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Tuesday, February 14, 2006 Court Case Puts Dunes in Crosshairs By Jeff Alexander, CHRONICLE STAFF WRITER The fight over Nugent Sand Co.'s proposal to build a wastewater pipeline through a Lake Michigan dune has moved into the courts, where a company victory could trigger more construction in coastal dunes statewide. A Nugent Sand subsidiary, Dune Harbor Estates LLC, recently filed an appeal in Ingham County Circuit Court challenging the state's refusal to issue a permit needed to build a 600-foot pipeline through a 4,000-year-old dune. Michigan Department of Environmental Quality Director Steven Chester denied the pipeline permit in December. Chester said the pipeline would "fundamentally alter the physical characteristic of the dune." Dune Harbor's lawyers claimed the company didn't need a state permit because the proposed pipeline is a lake level control outlet -- not a structure, "use or contour change" regulated by the state's Sand Dune Protection and Management Act. In the court filing, Dune Harbor attorney William Fulkerson said Chester's order "is not supported by competent, material and substantial evidence." "The order is arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion," Fulkerson said. Bob Chandonnet, owner of Nugent and a principle in the Dune Harbor development, could not be reached for comment. Opponents of the pipeline said a court victory by Dune Harbor could weaken the state's dune protection law, which limits construction in coastal dunes. "This is a real test of the dune law," said Jamie Morton, manager of outreach programs for the Alliance for the Great Lakes. "There has been a lot of focus on (Nugent's) water in the past, but this fight is really centered on the dunes." Chester said the court case would have statewide implications if it reaches the Michigan Court of Appeals, the next step in the legal process. "If our position isn't sustained, it will make it a lot easier for parties to get exceptions (to the dune law) and avoid regulation," Chester said. Chandonnet wants to build 65 homes around one of two man-made lakes at the Nugent site. The development would be called Dune Harbor Estates. Nugent officials have said they were surprised when water levels in the man-made lakes rose six feet after mining ceased on the south portion of its 440-acre site. The company is still mining sand in and around a man-made lake on the north end of its property. Chester has said Nugent could resolve its high water problem by building fewer houses around the south lake and providing larger setbacks from the water. Darlene DeHudy, vice president of Muskegon Save Our Shoreline, said she fears Nugent and Dune Harbor will eventually prevail in the courts. "Obviously, they're determined to put the pipeline in," DeHudy said. "The problem is the public thinks it is never going to happen; I'm afraid it is." The DEQ already has issued Nugent a permit to discharge its sand-mining wastewater into Lake Michigan. State officials have said the discharge would not pollute the lake; critics claim the discharge would jeopardize the drinking water supply for most residents in the greater Muskegon area. Critics also have said the proposed pipeline -- which would transport treated wastewater from Nugent's sand-cleaning process into a 1,925-square-foot, rock-filled plunge pool on the Lake Michigan beach -- would be an eyesore and a potential hazard to kids playing on the beach. In his December ruling, Chester said the proposed pipeline project would not threaten human health or public safety. But he said the proposed plunge pool constituted a structure and, as such, was prohibited by the dune law from being built on the beach. ©2006 Muskegon Chronicle
Wednesday, December 8, 2005 Nugent Responsible for its own problem By Jeff Alexander,
