Why Kolke Creek Matters
Kolke Creek - A Headwater Tributary to the Au Sable River
Shell Oil Co. (Shell) operated a production facility located on the Mount Frederick Road in Hayes Township, Otsego County, Michigan. During Shell’s operations toxic chemicals, benzene, toluene, ethyl-benzene and xylene (BTEX) were spilled. Those chemicals were part of a spill seeping into the environment from five different sources at a gas and oil complex called Hayes 22. A large toxic plume was created and is moving southwest toward a residential area and the headwaters of the Manistee River. Presently, two private water wells have already been destroyed.
Merit Energy purchased Shell’s interest in the wells and has assumed the responsibility for the clean-up. Merit Energy proposed a clean-up plan and received a general permit and certificate of coverage from the Michigan Department of Environmental Quality (DEQ). The general permit and Certificate of Coverage (hereinafter collectively referred to as the “Permit”) allows Merit to extract contaminated groundwater, treat it with an air stripper and filters. Thereafter, pipe the 1.15 million gallons of treated water per day, 1.3 miles over state land to Kolke Creek. This Creek flows into Lynn Lake and ultimately into the mainstream on the Au Sable River. The Anglers of the Au Sable (Anglers) and Lynn lake Property Owners (LLPO) are challenging DEQ’s granting of a permit to allow Merit Energy to discharge over a million gallons a day of treated water from the Manistee headwaters into the headwaters of the Au Sable mainstream. Anglers and LLPO contend that the permit was issued without adequate notice to the public and without the involvement of Michigan Department of Natural Resources (MDNR) field staff. No environmental impact statement was prepared and no public hearing was held. The effects of this dumping, if it is allowed to proceed, include increased flows and water levels, erosion, sedimentation, pollution, changes in water chemistry, temperature modification of the local ecology and unnatural transport of water between watersheds.
The Anglers and LLPO further contend that viable alternative methods exist for Merit Energy to stop the plume and cleanse the contaminated water on Merit property. The proposed alternatives do not require the transfer of 1.15 million gallons of water per day from Manistee’s watershed to the Au Sable’s watershed. On site remediation is also preferred because in the event of equipment failures or leaks, everything is kept within the boundaries of the Hayes site. Anglers and LLPO seek a permanent injunction prohibiting Merit’s proposed containment of the plume and remediation of the contaminated water.
The Anglers hope to halt the DEQ approved method of air-stripping petrochemicals from the groundwater and then dumping the so called treated water into another watershed. Furthermore,this lawsuit is important because it tests the right of the oil industry to use the headwaters of our lakes and streams as a dumping ground for its treated wastewater. The Merit Energy remediation proposal is a very large artificial intrusion on a natural water system that has reached equilibrium over centuries.
Finally, what would be the environmental and economic loss if Merit Energy’s proposed remediation method does not work? The entire mainstream would suffer the effects of BTEX contamination. Such a result would be catastrophic environmentally and economically for headwaters and the entire Au Sable mainstream. Anglers believe this may very well be the most important litigation of our time effecting of the State’s rivers and watersheds.
Kolke Creek - Reverse Chronology (2005 to present)
November 2008 - The Court of Appeals has scheduled a hearing December 9th in Grand Rapids. There have been 2 procedural victories in the Court of Appeals over filing by Merit Energy. At this point Merit's legal alternative as coming to a standstill and it time to go forward with the remediation efforts on-site.