MN Environmental Quality Board “Tools to Assist Local Governments in Planning and Regulating Silica Sand Projects”

INTRODUCTION

In May 2013 the Minnesota Legislature adopted Laws 2013, chapter 114, commonly referred to as HF 976, now codified in Minnesota Statutes chapter 116C. Minnesota Statute 116C.99, sub division 2 requires the Environmental Quality Board (EQB) to develop model standards and criteria that may be used by local units of government (LGUs) in developing local ordinances regarding the mining, processing, and transporting of silica sand. This Tools to Assist Local Governments document fulfills this legislative requirement.

Authority to plan for and regulate land use activities rests primarily with local government. The EQB supports good local planning that articulates the future vision of a community. This should be supported with the adoption of sound local ordinances as the means to implement the planning. This document provides information that may be useful for LGUs when discussing issues related to silica sand.

The EQB strongly encourages each individual local unit of government to seek the advice of legal counsel in connection with the use of this document and its contents. The recommendations, standards, criteria, and considerations included in this document are not substitutes for local government planning and the contents of this document are not a substitute for legal advice.

The document is organized by topic. Each topic section or subsection discusses potential impacts from silica sand activities. Considerations for addressing potential impacts are discussed and then suggestions are provided on how to address the impacts.

This document is essentially a box of tools available for consideration by local governments. In some situations, there are several tools that may be chosen or used in conjunction with other tools to address a particular concern. The toolbox also includes instructions on how to use the tools themselves. As with any box of tools, the user should decide what is to be built before selecting a tool.

Two regions of the state were the focus of the statute: the Minnesota River Valley and southeastern Minnesota. These two regions are the areas most likely to experience the greatest effects of silica sand operations because they are where most of the sand exists. However, the toolbox can be applied to other areas of the state, where an LGU could compare its own circumstances to the geology, hydrology, and other characteristics discussed in this document.

This document is the work of staff from the Minnesota Department of Natural Resources, Minnesota Pollution Control Agency, Minnesota Department of Transportation, Minnesota Department of Health, Minnesota Department of Agriculture, and the EQB itself.

Local units of governments are not required to adopt any elements of this document and Minn. Stat. 116C.99 does not authorize the EQB or any other state agency to impose or enforce anything on local governments. The EQB and its member agencies are not enforcing or attempting to enforce the suggestions in this document as if they are duly adopted state rules.

It also is important to note that this document does not represent legal advice or legal opinions. The EQB assumes and recommends that an LGU will obtain appropriate legal advice before making any decisions to adopt or amend its official controls.

For reference, Minn. Stat. 116C.99 is included below in its entirety.

116C.99 SILICA SAND MINING MODEL STANDARDS AND CRITERIA.

Subdivision 1. Definitions. The definitions in this subdivision apply to sections 116C.99
to 116C.992.
(a) “Local unit of government” means a county, statutory or home rule charter city, or town.
(b) “Mining” means excavating silica sand by any process, including digging, excavating,
drilling, blasting, tunneling, dredging, stripping, or by shaft.
(c) “Processing” means washing, cleaning, screening, crushing, filtering, sorting, processing,
stockpiling, and storing silica sand, either at the mining site or at any other site.
(d) “Silica sand” means well-rounded, sand-sized grains of quartz (silicon dioxide), with very little impurities in terms of other minerals. Specifically, the silica sand for the purposes of
this section is commercially valuable for use in the hydraulic fracturing of shale to obtain oil and natural gas. Silica sand does not include common rock, stone, aggregate, gravel, sand with a low quartz level, or silica compounds recovered as a by-product of metallic mining.
(e) “Silica sand project” means the excavation and mining and processing of silica sand; the washing, cleaning, screening, crushing, filtering, drying, sorting, stockpiling, and storing of silica sand, either at the mining site or at any other site; the hauling and transporting of silica sand; or a facility for transporting silica sand to destinations by rail, barge, truck, or other means of transportation.
(f) “Temporary storage” means the storage of stock piles of silica sand that have been transported and await further transport.
(g) “Transporting” means hauling and transporting silica sand, by any carrier:
(1) from the mining site to a processing or transfer site; or
(2) from a processing or storage site to a rail, barge, or transfer site for transporting to
destinations.

