MEMO
To: Buffalo County Board of Supervisors
From: Mike O’Connor
Re: Testimony SUPPORTING an extension of the Moratorium
Date: 18-September, 2012
________________________________
I would like to offer testimony supporting an extension of the frac sand mining Moratorium. Here are the reasons why I support such an extension.
1) The conditions of the Moratorium have not been met
The Buffalo County Zoning Ordinance lists various factors that must be considered in deciding on a CUP application, including:
- Its compatibility with existing uses on adjacent land,
- Its harmony with the future development of the district, and
- Its relationship to the public interest, the purpose and intent of the ordinance and substantial justice to all parties concerned.
The very first stated purpose of the Zoning Ordinance, in turn, is “to promote the public health, safety and general welfare.”
In passing the Moratorium on frac sand mining in March 2012, the Buffalo County Board of Supervisors found that frac sand
“may have an impact on air and water quality,” “may affect the health and safety of county residents,” and “could impact roads and infrastructure within the County.”
The stated purpose of the Moratorium, therefore, was
“to allow the County adequate time to study the possible impacts that nonmetallic mining operations may have on the health, safety and welfare of the residents of Buffalo County including air quality and water quality concerns and potential impact to the infrastructure of the County, to determine the advisability of amending its Comprehensive Use Plan Strategy and to review and consider amending or adopting other police power or zoning ordinances so as to effectively regulate nonmetallic mining operations in the public interest” (emphasis added).
Since the Moratorium took effect, staff members from various Buffalo County departments have completed several preliminary studies about the possible impacts of frac sand mining and all but one of the studies suggest extending the Moratorium to allow more time for the staff to complete the tasks they were charged with.
The concerns about frac sand mining set forth in the Moratorium are factors suggesting a detrimental effect on “the public interest” and a strong likelihood that many “parties concerned” would be denied “substantial justice” by the commencement of frac sand mining operations. Studies addressing these concerns have been started but are not complete and thus the County has not yet addressed the concerns that prompted the Moratorium.
Proceeding with allowing new applications for sand mines will mean that the BOA will be making decisions without a policy framework in place to guide them. They, and the Zoning office, will be unable to clearly specify to applicants what constitutes sufficient information to make credible findings relevant to;
- The significant public health and safety concerns and open questions identified in the Moratorium,
- The current use of the adjacent lands or a finding about the compatibility of a large-scale industrial frac sand mine with those uses,
- The relationship of the proposed conditional use to the public interest, the purpose and intent of the ordinance and substantial justice to all parties involved), or
- The relationship between the proposed frac sand mine and the public interest
The law of Buffalo County, as stated in the Moratorium and thereby adopted into its Zoning Ordinance, expressly provides that the County currently has insufficient information on which to be able to assess whether frac sand mining is consistent with public health and safety and needs time for further study and to adopt adequate regulations.
Almost none of that work is complete, the staff is asking for more time to complete their studies and the policy-makers have only just begun making the changes recommended in the Moratorium and the staff reports. The Moratorium should be extended because the work isn’t done.
2. Frac sand mining is currently an inconsistent use under the Zoning Ordinance
Under the Buffalo County Zoning Ordinance, a CUP may only be issued to allow one of the uses specifically enumerated in the Zoning Ordinance.
Because most if not all of the property that is likely to be proposed in frac sand mine applications is in the Agricultural District, any allowed conditional use must be listed in Section 41 of the Zoning Ordinance.
Among the conditional uses that may be carried out in the Agricultural District upon issuance of a CUP is the following, as stated in Section 41:
Manufacturing and processing of natural mineral resources indigenous to Buffalo County incidental to the extraction of sand and gravel and the quarrying of limestone and other rock for aggregate purposes, including the erection of buildings, and the installation of necessary machinery and equipment incidental thereto, but not the storage of cement, asphalt, or road oils or the mixing of concrete or black top or related materials, provided that any county, town, or municipal government or its agent may store or mix such materials when incidental to the improvement of highways or streets. (Emphasis added.)
The phrase “for aggregate purposes” in the Zoning Ordinance means that the only “manufacturing and processing” or “extraction [or] quarrying” that may occur in Buffalo County is for “aggregate purposes,” that is, materials to be used in concrete, cement, asphalt, and black top.
The remaining language in Section 41 confirms that “aggregate purposes” must be given its ordinary and common sense meaning, as it addresses “the storage of cement, asphalt, or road oils,” “the mixing of concrete or black top or related materials,” and “the improvement of highways or streets.”
Because frac sand is not mined for “aggregate purposes,” as it is not sought for use in making construction materials such as cement, asphalt, concrete, or black top, the current Zoning Ordinance prohibits frac sand mining. The Moratorium specifically states that there is a need to “review and consider amending or adopting other police power or zoning ordinances so as to effectively regulate nonmetallic mining operations in the public interest.”
In order to allow time to properly research, draft, debate and enact changes to the Zoning Ordinance to permit sand mining in the Agricultural district, the Moratorium should be extended.
3. Current rules do not provide proper guidance to the Zoning office or the BOA as to what information should be required of sand mine applicants in order to reasonably make a defensible decision.
Section 211 of the Zoning ordinance says:
In order to secure evidence upon which to base its determination, the Board of Adjustment may require, in addition to the information required a Zoning Permit, the submission of plans of buildings, arrangement of operations, plat of grounds showing location of buildings, stockpiles, equipment storage, fences or screens, specifications of operations, parking areas, traffic access, open spaces, landscaping and any other pertinent information that may be necessary to determine if the proposed use meets the requirement of the ordinance. (Emphasis added)
In order to be able to craft appropriate conditions, with a rational basis, for the type of large-scale mining operation sought by frac sand applicants, the Zoning office and BOA should amend their procedures to require not just the basic information needed for all zoning and conditional use applications, but significantly more detailed and technical information.
