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Bay Harbor Update

UPDATE ON THE REMEDIATION AT BAY HARBOR PROPERTIES AND EAST PARK

February 2011

Over 80 years of cement manufacturing left behind an estimated 2.5 million cubic yards of cement kiln dust (CKD) at what is now known as Bay Harbor Properties and East Park. When water comes into contact with the CKD, it can leach substances from the CKD and potentially contaminate adjacent waters. This leachate can have high pH and can contain heavy metals such as mercury, arsenic, and lead, which pose adverse impacts to water quality, fish and other aquatic life, and, potentially, human health with direct contact. CMS, a prior partner with Bay Harbor who retained environmental responsibility for the site, continues to implement interim measures to prevent leachate from entering Little Traverse Bay and work toward a solution that will address the problem permanently. 



Tip of the Mitt Watershed Council has been actively involved in the remediation efforts at Bay Harbor and East Park since the contamination came to light. We are working to ensure the protection of our Northern Michigan environment, economy, and way of life. The contamination and remediation is highly complex and intricate and has no easy solution. After years of data gathering and interim response actions, it is expected that decisions will be made during the year regarding the final remedy for the CKD contamination and leachate at Bay Harbor Properties and East Park. The remaining steps left include:
  • A Decision on the Emmet County Deep Injection Well Permit
  • CMS obtaining a waiver for mercury venting to the Lake under Rule 716(17) of Part 201, Environmental Remediation, of the Michigan Natural Resources and Environmental Protection Act
  • A Negotiated Final Agreement between the State of Michigan and CMS
Based upon the information we currently have, we would like to tell you our goals for the remediation efforts, how we are working to achieve those goals, and provide an update of recent activities.

Our Goals:

1. Zero Leachate Entering Lake Michigan

2. Safe Treatment and Disposal


The Watershed Council would ideally like zero CKD leachate entering Little Traverse Bay through various prevention and collection methods along with safe treatment and disposal of collected leachate that meets all water quality standards.

PREVENTION - Prevent leachate from forming

To attain the ultimate goal of zero CKD leachate entering Lake Michigan, a reduction in the volume of leachate created is vital. This can be accomplished by:
  • Removal of CKD in appropriate locations
  • Diversion of ground water before it comes in contact with cement kiln dust
  • Preventing surface infiltration of water

COLLECTION - Collect what leachate cannot be prevented

100% of leachate produced needs to be collected before entering Little Traverse Bay.

Unfortunately, the goal of zero leachate entering Litte Traverse Bay is not going to be met due to the complex site conditions and the intricacy of the contamination.

TREATMENT AND DISPOSAL - Treat and dispose leachate to meet water quality standards

All collected leachate is treated and disposed of safely meeting water quality standards to ensure the CKD leachate will not pose threats to the surface and ground water resources of Northern Michigan. We do not support dilution as the sole treatment method for collected leachate. Treatment and disposal technologies are constantly evolving and emerging. The Watershed Council will be here for the long term to ensure that the most appropriate best available technologies are encouraged now and in the future.

Tip of the Mitt Watershed Council: Working to Protect Our Waters

Tip of the Mitt Watershed Council has been actively involved with this issue for many years through a variety of means. While the public may only see a snapshot of our involvement, we have been and are highly engaged in the remediation efforts on a weekly, if not daily, basis through a multitude of actions such as:
  • Reviewing all pertinent documents
  • Providing comments, concerns, recommendations, and other ideas on the process to decision makers
  • Requesting additional studies and data collection when necessary
  • Participating in permit application and public comment processes
  • Researching and evaluating potential remedial options
  • Communicating regularly with all the involved parties
  • Educating our members and the public
  • Holding the involved parties accountable
  • Providing assistance to other organizations and entities that wish to participate in the process
  • Acting as a conduit for information exchange between those involved and the public
  • Participating in the Little Traverse Bay CKD Regional Stakeholder Group
The regulators and stakeholders from both sides respect our involvement and include us at many levels of decision making. The Michigan Department of Natural Resources and Environment (MDRNE), U.S. Environmental Protection Agency (EPA), and CMS, and others respond to our comments and suggestions and we see results from our involvement. Through these activities and more, the Watershed Council is working to ensure the remediation is done properly and thoroughly.