Subd. 2. Standards and criteria. (a) By October 1, 2013, the Environmental Quality
Board, in consultation with local units of government, shall develop model standards and criteria for mining, processing, and transporting silica sand. These standards and criteria may be used by local units of government in developing local ordinances. The standards and criteria shall be different for different geographic areas of the state. The unique karst conditions and landforms of southeastern Minnesota shall be considered unique when compared with the flat scoured river terraces and uniform hydrology of the Minnesota Valley. The standards and criteria developed shall reflect those differences in varying regions of the state. The standards and criteria must include:
(1) recommendations for setbacks or buffers for mining operation and processing, including:
(i) any residence or residential zoning district boundary
(ii) any property line or right-of-way line of any existing or proposed street or highway (iii) ordinary high water levels of public waters
(iv) bluffs
(v) designated trout streams, Class 2A water as designated in the rules of the Pollution
Control Agency, or any perennially flowing tributary of a designated trout stream
or Class 2A water
(vi) calcareous fens
(vii) wellhead protection areas as defined in section 103I.005
(viii)critical natural habitat acquired by the commissioner of natural resources under
section 84.944
(ix) a natural resource easement paid wholly or in part by public funds
(2) standards for hours of operation
(3) groundwater and surface water quality and quantity monitoring and mitigation plan
requirements, including:
(i) applicable groundwater and surface water appropriation permit requirements
(ii) well sealing requirements
(iii) annual submission of monitoring well data
(iv) storm water runoff rate limits not to exceed two-, ten-, and 100-year storm events
(4) air monitoring and data submission requirements
(5) dust control requirements
(6) noise testing and mitigation plan requirements
(7) blast monitoring plan requirements
(8) lighting requirements
(9) inspection requirements
(10) containmentrequirementsforsilicasandintemporarystoragetoprotectairandwater
quality
(11) containment requirements for chemicals used in processing
(12) financialassurancerequirements
(13) road and bridge impacts and requirements
(14) reclamation plan requirements as required under the rules adopted by the
commissioner of natural resources

Subd. 3. Silica sand technical assistance team. By October 1, 2013, the Environmental
Quality Board shall assemble a silica sand technical assistance team to provide local units of government, at their request, with assistance with ordinance development, zoning, environmental review and permitting, monitoring, or other issues arising from silica sand mining and processing operations. The technical assistance team may be chosen from representatives of the following entities: the Department of Natural Resources, the Pollution Control Agency, the Board of Water and Soil Resources, the Department of Health, the Department of Transportation, the University of Minnesota, the Minnesota State Colleges and Universities, and federal agencies. A majority of the members must be from a state agency and all members must have expertise in one or more of the following areas: silica sand mining, hydrology, air quality, water quality, land use, or other areas related to silica sand mining.

Subd. 4. Consideration of technical assistance team recommendations. (a)When the technical assistance team, at the request of the local unit of government, assembles findings or makes a recommendation related to a proposed silica sand project for the protection of human health and the environment, a local government unit must consider the findings or recommendations of the technical assistance team in its approval or denial of a silica sand project. If the local government unit does not agree with the technical assistance team’s findings and recommendations, the detailed reasons for the disagreement must be part of the local government unit’s record of decision.
(b) Silica sand project proposers must cooperate in providing local government unit staff, and members of the technical assistance team with information regarding the project.
(c) When a local unit of government requests assistance from the silica sand technical assistance team for environmental review or permitting of a silica sand project the local unit of government may assess the project proposer for reasonable costs of the assistance and use the funds received to reimburse the entity providing that assistance.

EFFECTIVE DATE. This section is effective the day following final enactment.