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February 10, 2006EditorialBay Harbor lawsuit is a chance to learn moreLet's hope a recent lawsuit filed by Bay Harbor property owners Richard and Robin Franks will get us to the bottom of the cement kiln dust piles and reveal how a multi-million dollar luxury resort happened to be built on a known toxic site - with state approval - during John Engler's tenure as governor.Here's what we know from 20 years of state and federal documents obtained last year by the Record-Eagle: - Toxins were detected on the former Penn-Dixie Cement plant site in 1988 when elevated levels of arsenic and heavy metals were found in shoreline seepage. But the seepage wasn't linked to the kiln dust piles by the state Department of Natural Resources until two years later. - CMS Energy acquired the property for $3 million after the 1993 death of developer Lawrence LoPatin, who owned it. CMS teamed up with Johnson to develop what would become Bay Harbor. - In 1994, the Engler administration, CMS, Johnson and Boyne USA signed a "covenant not to sue," agreeing that toxins in the kiln dust piles "shall not be considered a future condition" for action against signatories - provided certain remediation steps were taken. - By 1996, the remediation system was already generating concerns. Environmental Protection Agency inspectors later would criticize the covenant's kiln dust solution, saying it failed to use available conventional technologies and engineering that likely would have avoided the contamination problem. - In late 2000, a Department of Environmental Quality analyst found dark brown seep stains near a kiln pile. In early 2004, Petoskey shut down a remediation system on one pile because it clogged city treatment pipes, exceeded contracted daily water discharge to the plant and the discharge often topped maximum allowable arsenic levels. CMS was informed of the shutdown, but the DEQ didn't find out until seven months later during an inspection of the city treatment plant. The timeline created from the documents is littered with questions. At the heart of the Franks' lawsuit is yet another: Were they adequately informed that their $710,000 lot on Coastal Ridge Drive was on top of a toxic site? Their lawsuit accuses Bay Harbor and CMS of being negligent, fraudulent and conspiring to conceal environmental concerns from land buyers. Bay Harbor developers deny that, saying they did inform the Franks about the kiln dust contamination in a "purchase information booklet." It's true that the Bay Harbor site, an abandoned limestone quarry, was a moonscape and an environmental wasteland in the 1980s. And it's true it needed to be cleaned up. The "not-to-sue" agreement between the state and developers, however, suggests that the intention was to protect potential profits - not Lake Michigan, the people who bought the property, the Little Traverse Bay community or state residents.
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