Mike’s Testimony OPPOSING Klevgard Application for CUP Modification


Date:    May 4, 2014

To:    Buffalo County Board of Adjustments

From:    Mikey O’Connor ([email protected])

Re:    Testimony OPPOSING Klevgard Application for CUP Modification


Please deny this application for the following reasons:

  • Allowing such a wide variety of haul routes makes it impossible to assess the impact of this mine on public health, safety and welfare.
  • Expanding the length of the permit from its original 5 years to 20 years is unnecessary.  Nothing prevents Klevgard from completing his plan under a regime of 5-year renewals.
  • Expanding the length of the permit from its original 5 years to 20 years is irresponsible.  Buffalo County needs periodic reviews to protect public health and safety and ensure that this marginal operator complies with his CUP.
  • The application materials have substantial irregularities that should have been addressed before they were even brought to the BOA for consideration.

Impact on public heath, safety and welfare

The applicant is requesting two additional options for hauling.  Approving this application will mean that Buffalo County residents along all three haul routes will spend the next 20 years in a state of uncertainty as to whether 125 loads of frac sand will be rolling by their homes and businesses, with the attendant impact on business operations and property value, on any given day.

This extreme diversity of routes makes it impossible for Buffalo County to assess the public heath and safety impact of the mine, since at any given moment the trucks might be going in any one of three completely different directions.

One of the duties of Buffalo County is to assess the cumulative impact of mine operations on the county.  This too will be impossible, again because of the uncertainty of the impact from Mr. Klevgard’s proposed hauling operation on the region.

Expanding the length of the permit is unwise and unwarranted

Klevgard appears to be a marginal operator that needs a fair amount of supervision, given that he just barely got the Reclamation Plan approved in time to meet the 2-year start-up window in his CUP.

Klevgard is out of compliance with the paved tracking pad and tire-cleaning conditions of his CUP if he has shipped any product.  Condition #2 of his CUP states that the tracking pad must be paved at a minimum of 200’ from Highway 88.  That condition goes on to state that the paving must be complete prior to any product leaving the site.   Here is a picture of the Klevgard operation taken today (May 4, 2014).

Mr. Klevgard has also been cited for shipping product without a permit at various times in the past.

All of this, taken together, indicates that Mr. Klevgard is an operator who needs a fair amount of adult supervision.  Extending the length of time between reviews of his operation from 5 years to 20 is unwise.

This extension is also unwarranted.  The application for modification states “there’s no feasible way to extract the minerals in 3 years, and execute the reclamation plan that has been approved without being in total disregard to the landowner and the surrounding communities.”

  • Nowhere does it say that all the minerals have to be extracted in five years.  If Mr. Klevgard needs more time to complete his excavation, he can file for another permit and, if all is going according to plan, it seems likely that it would be approved.
  • Every time Mr. Klevgard has appeared before the BOA his whole pitch has been his innovative small-acreage approach to mining and that the reclamation will be happening in tandem with excavation.  Thus, reclamation on the land that has been mined should be complete shortly after excavation is finished.  That was the whole point of the presentation that was made to the Board of Adjustments mere months ago.  Suddenly this is no longer feasible?  What has changed?
  • What is the basis the language “total disregard to the landowner”?  Klevgard is the landowner.  This language implies that somebody else is writing it.  But no other name appears on the application?  What are the issues that are being disregarded?  This language raises more questions than provide answers.

This request is an unwarranted attempt to make life easier for Klevgard (and unnamed others) at the expense of the rest of the citizens of Buffalo County and the region.

Irregularities in the application and the notice of the hearing

  • Mr. Bublitz of the Zoning office provided me with a signature page dated April 29th, a letter of justification dated April 30th, and a letter from the Gilmanton Town Chairman dated April 28th.  The Notice of Public Hearing was published April 24 and May 1, but the hearing is being held May 6th.
    • The public (and the BOA) has had less than a week to review material documents prior to the hearing.
    • The Public Hearing is less than a week later than the second publication date of the notice.
  • It is not clear whether the letter from the town of Gilmanton is the result of a properly-noticed town meeting or just a personal letter from the town Chairman, Mr. Meier.
  • Opinions may differ as to whether Condition #34 (the removal of the knoll on the Lisowski property) has actually been met.  Mr. Meier attests that “the site clearance on Loesel Road has been performed “to the Town of Gilmanton’s recommendations.”

    I inspected that knoll on May 4th and found minimal evidence that the knoll has been removed.  Since Klevgard has included the letter in his application (and thus made it part of the record for you to consider in your deliberations), I hope the BOA will visit that knoll as part of the site visit and form your own view as to whether that condition has been met.

  • The application form states that Mr. Klevgard is the owner.  The application form does not refer to Aaron Keopple or Advanced Sand and Proppants.  However, the letter of justification indicates that ASP owns the mineral rights to the sand that will be mined, and will be “assisting” Mr. Klevgard.

    Since the operational expertise (drilling, blasting, quarry operation, etc.) and mineral rights reside with Mr. Keopple and ASP, aren’t they really the operator of the mine?  Shouldn’t they be listed on the application form, and be held accountable for the success or failure of this mine, along with Mr. Klevgard?

Approving an application with all these irregularities establishes a terrible precedent for other mine operators to follow.  It sends a signal that applications can be out of compliance with public notice requirements, and downright misleading, without risking any adverse consequences.

Approving an application that introduces this much uncertainty over haul routes does an enormous disservice to property and business owners of Buffalo County and the region that surrounds it.  Not to mention the inability to assess the health and safety impacts of a constantly changing haul route through one of Buffalo County’s largest towns.

Approving an application that extends the time between opportunities for reviews and course corrections from 5 years to 20 is inconsistent with previous depictions of this mine as an innovative “small footprint” operation.  It’s also a terrible idea given the track record of this applicant.

Please deny this application.

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