The Minnesota Pollution Control Agency (MPCA) sided with petitioners last week, ruling that CD Corporation, the company that loads barges at the city dock, must go through an environmental review if it wants to change its frac sand barge loading operation. CD Corporation owner Dan Nisbit said that since he must now go through a months-long Environmental Assessment Worksheet (EAW) process, he might increase the number of sand barges in his requested permit change in order to accommodate for future expansions.
"It's not a death sentence," Nisbit said of the ruling. The MPCA ruling only applies to the city permit change Nisbit applied for last month, not Nisbit's currently permitted sand loading operation. Once an EAW is completed, it will still be up to the city to approve or deny Nisbit's request, although the MPCA could decide to require a more in-depth environmental analysis.
Referring to his initial request, Nisbit said, "Our proposal for an amendment to the [conditional use permit], was truly asking for flexibility. It's not worth going through all the stages and hoops they're asking for now. Going forward we'll make sure we're asking for what we might need in the future." He added, "We're really now looking at pulling back the amendment proposal and starting over with a new one." Nisbit said that he had just received the notice last Friday and had not made any decisions yet.
CD Corporation had asked the city to amend limits on the number of sand barges the company can load in its conditional use permit (CUP) from a monthly cap of 48 sand barges to an annual total of 384 barges. That figure is equal to an average of 48 barges over an eight-month shipping season, but would allow CD Corporation more flexibility on a month-to-month basis. The change would allow the company to make up for river closures and keep its shipment contracts despite months of low water, flooding, or ice, Nisbit explained to city officials last month.
However, citizens filed a petition for an EAW with state officials, arguing that, under a new law, CD Corporation must submit an EAW to the MPCA. The 2013 law, which had never been applied before, requires any frac sand facility with an annual throughput of over 200,000 tons to complete an EAW. CD Corporation shipped over 200,000 tons of sand last year. Winonan Steve Schild first drew attention to the law at a July meeting of the Winona Board of Adjustment, before the EAW petition. Schild said that while he was not a lawyer, it seemed as though the new law would apply to CD Corporation. Assistant City Planner Carlos Espinosa disagreed, telling the board, "Because this isn't an expansion of what he's already permitted to do …. in staff's opinion [the law] would not apply to this particular request."
State officials agreed with Schild, however. First the Minnesota Environmental Quality Board (EQB) determined that because of the 2013 law, the MCPA, not the city of Winona, was responsible for determining the need for an EAW. Then the MPCA made its ruling last week that the CD Corporation operation is subject to the new law and must conduct an EAW.
Schild said he was pleased with the MPCA's decision, but disappointed that the burden on ensuring compliance with the law fell on citizens. "It's very difficult for citizen groups to be taken seriously," he said. "We don't have the technical expertise, the resources, financial or otherwise, and we don't have the time to do this checking." He added, "I am not a scientist; I am not a master at interpreting laws. It would have been very nice if it would have been the city or some other layer of government or some other regulatory body that would have looked at that law."
"That was their ruling, so going forward here we're going to work closely with the MPCA and basically get everything taken care of with them before we move forward with anything new," Nisbit said.
Once the EAW is completed, there will a monthlong public comment period, and then the MPCA will review the EAW and decide whether a more in-depth environmental review — an Environmental Impact Statement (EIS) — is needed, or whether the EAW provides enough information. If the MPCA decides that an EAW is sufficient, the EAW will be submitted to the city, which will be ultimately responsible for weighing the information and deciding whether to grant CD Corporation's request.