CHRONICLE STAFF WRITER That was the overriding message delivered Wednesday when Michigan's top environmental official denied Nugent Sand Co.'s proposal to build a 600-foot pipeline through a 4,000-year-old Lake Michigan dune. Nugent was seeking a state permit to build the pipeline so it could discharge 8 million gallons per day of treated wastewater from its sand-cleaning process into Lake Michigan. Company officials said they needed the pipeline to lower the water level in a manmade lake Nugent created at its mining site; the company wants to build 65 homes around the lake in a development called Dune Harbor. Nugent officials said they were surprised when the water level in the man-made lake rose six feet after mining ceased on the south portion of its 440-acre site. Steven Chester, director of the Michigan Department of Environmental Quality and a Muskegon area native, called the company's alleged surprise a "red herring." "Beneath Dune Harbor's position that the higher lake level was unexpected lies the tacit acknowledgment that it failed to monitor the rising lake level," Chester said in his ruling. "There is no excuse for this surprise. "Given the history of annual fluctuations (in water levels), given the importance of lake levels to its (development) plans, given the ease of observing the lake level, how Dune Harbor could fail to notice a six-foot increase in the lake level is hard to fathom," Chester said. Nugent owner Bob Chandonnet declined to comment on Chester's order. Chandonnet said he wanted to thoroughly review the order before commenting on it. Nugent could appeal Chester's ruling in circuit court. Environmental activists praised Chester's decision. "I think it shows that the DEQ is more aware of environmental issues than it has been in the past," said Jamie Morton, manager of outreach programs for the Alliance for the Great Lakes. Chester's ruling does not affect Nugent's ongoing sand-mining operation. The company is still mining the north portion of its property and is seeking renewal of a state permit that would allow mining to continue through 2012. But the company's plan to lower the water level in the man-made lake by piping water to Lake Michigan is dead unless Nugent takes its case to court and wins. Since Nugent created the lake, Chester said, the company must solve the high water problem on its own -- without building a pipeline that would damage a coastal dune protected by state law. "It is unrefuted that by its very scale, the project will fundamentally alter the physical characteristic of the dune," Chester said in his 21-page ruling. "I find, as a matter of fact, the proposed project will likely cause an adverse impact to the dune." Chester offered a solution to Nugent's water woes: Build fewer houses around the lake. Chester said Nugent could build 48 homes around the lake, without lowering the water level, and still earn a profit of between $900,000 and $1.9 million on the project. "Such a development would eliminate any need to impact the critical dune," Chester said in his ruling. "Dune Harbor can realize the benefit of the proposed alteration, residential development of the site, while the environment and ecology of the dune is assured." During an earlier hearing on the pipeline project, Chester said Nugent officials testified that the company expected to earn as much as $5 million by building 65 large homes around the man-made lake. Downsizing the Dune Harbor development would not deny Nugent's right to a reasonable use of its property, Chester said. The proposed pipeline sparked a fierce community controversy. Many area residents and officials from the cities of Muskegon, Muskegon Heights and Norton Shores expressed concern that Nugent's plan to discharge millions of gallons of treated process wastewater into Lake Michigan could pollute the lake, which provides drinking water for those communities. DEQ officials had said the discharge would not pollute Lake Michigan, but many area residents remained skeptical. Critics said the proposed pipeline -- which would have dumped water treated wastewater from Nugent's sand-cleaning process into a 1,925-square foot, rock-filled plunge pool on the Lake Michigan beach -- would have been an eyesore and a potential hazard to kids playing on the beach. In his ruling, Chester said the proposed pipeline project would not threaten human health or public safety. But he said the proposed plunge pool constituted a structure and, as such, was prohibited by state law from being constructed on the beach. Nugent officials had argued the plunge pool did not meet the legal definition of a structure. Nugent critics called Chester's decision a watershed event in the annals of Muskegon County's environmental history. "It's a great step forward for Muskegon.