Status of the Remediation Efforts at Bay Harbor Properties and East Park

CMS Bay Harbor Map
(Image provided courtesy of CMS Land Company)


Bay Harbor Properties (also known as the Development)

  • CMS has installed approximately 2,800 feet of collection lines along the shoreline in front of Bay Harbor properties
  • The EPA ordered CMS to augment three areas with continued releases of high pH leachate to improve the effectiveness of the interim recovery system.
    - At the east end, a barrier wall was installed to redirect the leachate into the
       collection line preventing it from reaching Lake Michigan.

    - In the central area, referred to as Pine Court, a targeted well to collect leachate
       was installed in the golf course.

    - In the west end, approximately 10,000-13,000 cubic yards of CKD and soil were
       removed from the beach.
  • Additional augmentation, known as the West CKD Leachate Release Mitigation Project, occurred during the summer of 2010 and the purpose was to deepen the collection line and install a wall that will co-support the collection of leachate and keep out lake water.

Village Harbor

  • Removal actions in the southwest corner were completed in October of 2008.
  • A 400-foot stretch of CKD and leachate accumulation along the bottom of the boat channel of Village Harbor Lake was capped.

East Park

  • CMS completed interim activities including removal and relocation of the eastern most portion of CKD, installation of a collection line along the shore, and installation of a liner over the CKD to prevent surface infiltration of water.
  • CMS also installed upgradient ground water diversion wells to prevent ground water from coming in contact with the CKD.
  • Upon the Watershed Council’s suggestion, CMS installed a stormwater management feature, the Downstream Defender, with Resort Township generously accepting responsibility for future maintenance of the feature.
  • The regulators approved the Remedial Investigation and Alternatives Evaluation document outlining the results of data collection and potential final remedies in April of 2011 for East Park.
  • East Park reopened to the public in June of 2009 with a “Public Health Advice” from the Health Department of Northwest Michigan. The “Public Health Advice” is a precautionary notification to the public that lake water at the park may cause skin or eye irritation and recommends rinsing with tap water after contact with the lake.

Data Collection

  • CMS has collected a significant amount of data within the Bay Harbor Properties and East Park that will be used to design a long-term solution.
  • One year of modeling and data collection to measure the concentrations of mercury venting to Lake Michigan was completed. The one year of mercury flux data varied significantly and while some variations in ground water is to be expected, such large seasonal and interannual variations need further data collection and analysis.
Mercury Flux Data 2010 Bay Harbor and East Park

Long-Term Solution

  • As for the long-term final remedy to address the contamination, the Watershed Council believes the solution will have to be a multifaceted approach incorporating a combination of activities.
  • The Watershed Council wants to see a full evaluation of all alternatives and treatment technology options to achieve the best outcome for the water resources and citizens of Northern Michigan.
  • Remedial Investigation and Alternatives Evaluation (RI/AE) documents for the Development (Bay Harbor Properties) outlining the results of data collection and potential final remedies was approved by regulators in May 2011.
  •  The Watershed Council provided comments stating that one year of flux data is not adequate and it was preliminary to be approving the Remedial Investigation and Alternatives Evaluation based upon such limited data, that the 30-year cost estimates are significant underestimates of the true associated costs and that some of the costs provided are not accurate and, subsequently, cannot be used for comparison. We also recommended requiring consideration of additional alternatives for Pine Court including partial removal and capping as part of stormwater improvements, optimizing the diversions systems with available resources such as site specific models, and using native vegetation during restoration to enhance wildlife habitat.
  • Click here to see the full comments submitted by Tip of the Mitt Watershed Council on the RI/AE for the development.
  • Since the RI/AE documents were approved, the State of Michigan, with EPA in an advisory role, began negotiating an agreement with CMS Land Company that will govern the long-term remedy. The State has 120 days to complete the negotiations.
  • Resort Township instituted a 9 month moratorium on injection wells in March 2011.  This effectively halts CMS from pursuing the deep injection well in Emmet County during that time period.

