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Sand traffic rules divide City Counci (05/08/2013)
By Chris Rogers

On Monday night, the Winona City Council called for strengthening a draft ordinance amendment that would require Traffic Impact Analyses (TIAs) for all new frac sand facilities and mines. The issue was divisive. On one side, council members voiced opposition to additional traffic regulations, such as the proposed ordinance, while other council members argued against the proposed ordinance because it was not strong enough. A narrow majority favoring additional regulation called for stronger protocols for monitoring whether facilities exceeded allowed levels of truck traffic as well as for enforcing those limits. They also called for including city and possibly state truck routes in TIAs and taking a broader look at how to account for the cumulative traffic impact of multiple frac sand facilities in the city.

A final decision on the draft amendment was not reached. City staff were directed to look into options for handling monitoring, enforcement, truck routes, and cumulative impacts and present a report. Council will discuss the issue further and could amend the ordinance based on staff's report.

In February, the City Council passed rules that would require a TIA for any new facility that generates over 200 truck trips per day or that contributes more than 20 percent of the traffic on a non-truck route street. The new proposal would single out frac sand facilities and mines of any substance, requiring that TIAs be done regardless of the volume of truck traffic coming and going from the facilities. Both the existing ordinance and the proposal allow the city engineer to waive TIA requirements.

In April the Planning Commission voted 8-1 to recommend denying the proposed TIA requirements. While the City Attorney advised that regulating traffic from a single industry is within the city's legal authority, members cited concerns about the fairness of singling out the frac sand business in their recommendation for denial.

Justifying his support of frac-sand-specific traffic regulation, council member Allyn Thurley said, "This is a result of what some members of the council have been hearing. The public has asked us to specifically target this industry because of their overriding health concerns."

Health concerns center upon silica dust that concerned citizens believe will be dropped by trucks and increased diesel fumes from higher truck traffic. For others, the sheer number of trucks frac sand companies will bring into the city of Winona is a concern. One mine, the David and Sherry Nisbit mine in western Winona County, could generate up to 280 truck trips per day.

"This is the industry that's going to have the impact," said Winonan Steve Schild during a public hearing before the council on Monday. "There's no other industry in town that is going to generate hundreds of truck per day."

"I think a TIA is a chance to get a handle on the problem before we have a problem," said Winona County resident Doug Nopar, of the Land Stewarship Project. "And we're on the verge of having a problem."

Krage: 'Who's

going to count?'

Council member Gerry Krage raised concerns about enforcing TIA requirements, asking city staff, "Who's going to count [the trucks] and what's going to trigger that [TIA]?"

Assistant City Planner Carlos Espinosa explained that no one goes out and counts the trucks, the number of truck trips are based on the projections made by businesses when applying for a Conditional Use Permit (CUP). Under the current ordinance 200 truck trips is one of the thresholds that requires a TIA.

Krage asked what happens if, for whatever reason, the number of truck trips at a facility were to increase to more than 200. "What triggers the count if the business operator doesn't say, 'Hey, Carlos, I'm up to 250?" Krage asked. "Would it be the neighborhood? Would it be a complaint?" He added, "What is the penalty if I don't tell you?"

Espinosa said that if there were complaints, "the first step would be to talk to the business and see what was going on." He added that, if necessary, city staff could examine the situation.

As far as penalties are concerned, City Attorney Chris Hood explained that "if [conditions to a CUP] are violated, the ultimate hammer that we have is to revoke the CUP, which would shut down that business. That is a pretty big hammer."

Mayor Peterson asked if businesses are required to keep a "log book" of truck trips for city staff to review. They do not, but the city could request that, Espinosa replied. "Why don't we request that up front?" asked Krage.

Alexander: Why do we need more traffic rules?

Council members Paul Double and George Borzyskowski presented a motion to reject the proposed ordinance. That failed in a 3-4 vote.

Council member Michelle Alexander, who voted to reject the ordinance, said, "I don't really see the need for it when the ordinance already has it covered [TIAs]. I'm a little confused by why we're looking at it again."

Double argued that enforcement issues needed to be addressed, but not just for frac sand truck traffic. "We need to ask the Planning Commission to look at all ordinances and design mechanisms where those ordinances have a penalty, that has clarity to it, and not just pick one and have a band-aid over here and a band-aid over there," he said. "It goes to things as simple as getting a dog license," he added.

Council members Pam Eyden, Krage, Thurley, and Mayor Peterson voted against rejecting the ordinance. Peterson explained his decision by saying, "I share some of the council members concerns about not including truck routes and enforcement." He added, "I don't like overruling one of our commissions or boards but in this case I'm not comfortable going forward with it as it is."

Next steps: start over?

At coming council meetings, staff will present options for "tightening" monitoring and enforcing TIA requirements, including city truck routes in TIA requirements, as well as options for dealing with the cumulative traffic impact. Initial ideas that were mentioned included fines for companies that violate rules and requirements that companies keep public logs of all truck trips. City Attorney Chris Hood indicated that the city has authority over regulating city-owned truck routes, but regulations for county- and state-owned roads would have to be approved by those governments.

However, it may be a month or more before a final decision can be made. Hood stated that if changes to the ordinance are too different from what was recommended (for denial) by the Planning Commission, the changes will have to be routed through public hearing in the Planning Commission again.

"Because we're covering topics that really are not subject matter of the current ordinance before us […] that ultimately is going to have to go to Planning Commission first to make a recommendation and then come back to council because that is the process," Hood said.

"Seriously?" asked Krage. "They did all this work and if we just want to include a few words we have to send it back?"

"I don't think this is just a few words; it looks like there's quite a bit of stuff here," Hood replied. Hood continued saying that the issues the council is asking to hear about and possibly add to the draft ordinance—monitoring, enforcement, including truck routes, and handling the cumulative effect— are separate subject matter from the ordinance before them.

Krage said he agreed that accounting for the cumulative effect of frac sand truck traffic is a separate issue as far as council action is concerned, but took issue with sending changes regarding monitoring, enforcement, and including truck routes back to the Planning Commission.

"I wanted to simplify the process to take their good work and add not too much to it," he said.

Double pointed out that having an opportunity for the council to give input on staff comments before changes are routed to the Planning Commission will be beneficial.

"The advantage is that we have the opportunity to shape it if it needs shaping before we run it through the Planning Commission," he said.

A motion to direct staff to present options for handling monitoring, enforcement, truck routes, and cumulative impacts passed 6-1 with Alexander casting a dissenting vote.

A separate ordinance amendment defining frac sand and stating that the city may ask other governments to include TIA requirements for facilities that would send trucks to Winona did pass in a split vote. At issue was a sentence saying the city would not be prevented from asking other governments to require TIAs for facilities that would affect Winona. Alexander said she thought asking other governments to regulate on Winona's behalf was improper.

It is unclear what impact the amendment or any requests stemming from it would have. Such requests would have no legal authority over other governments. Additionally, the city could make such requests with or without the ordinance change, Espinosa pointed out. Finally, the ordinance does not require that the city make a request, it simply states that the city may make them.

However, Espinosa backed the TIA request clause. "If we have large projects happening outside of city limits generating large numbers of trucks, it would be good, in the future, for those who are reading the ordinance to know that we have the option to ask for that type of analysis." 


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