We're finally protecting our environment and taking a stand to protect the most
beautiful place on Earth," said Darlene DeHudy, vice president of Muskegon
Save Our Shoreline. Tuesday,
May 17, 2005 Robert C. Burns, CHRONICLE STAFF WRITER The city of Muskegon may extend a waterline into the Idlewild area of Norton Shores, where residents' wells have been badly polluted for more than a decade. A request to extend water into the area comes from Nugent Sand Co., which has denied that its nearby sand-mining operation was in any way responsible for fouling residents' wells. Robert Chandonnet, president of Nugent Sand, wrote the city this month with a request to tap into a city water main on the north side of Sherman Boulevard and run an 8-inch line into the Idlewild subdivision. As proposed, the work would be done by Nugent Sand, using Jackson-Merkey Contractors. It couldn't come too soon for owners of the 13 homes in Idlewild, who say their water is unusable for drinking, cooking or washing.Whether it happens, and when, could depend on the outcome of a lawsuit filed against Nugent Sand by the Idlewild Protection Association, according to its president, Gail Law of 3085 Idlewild. The case is scheduled for trial June 14 in Muskegon County's 14th Circuit Court, but a settlement hearing is scheduled for 11:30 a.m. Friday before Judge Timothy G. Hicks. Claiming that chemicals used to treat sand have infiltrated their wells, the association is trying to force Nugent to pay for a new waterline into their wooded neighborhood just south of Sherman Boulevard near Lake Michigan. Law said 10 members participating in the suit rejected an offer Nugent made last month to supply them with bottled water and filters in exchange for releasing the company from future liability. Chris Bzdok, a Traverse City attorney representing the Idlewild group, would not speculate on Nugent's motivation for writing the letter, but said he took it as a positive sign. "The existence of that letter is encouraging," he said Monday. "Nugent has been saying for two years that they didn't cause this problem, it wasn't their fault and city water wasn't necessary." The city water hookup would be temporary, because Norton Shores is expected to extend its own waterlines into the area when a planned condominium development is built on Nugent Sand property. But Jerry Bartoszek, Norton Shores' public works director, says there is no way to know when that will happen. "It would be some time," he said, and the Idlewild area is still farther north of the planned condominiums. Muskegon Public Works Director Robert Kuhn briefed members of the Muskegon City Commission on the situation last week. Commissioners saw no particular problem with the water extension, even though the area is in an adjoining community, and authorized Kuhn to begin negotiating an agreement. In addition to helping local residents, city officials said it would ultimately add another interconnection between the city's water distribution system and the Muskegon Heights water system serving Norton Shores. Kuhn said that although the city would not stand to gain anything in the way of additional water sales, it's still the right course. "We're sympathetic to their needs," Kuhn said. Monday,
January 17, 2005 By Jeff Alexander, CHRONICLE STAFF WRITER Nugent Sand Co.'s treated wastewater could be discharged into Muskegon or Mona lakes instead of through a controversial pipeline into Lake Michigan. The Michigan Department of Environmental Quality and city of Muskegon have submitted seven alternatives to Nugent discharging as much as 8 million gallons of wastewater daily into Lake Michigan. Nugent already has a state permit to discharge wastewater into the Big Lake, but needs another permit to build a 600-foot pipeline through a Lake Michigan dune. Nugent wants to dispose of treated wastewater from its sand-mining process and lower water levels in a man-made lake that is the centerpiece of a 421-lot residential development planned for the mining site. Environmentalists oppose the proposed pipeline to Lake Michigan, saying it would harm a coastal dune and cause beach erosion. Opposition to the pipeline prompted state officials to suggest other discharge sites. The DEQ's proposed alternatives would have Nugent discharge the wastewater to one of the following:
The city of Muskegon added two alternatives to the state's list. They include:
Nugent officials made no new suggestions to the Lake Michigan discharge. "My client offers no new alternatives since it believes those that were considered at the hearing (the Lake Michigan discharge) are the only ones that are sufficiently feasible to merit consideration," Nugent attorney William Fulkerson said in a letter to the DEQ. Jamie Morton, a spokeswoman for the Lake Michigan Federation, said she is pleased with the state's alternatives. However, Morton said the state should conduct more tests for potentially harmful contaminants in Nugent's wastewater before it is discharged into any surface waters. Sending wastewater from Nugent's sand-processing operation to the county wastewater system makes sense in the short term, Morton said. But she said sending water from Nugent's lake to the wastewater system to maintain lower water levels after sand mining ends at the site would be overkill. Nugent produces high-grade sand for foundries and the auto industry. Local environmentalists are worried that fatty acids and pine oil Nugent adds to water to remove impurities from the sand could pollute Lake Michigan. The directors of both the Muskegon and Muskegon Heights water filtration plants have expressed concern about Nugent's discharge contaminating the source of drinking water taken from Lake Michigan for more than 120,000 local residents. The city of Muskegon adopted a resolution opposing the pipeline. DEQ officials have said Nugent's treated wastewater would be cleaner than Lake Michigan. However, state officials have said the proposed pipeline could increase beach erosion and damage the dune it would tunnel through. A Jan. 20 hearing is scheduled to discuss how to proceed with the case. There is no timetable for when the state will make its final decision on the pipeline. Fulkerson has said in the past that Nugent may sue the DEQ if the agency denies the pipeline permit.