Before taking up applications, BOA should require, for example
- The submission of an Environmental Impact Statement,
- Technical evidence relating to, among other things, groundwater, storm water and water discharge,
- Water usage and impact on neighboring property owners,
- Air emissions and the impact on neighboring property owners,
- Noise levels,
- Impact on wetlands,
- Impact on endangered species,
- Site reclamation, and
- The financial wherewithal of promoters and applicants.
In order to allow time to properly research, draft, debate and enact changes to the Zoning office and BOA procedures with regard to permits for frac sand mining in the Agricultural district, the Moratorium should be extended.
4. The County has not yet addressed the public-health concerns or recommendations of the Buffalo County Health Department.
In late August, the Buffalo County Health Department issued its preliminary report in response to the Moratorium. Here are the overall summary and conclusions as stated in the report;
Overall Summary Statement
As part of the moratorium, public health was tasked with studying the potential health effects of silica “frac” sand mining, especially as it related to air and ground water quality. Studying health effects of an environmental substance is a long-term process. In the time allowed by the moratorium, the public health team searched for and read credible sources of information (articles, websites, etc.) and spoke with many experts. Below you will find our current recommendations, which are the result of the studies conducted thus far. this topic is very new and we expect that new research and data will be coming in the next months to years that will help us better understand the potential health effects, thereby allowing us to develop better ways to protect the health and safety of the public.
Recommendations
1. Incorporate into the Conditional Use Permit (CUP) a requirement for a site-specific ambient air quality monitoring plan similar to Scott county, MN (Exhibit II-b), or built off of Wisconsin Department of Natural Resources (WDNR) recommendations for air quality monitoring plus WDNR or National Institute for Occupational Safety and Health (NIOSH) fugitive dust control recommendation. This requirement should also include the following:
a. Monitoring for 1 month prior to onset of operation to obtain baseline data
b. Monitors that capture PM 2.5
2. Incorporate into the CUP a requirement for a “review committee” to periodically review the CUP, allowing for information gained through studies such as those to be conducted in Chippewa and/or LaCrosse County or the release of new standards such as those from the EPA to be considered for incorporation into the existing CUP for the purpose of adequately potecting health and safety (Exhibit II-a and II-c).
3. Maintain the requirement for baseline and continuous water monitoring on residence wells that currently exists as a condition in the CUP.
4. Extend moratorium as more time is needed to:
a. Incorporate new Environmental Protection Agency (EPA) National Ambient Air Quality Standards (NAAQS) into air quality monitoring plans (AQMP) (final rule Dec 2012)
b. Allow more time to collect baseline, pre-operational air quality monitoring data and set best practices and protocols for air quality monitoring.
c. Incorporate findings from or participate in other studies concerning health impacts of silica “frac” sand mining in Western Wisconsin (potentially Chippewa county and LaCrosse County) or measuring of PM4 (Chippewa County)
d. Coordinate getting community, industry, government and academia together.
The Public Health Department raises significant public health issues in their report, and has some very specific recommendations with regard to various types of monitoring and enforcement around air and water quality to address those concerns. Note that their Recommendation 4 is that the Moratorium should be extended.
5. The County has not yet addressed the issues identified in the UW Extension report “The Economics of Sand Mining in Buffalo County.”
In late August, the Buffalo County Extension Office issued its preliminary report in response to the Moratorium. Here are the recommendations stated in the report;
- Buffalo County needs to become active in economic development planning. Buffalo County does not have an organized response to economic growth and development activities. The County also has never put any significant resources behind economic development activities or planning. The significant conflict that has arisen from the proposed mining operations points to the need for the County to have in place a viable and active economic growth and development plan with adequate resources to move the County forward.
- Buffalo County government in cooperation with Town and city governments should look for ways to approve sand mining businesses while protecting the reasons that people live and work in the County. How can the County be strategic in promoting the potential economic benefits from mining while not displacing other important elements of the local economy and community? Some examples that came from the community meetings include, but are not limited to:(1) limit the number/size of mines operating at any given time;
(2) limit sand truck traffic to certain days of the week to minimize conflict with tourists;
(3) impose landscaping standards on mining operations to minimize visual disamenities (e.g., road setbacks, landscaping as a visual screen); and
(4) prohibit mines from operating in particularly high-amenity or environmentally sensitive areas.
- The County, in cooperation with other local governments within the County, must put in place proactive strategies to address short-term fluctuations in mining employment. The regional community must be prepared to address the difficulties caused by the flickering effect associated with mining operations.
- The County and local governments must insure that mining companies:(1) have sufficient bonding to ensure more than adequate reclamation of mined lands in the case of bankruptcy of the mining company;
(2) more than adequate reclamation plans that are site specific and approved by the County;
(3) more than adequate payments to a highway trust fund based on local road studies, to ensure adequate maintenance of the local road system ;
(4) more than adequate payments in an environmental trust fund to cover the costs of clean-up in the event of an environmental accident (e.g., sand spillage into a waterway, a road ditch, neighboring property, etc.).
- The controversy around sand mining in Buffalo County has created an opportunity for the County and communities that comprise the County, to put into place more proactive economic growth and development strategies. Many participants of the community meetings expressed concern over the reactive tendencies of local governments and the lack of proactive approaches.
The report raises a number of arguments that bear on the “sand equals jobs” refrain from the applicants and their promoters. Given the long list of unanswered questions that bear on the general welfare of the public contained in the report, it is hard to support the notion that the County has sufficiently addressed the issues that have been raised. Thus, the Moratorium should be extended.