Comments regarding Judge Patterson’s Proposal for Decision:
1) "The public is opposed to the permit because of the devastating
impacts it will have on Lake Michigan and the dune ecosystem."
2)"The Decision incorrectly applied the Standard in Section 353 regarding
the severity of environmental impacts." Erosion is certain to occur. The dunes, beach and Lake Michigan bottom is severely threatened.
3)"The Decision should be denied as a matter of law." The applicable statutes are MCL 324.30101 (habitat protection in inland lakes and streams) et seq and MCL 324-35301 (requires a permit before diminishing a lake or stream) et seq and 324.30106 (a permit is issued only if riparian rights and/or the public trust is not adversely affected, plus possible impacts to Lake Michigan must be considered.
4)"Cumulative effects of the outfall on Lake Michigan would certainly adversely affect the public’s interest in Lake Michigan, which is protected by the ‘public trust’ doctrine." ...the outfall is opposed by local governments, including the City of Norton Shores, Muskegon, Muskegon Township, and Whitehall. Over twenty environmental groups locally and across the state oppose the outfall.
5)"In this case, the outfall is a use that is also a structure." ..."(MCL 324.35317)...Section 35316 prohibits a use that is a structure, unless it is ‘constructed behind the crest of the first landward ridge of a critical dune area that is not a foredune.’ In this case the structure will be constructed in the foredune and therefore its construction is clearly prohibited."
6)"The weather around Lake Michigan can be extreme, and therefore it is almost certain that an extreme scenario will play out sometime during the life of the lake level control structure."
7)"Economic impacts to Dune Harbor should not receive disproportionate consideration relative to the potentially significant cumulative environmental harm that will occur."
The local communities are concerned with the discharge being so close to the two water filtration plants. According to Robert Chandonnet, Nugent’s owner, Nugent uses a minimum of 100,000 pounds of Pamak a year in the sand mine processes. Eastman Chemical Company manufactures Pamak, (tall oil fatty acid, or TOFA). They state "that under most test conditions TOFA is readily biodegradable. However, in some studies the TOFA could not be considered readily biodegradable. No indication is given for these discrepancies in test results." The NPDES permit gives no limit to the amount of Pamak that can be discharged to Lake Michigan.
The "Final Report on the Safety Assessment of Tall Oil Acid," in the Journal of the American College of Toxicology, states there was a "growth retarding or possibly toxic factor in the tall oil fatty acid distillate."
In February and March 2004, along the Nugent Lake Michigan shoreline, a repulsive discharge was present. There was sticky foam, underwater iron bacteria, and a metallic sheen on the surface water, trapped between the shoreline and the Lake Michigan ice formations. Nugent’s inland lakes are about 600 feet inland. According to Idlewild residents, this has been happening for the past eight years. Such surface water discharges are totally foreign to the Lake Michigan shoreline. Without a specific permit, surface water discharges are illegal by the Clean Water Act, a violation of state and federal laws.
The surface water discharges to Lake Michigan in February and March 2004 severely degrade the aesthetics of the Lake Michigan shoreline. The public does not want an industrial waste discharge on the beach. For months, there has been a steady stream of Letters to the Editor and several front page news articles in the Muskegon Chronicle opposing the discharge.
Muskegon will be inaugurating the first cross-lake ferry service soon. They hope to develop their tourist economy. They have worked diligently to win the National Clean Beaches Award for two straight years. They do not want the perception or reality of industrial waste being discharged into Lake Michigan. Muskegon is also paying some $20 million to improve their water filtration system with strict regulations not allowing them to even discharge their backwash water into Lake Michigan. They were first to pass a city resolution against the Nugent proposal.
Another concern is the high levels of iron and manganese which render the residential wells unusable. Microbiology Professor Eugene D. Weinberg of Indiana University has studied and published numerous scientific articles on the effects of excess iron in the body relative to diseases. He writes, "One of the more well-known dangers of excessive iron is its ability to favor cancer cell growth. The metal is carcinogenic because it is:
1. a powerful oxidant and mutagen
2. an inhibitor of defense white blood cells, and
3. a nutrient for rapidly growing cancer cells."
Dr. Weinberg writes in "Iron Loading and Disease Surveillance," that iron can increase the risk for disease in the heart, lungs, intestine, arteries, joints, liver, pancreas, skeletal system, skin, soft tissue, plasma and lymph systems, etc.
In regard to manganese, he states, "Elevated manganese indeed is associated with neurodegenerative disease. However, there have been relatively few studies on the manganese hazard as compared with the iron hazard."
The blowing sand itself presents a health hazard. Since the DEQ has not restricted Nugent Sand to maintain adequate buffer zones in its mining operation, to protect surrounding residents from blowing sands, neighbors have been plagued with sand in their houses and cars for years. Nugent claims no responsibility and therefore residents have received no relief. Dr. Weinberg also writes in "Lung Cancer Among Industrial Sand Workers Exposed to Crystalline Silica,"
In a 22-year study in 18 plants of 4,027 domestic industrial sand workers exposed to crystalline silica, Steenland and Sanderson (1) observed a 60 percent excess of lung cancer mortality in the exposed cohort compared with the US male population. This finding supports the 1997 judgment by the International Agency for Research on Cancer that inhaled crystalline silica from occupational sources is a carcinogen (2). Indeed, as early as 1940, inhaled silica was shown to induce lung cancers in mice (3). ...A possible cause of fluctuation in potency might be variable contamination of silica with a known carcinogen such as iron (4).
In conclusion, four local municipalities and over twenty environmental groups oppose the Nugent plan for concerns regarding health, environmental quality, derogatory perceptions, nuisance and safety concerns, and aesthetic degradation. The public asks that Director Chester enforce Michigan laws and deny the permit.
Darlene A. DeHudy
Vice-President
Muskegon Save Our Shoreline
April 21, 2004
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