716 Waiver and Technical Impracticability

  • Rule 716 (17) of Part 201, Environmental Remediation, of the Michigan Natural Resources and Environmental Protection Act allows a person to appeal to the Director of the MDNRE to set aside the ground water surface water interface criterion (state water quality standards), if the person has controlled the source of ground water contamination and has demonstrated that compliance with a ground water/surface water interface criterion developed under this rule is unachievable.
  • Based upon the mercury flux data, it is expected that the long-term option will result in mercury venting to the Little Traverse Bay in exceedance of the state water quality standards so as part of the final long-term remedy, CMS has requested a 716 waiver from the MDRNE.
  • This is the first request for a 716 waiver the State of Michigan has EVER received. Therefore, the MDNRE is relying on an EPA process called technical impracticability (TI) to determine whether to grant the waiver. The TI process is where remediation of contaminated ground water to desired cleanup levels may be deemed technically impracticable from an engineering perspective.
  • CMS submitted a Technical Practicability Demonstration to the EPA and MDRNE for review on August 31, 2009.
  • Tip of the Mitt Watershed Council, along with Michigan Environmental Council, do not believe that CMS has met the criteria for Technical Impracticability due to a multitude of deficiencies in the Technical Impracticability Demonstration. We do not feel that CMS has controlled the source of ground water contamination and has not demonstrated that compliance with a GSI (water quality standard) criterion developed under Rule 716(17) is unachievable at this time. Therefore, we recommended that the MDNRE indicate that additional information is required to make the determination, per the law, and not grant resolution or a waiver under Rule 716(17) at this time.
  • Click here for the full comments on the Technical Impracticability Demonstration and the 716 waiver submitted on behalf of Tip of the Mitt Watershed Council and Michigan Environmental Council.

Disposal Options

  • CMS is currently disposing of all collected leachate at a deep injection well outside of Johannesburg.
  • CMS is seeking local disposal options including a deep injection well in Emmet County and on-site treatment and discharge to Little Traverse Bay.

Deep Injection Well

  • On February 7, 2008, EPA and MDNRE approved a permit for a deep injection well in Star Township, Antrim County. While the Watershed Council did not oppose approval of the permit for the deep injection well, we still had concerns with respect to additional financial assurances and prohibiting the injection of leachate that has not been treated to lower the pH. The Alba Well was challenged in the court system and is currently in an indefinite stay which basically puts the case on hold.
  • CMS submitted a permit application to the MDNRE and EPA for a deep injection well in Emmet County. A public hearing was held on January 10, 2011. The permit application is still pending.
  • Click here for the Fact Sheet and the Draft Permit and more information is available on the EPA website at http://www.epa.gov/r5water/uic/beeland/index.htm#permit.
  • Compared to discharge into Little Traverse Bay, a deep injection well could avoid direct discharges into the aquatic ecosystems where mercury and other contaminants can accumulate through ecological processes. Therefore, deep injection is the preferred method of disposal if the well is properly constructed, operated, and maintained and our recommendations to the permit are made. 
  • Click here to see Tip of the Mitt Watershed Council’s full comments on the proposed Class I non-hazardous deep injection well in Emmet County.

Discharge of Treated Leachate to Little Traverse Bay

  • CMS applied for a permit from the MDNRE for a National Pollutant Discharge Elimination System (NPDES) permit under the federal Clean Water Act to discharge leachate to the surface waters of Lake Michigan. This permit was issued and took effect on December 29, 2010.
  • Click here for the final permit that was issued. Also click here for the MDNRE Responsiveness Summary which is a summary of the comments received on the NPDES permit application and the response by MDNRE to those comments.
  • In the end, the permit was strengthened and will be more protective of our water resources and many of the modifications made were based upon the comments provided by Tip of the Mitt Watershed Council and Michigan Environmental Council. Click here to read the comments submitted.

Regional Stakeholder Group

  • A Regional Stakeholder Group has been established, with financial assistance from U.S. EPA’s Technical Assistance Services for Communities (TASC) Program, to represent the interests of the communities and stakeholders, to receive and share information, and to provide advice and input regarding the remediation of the Bay Harbor/Little Traverse Bay Cement Kiln Dust Site.
  • The Watershed Council is serving as a member of the Regional Stakeholder Group.
  • The last regularly scheduled meeting of the Regional Stakeholder Group is scheduled for February 2011. Additional meetings or conference calls may be scheduled due to site activity such as the final agreement being signed or public comment on the final long-term action plan. 

Tip of the Mitt Watershed Council will continue to monitor the situation closely, working with the involved parties to ensure that the remediation is done properly and thoroughly to protect public health and environmental quality. If you have any questions, please feel free to contact Jennifer McKay at the Watershed Council at 231-347-1181 or by email at jenniferm@watershedcouncil.org.


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