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County defends Nisbit mine permit (04/16/2014)
By Chris Rogers
Last fall, after two years of public debate, operators fired up the backhoe at the 20-acre Nisbit mine in southwestern Winona County, but the court battle over the decision continues. Last week, lawyers for a dozen county citizens who are challenging the County Board's approval of the mine and lawyers representing the county argued before the Minnesota Court of Appeals in Rochester.

At issue is the county's decision not to require an Environment Impact Statement (EIS) for the project a more in-depth environmental analysis than the Environmental Assessment Worksheet (EAW) that applicants filled out for the project and the county's subsequent decision to grant a Conditional Use Permit (CUP) for the project, which approved mining.

Attorneys for opponents contest that the county glossed over negative traffic, health, and environmental effects in its review of the project and ignored citizens' concerns and advice from state agencies in its decisions. Attorneys for the county assert that the county gave the project careful scrutiny that met all the requirements of law, noting that the county is not beholden to state recommendations.

The county never took "a hard look" at issues raised during the EAW and CUP process, argued attorney for the appellants, James Peters, in a written court brief. In response to valid issues raised in public testimony, the county gave such cursory responses as "comment noted," Peters stated. The county's failure "to consider the truck traffic, air quality from crystalline silica dust, water use, noise, [effect] on visual resources, stormwater runoff, and negative impacts on property values failed to meet [county] ordinance requirements of a thorough and complete review of a proposed project," and so the court should overturn the CUP, Peters wrote. Evidence shows that there would be significant environmental effects and an EIS is needed, he concluded.

Not so, countered attorney for the county, Jay Squires. The county addressed all of the issues raised during the approval process and had good reason to think that the 39 conditions imposed on the mine would adequately mitigate the environmental impacts.

Squires notes that the Minnesota judicial system is "extremely deferential" to local governments in these matters, and that the court is not allowed to "second-guess" whether the county made the right decision or whether the evidence supports the county's decision better than the appellants. Rather the court is merely charged with determining whether the county engaged in "reasoned decision-making" and had some substantial evidence supporting its decision, he wrote. "The county was not obligated to order an EIS simply because of the volume of [public] comments in the record because neighborhood opposition itself is an insufficient reason for a government body to prohibit an otherwise authorized action."

Another aspect of the case is whether the county properly evaluated the effects the Nisbit mine would have on the environment in combination with other mines nearby. When the Nisbit mine was being considered, numerous mines were proposed in the surrounding area, many of them by Minnesota Proppant/Minnesota Sands which had plans for a truck-to-rail terminal in St. Charles.

Some of those nearby mines were in Fillmore and Houston counties, which opted to refer the whole group of mines to the state for a joint EIS. Despite public comments, recommendations from the Minnesota Pollution Control Agency and Minnesota Department of Natural Resources, advice from the County Attorney, and evidence to the contrary, the county "arbitrarily concluded that the project was small, isolated, and experimental so that the EAW did not need any cumulative potential effects analysis," argued attorney for the appellants, James Peters in a written court brief.

In his written brief, attorney for the county Jay Squires, pointed out that just because state agencies advised Winona County to include the Nisbit mine in a state-run EIS, the county was not legally obligated to heed that advice. He noted that the law only requires cumulative effects to be considered when nearby projects are reasonably likely and sufficient information exists to anticipate their impacts, and argued that the county correctly determined that the development of the proposed mines was speculative.

Many of the proposed mines have yet to be developed; a neighboring Winona County mine never reapplied for a permit when the county's frac sand moratorium expired. When the truck-to-rail proposal folded under considerable pressure from residents of St. Charles, Minnesota Proppant/Minnesota Sands officials reported that most of the investors left to pursue mines in Wisconsin.

The Nisbit mine took nearly two years to be approved, was the subject of numerous heated public hearings, and divided the County Board. Commissioners Wayne Valentine, Marcia Ward, and Steve Jacob voted not to require a state-run EIS for the project, overcoming dissenting votes by commissioners Jim Pomeroy and Greg Olson last March. The same 3-2 split gave final approval for the mine's CUP last summer.

The Court of Appeals is not expect to issue a decision for weeks, but when it comes the ruling could trigger renewed environmental review for the project. 


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