MEMO
To: Buffalo County Board of Adjustment
From: Mike O’Connor
Re: Testimony OPPOSING the “Seven Sands” Mine Application
Date: 16-September, 2012
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I would like to offer testimony in opposition to the proposed “Seven Sands” industrial frac sand mine. Here are the reasons why I am opposed.
1. Highway Safety
The proposed haul route for this mine runs south on Wisconsin Highway 88 from County Road E to Wisconsin Highway 35. In recent public presentations the Wisconsin Department of Transportation has described Highway 88 as having “Geometry” problems when it comes to truck traffic of the nature and volume proposed by the “Seven Sands” consortium. The light blue line describing highways 88 and 121 on the following DOT slide is labeled “Probable STH Impacts – Geometry” in the key, which is consistent with the numerous “lane sweep” issues identified in their safety study work.
Additionally, the Wisconsin DOT concluded in its Traffic Safety Impact Assessment (published on July 24, 2012) that “additional sand mine trucks anticipated with current potential development will have a noticeable impact on the safety and operations” of Highway 88.
On 22-May 2012 an accident occurred on Highway 88 that highlights the reason for the concern about dramatically increasing the truck traffic on that road.
Photo credits – Gary LeMasters – Yaeger Valley Road
Observations:
• The accident happened on a clear day, in good weather conditions. What happens on one of our famous winter days? Or during an ice storm?
• It happened in the middle of the day, so deer are far less likely to have been a factor in this accident. What happens when heavy trucks are using the road in early morning and evening twilight as is proposed in the application?
• It appears that there were no other vehicles involved in this accident. What happens when the frequency of trucks rises – and thus the odds that another truck or car is in the wrong place at the wrong time? Or a school bus?
• This accident happened on the “good” part of Highway 88 and it is my understanding that the driver was only shaken up. That might not have been the case if this accident further south on 88. In that case the truck could have fallen down a 20-foot embankment and the driver might not have been so fortunate.
• Note the condition of the road in these pictures. This is typical along the whole route and is the reason why Clark Dietz Engineers stated concerns about rapid deterioration of the road in an April 18, 2012 traffic study. To quote from their report “the roadway is in poor structural condition and appears to require frequent repairs due to several modes of failure under present day loading conditions. Accordingly, the rate of roadway deterioration and failure will increase as the intensity and frequency of the loading increases due to truck traffic.”
The Board of Adjustments tabled the motion to approve the “Seven Sands” application and requested that the applicant develop a traffic safety study of the County roads specified in the haul route. Irrespective of the results of those studies, the haul route includes portions of Highway 88 that have “Geometry issues” and “structural issues” according to reports from two different experts and thus the application should be denied.
2. Granting this application is inconsistent with the County’s Moratorium on frac sand mines
The Buffalo County Zoning Ordinance lists various factors that the BOA must consider 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, Buffalo County has completed several preliminary studies about the possible impacts of frac sand mining and most of the studies recommend 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.
The “Seven Sands” application presents no evidence that the health and safety concerns identified in the Moratorium had been sufficiently studied and addressed and thus the BOA doesn’t have sufficient information to make credible findings relevant to the significant public health and safety concerns and open questions identified in the Moratorium.
For example, on what basis is the BOA going to be able to make a finding describing the current use of the adjacent lands or a finding about the compatibility of a large-scale industrial frac sand mine with those uses?
In addition, on what basis the BOA going to be able to make findings addressing factor #7 (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?
Because the law of Buffalo County, as stated in the Moratorium and thereby adopted into its Zoning Ordinance, expressly provides that the County 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, the application should be denied.
3. This application proposes a use that is inconsistent with the Buffalo County 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 the property that is the subject of the “Seven Sands” application 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 application should be denied.
4. The “Seven Sands” application does not contain sufficient information for the BOA to reasonably make a 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 the “Seven Sands” applicants, the BOA should require not just the basic information needed for all zoning and conditional use applications, but significantly more detailed and technical information.
Before taking up this application, BOA should have required, 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 Glacier Sands (the promoter of the project) and the “Seven Sands” applicants.
Because this information is not included in the “Seven Sands” application, there is no basis for you to make reasonable findings and the application should be denied.
5. The Application does not address 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. Since the “Seven Sands” application does not address these public health issues or the proposed recommendations, the application should be denied.
6. The “Seven Sands’ application does not address 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 BOA has sufficient or credible information upon which to base reasonable findings. Thus, the application should be denied.