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County Board split vote means EAW for Nisbit mine (10/03/2012)
By Sarah Squires
After a split vote from the Winona County Board Tuesday, the first frac sand mine proposed in Winona County since the expiration of a mine moratorium must undergo an environmental review. The county will not consider the requested mining permit until the review is completed.

The environmental review, called an Environmental Assessment Worksheet (EAW), will examine potential environmental and safety effects of the proposed 20-acre mine in Saratoga Township. It would also suggest measures that could be implemented to mitigate any possible environmental damages. A citizen petition submitted to the state Environmental Quality Board (EQB) prompted county commissioners to consider the EAW. The EQB determined the county was the regulatory government unit that should decide whether the environmental study was needed.

Commissioners Jim Pomeroy, Greg Olson and Mena Kaehler voted for the environmental study, and commissioners Marcia Ward and Wayne Valentine voted against it.

Commissioners mentioned a legal memo from County Attorney Karin Sonneman during deliberation, a memo that was not made available to the public. Sonneman confirmed that she had given commissioners a “confidential” memo on the Nisbit EAW issue, and cited attorney-client privilege as the reason the public would not be able to see it.

Tom Rowekamp, representing Dave Nisbit, said the EAW would likely take about 75 days to complete, and that would delay any mine activity until next year.

The process

Winona County Planning and Environmental Services Director Jason Gilman told the board that the planning commission had reviewed the EAW issue and had recommended against the special environmental review following the split vote of 4-3. County planning staff went through a list of concerns the citizen petition outlined as reasons the mine proposal should be required to complete an EAW. Gilman said staff had not uncovered any substantial reasons to require the environmental study. But, he added, the Minnesota administrative rules for evaluating the need for an EAW based on a citizen petition were different from the evaluation criteria for such a study without the citizen demand. An EAW can be required after a citizen petition, he said, on a more “speculative basis.”

The administrative rules allow a government unit to require an EAW not just when environmental dangers are present, but also for projects where there is a “possibility” of significant environmental effects, or “with the perception of such.” Quoting Minnesota’s “Environmental Review Rules Guidance for Discretionary EAWs,” the staff report states, “In many cases the discretionary EAW is ordered on projects that are expected to be controversial in nature, or that would likely be petitioned for environmental review anyway.”

Commissioners quoted the sections that allowed an EAW to be required for those projects with the “possibility” of significant impact and those “expected to be controversial” during discussion prior to the vote Tuesday.

Discussion

The citizen petition prompting the EAW included dozens of reasons why the environmental review should be required. Included were concerns about respirable dust, added truck traffic, potential harm to the tourist industry, declining property values near mines, and effects on groundwater and private wells. Planning department staff addressed each of the reasons cited in the report, although admitted there was not enough data to confirm whether some concerns were justified.

Commissioner Pomeroy said staff members did an excellent job on the report, but questioned the responses to several of the concerns listed. Some responses indicated that the data was inconclusive, from questions over whether property values would fall for homes along haul routes to whether the industry would have an effect on tourism. He said those kinds of answers were not what he was looking for. One concern about respirable dust included a staff response that simply said there were no state or federal standards for ambient air adjacent to these kinds of facilities other than those required for occupational health. Pomeroy said he understood that, but added, “Nor were there any of those rules and regulations when it came to asbestos.”

I’ve heard from a lot of people who live out there, said Pomeroy, who are frightened, who are threatening to move because of fears over the proposed mine. Citing the ability of the county to impose an EAW for projects where there is a “perception” of significant environmental effects, Pomeroy said he would support requiring an EAW.

Commissioner Olson agreed, “I think we owe it to all the citizens of the county to do it right.” He said he was hoping that the applicant would volunteer to do the EAW, adding it was the “politically correct” thing to do.

After her motion to not require the EAW did not pass, Commissioner Ward said she didn’t think an EAW would really answer all the questions that were being asked. She said the county had studied the issue extensively throughout the moratorium, and that EAWs won’t likely be more detailed than the conclusions drawn by the county’s investigation into the issues. An EAW would simply do just what the county had already done, she added, call on various state agencies to weigh in. “We’ve used those resources,” she noted. “An EAW is not going to give us any definitive answer we don’t have today.”

Ward also said the 20-acre mine would be a good place to start collecting the needed data on the industry, given its size and scope. “This is a 20-acre site,” she said. “What better place to start building a database to make fact-based decisions?”

Olson said the discussion at the board table showed the mine was “expected to be controversial.” Will an EAW settle that? he asked. Probably not, he answered, but added the board still had the duty to try to answer the public’s questions on the proposal.

Board Chair Mena Kaehler said the planning department and planning commission had done a good job examining the proposed mine and the petition for the EAW. The planning commission recommended against the EAW, but she explained that its job was to look at the individual mine, while the board’s job was to look at the county as a whole. My township is right next to the proposed mine site, she said, and the issue is dividing the community. A lot of the concerns could be addressed through the conditional use permit process, she said, but without an EAW, there would be a vast number of people who felt the board didn’t listen to them.

Kaehler, who is up for reelection in November, said people had threatened not to vote for her if she didn’t vote one way or the other on the EAW question. It may be like some people think, she said, and the EAW may not bring any new information to the table. But, the study would “give people more confidence” and “they’ll know that [we] listened,” she said. “It’s a smaller mine, and it’s a short duration [for mining activity], but it’s also a big project for the people in the area.” Kaehler said she hoped the environmental study would not delay the project much, adding that since much of the work had already been done by the county and applicant, she didn’t think that it would.

Commissioner Valentine said that the Winona region has always been a transportation hub, and said he didn’t support requiring the environmental study. He objected to the number of people who had signed the citizen petition who did not live in Winona County, some who didn’t even live in Minnesota. He reminded the board that when the zoning ordinance was up for a vote, a citizen petition against the ordinance was signed by four or five times as many residents, and the county board had voted to adopt the ordinance anyway.

Because the EAW will be required, the board tabled the permit application for the mine, which cannot be voted on until the environmental review process is complete. 

 

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