Thursday,
December 02, 2004 Nugent
Sand Pipeline Case in Legal Limbo A prolonged battle over Nugent Sand Co.'s plan to build a wastewater discharge pipe through a Lake Michigan dune has become a procedural war between lawyers representing the company and the Michigan Department of Environmental Quality. The Norton Shores sand mining company wants to build a 600-foot-long pipeline through the coastal dune. The pipe would transport treated wastewater from its sand processing operation into Lake Michigan and help regulate water levels in a manmade lake that is part of Nugent's planned residential development at the sand mining site. Nugent already has a state permit to discharge up to 8 million gallons of treated wastewater daily into Lake Michigan. A state administrative law judge has recommended the DEQ grant a permit to build the pipeline. DEQ Director Steven E. Chester, who has the final say on the pipeline permit, stopped the planned project earlier this year when he demanded more information before making his ruling. The DEQ wants Nugent to explore alternatives to discarding its treated wastewater into Lake Michigan. That is where the attorneys took over. Lawyers for both sides are now engaged in a procedural tug-of-war over how the case should proceed. The dispute features some colorful comments. Nugent's lawyers in October said Chester exceeded his authority when he ordered a new hearing to gather more information. Nugent lawyer William C. Fulkerson called Chester's action "arbitrary, capricious and clearly an abuse of unwarranted exercise of discretion." The DEQ's lawyer, Assistant Attorney General John F. Leone, said Fulkerson's motion to block additional hearings in the case was an "embarrassingly nonsensical doublespeak spiel." Leone said Nugent's lawyers "should be ashamed." "Petitioner (Fulkerson) offers many theories and authorities, often duplicating and shell-gaming arguments ... in order to create as much ado as possible, apparently in hope of somehow rendering inapplicable the plain and simple authority explicitly granted Director Chester," Leone wrote in the state's latest motion. Fulkerson filed a new motion this week asking Administrative Law Judge Richard A. Patterson to reject the state's bid for a new hearing before Chester issues his ruling. The state, in turn, asked Patterson to reject Nugent's motion challenging Chester's authority to gather more information on the case. The state also wants Patterson to order DEQ and Nugent officials to develop possible alternatives to the company discharging treated wastewater into Lake Michigan. Patterson now must rule on how to proceed with the case before Chester rules on Nugent's permit application. That could take as long as a year, during which time Nugent's proposed discharge and residential development will remain in limbo. Environmental activist Jamie Morton said delays in the case are good for the dunes. "We don't want the pipeline through the dune or the discharge on the beach," said Morton, manager of outreach programs for the Lake Michigan Federation. "We think that would incredibly weaken the Sand Dune Protection and Management Act and open the shoreline to similar proposals." Tuesday,May
4, 2004 Saturday,April
10, 2004 Wednesday,April
7, 2004 Wednesday,April
7, 2004 Saturday,
February 28, 2004 Thursday,February
26, 2004 By Dave LeMieux and Bob Burns, Chronicle Staff Writers Saturday,
January 31, 2004 By Dave LeMieux, Chronicle Staff Writer Tuesday,
January 13, 2004 By Bob Burns, Chronicle Staff Writer
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