Red Wing adopts mining resolution
September 24th, 2013
Surprise!!!
Last week, the City of Red Wing’s Advisory Planning Commission adopted a very narrow resolution to support Goodhue County’s silica sand zoning efforts. The APC meeting was last Tuesday evening… who knew!?!?! Not these residents of Red Wing! Not a word on the Save the Bluffs listserve…
So we went to the City Council meeting last night after checking the agenda.
The Red Wing city planner, Brian Peterson, did a good job making the proposed resolution relevant to Red Wing, using related Red Wing prior actions as the basis for the Resolution, changing the “one size doesn’t fit any” generic resolution to one that also acknowledges that the one mile setback from the river doesn’t even reach Highway 61, the Great River Road ostensibly at issue, in a number of places:
The Save the Bluffs organization recently made a request to the Red Wing City Council asking that the City adopt a resolution that supports the idea of Goodhue County establishing a one mile prohibition of silica sand mining operations from the high water mark of the Mississippi River. The City Council has asked the Advisory Planning Commission and the Sustainability Commission to meet to discuss the request and make a recommendation to the City Council. Attached is the draft resolution that was provided to the City by Save the Bluffs. It is a generic resolution drafted for municipalities and townships to weigh in their support for the idea of a setback.
Option # 1, is a revised resolution for your consideration. It acknowledges that the City of Red Wing has already taken action by amending its zoning regulations to include an overlay zone that prohibits mining operations in the bluff overlay zones. It also refers to one of the recommendation from the Silica Sand Mining report that the council adopted in 2012 that recommended the city to collaborate with Goodhue County and surrounding townships to establish regulations regarding these operations. Option #1 would simply
support the Save the Bluffs initiative.Option #2, further revises the resolution by adding onto option #1 and supporting a larger prohibition area because bluffs within the view shed of Highway 61 would not be protected in areas located in Welch Township and Florence Township by a 1 mile setback from the Mississippi River. This resolution suggests that the prohibition area should be everything between I mile west of Highway 61 and the Mississippi River.
Option 2, in the packet above, was adopted last Tuesday, and last night, it was before the Red Wing City Council:
09C – Resolution 6601 Supporting Setbacks RE Mining Activities – CC 09-23-2013-1
What struck me when I finally did get a chance to review it was that the Resolution proffered, and in the part adopted by the APC, referenced Minnesota Statute 6125.8100. Oh, right… Seems to me the first thing anyone should do is check the references, but nooooooo, so I asked that the Resolution be corrected to reflect that 6125.8100 is a RULE! And Peterson did make that correction. GOOD!
Now, let’s get the City of Red Wing address the other model Standards and Criteria the EQB is developing, and the four rulemaking proceedings! Make it so!
EQB meeting on frac sand mining
September 21st, 2013
Wednesday was the EQB’s monthly meeting, and this one was all about frac sand mining. There are TWO things going on here. The EQB Standards and Criteria, which is not a rulemaking, and then four mandatory rulemaking tasks, two at EQB, and one each at DNR and MPCA. The EQB was supposed to deal with, at some level, both of these assignments.
One is the model Standards and Criteria, “serving suggestions” to be adopted by local government, and the other is four rulemaking tasks at three agencies:
Sec. 105. RULES; SILICA SAND.
(a) The commissioner of the Pollution Control Agency shall adopt rules pertaining to the control of particulate emissions from silica sand projects. The rulemaking is exempt from Minnesota Statutes, section 14.125.
(b) The commissioner of natural resources shall adopt rules pertaining to the reclamation of silica sand mines. The rulemaking is exempt from Minnesota Statutes, section 14.125.
(c) By January 1, 2014, the Department of Health shall adopt an air quality health-based value for silica sand.
(d) The Environmental Quality Board shall amend its rules for environmental review, adopted under Minnesota Statutes, chapter 116D, for silica sand mining and processing to take into account the increased activity in the state and concerns over the size of specific operations. The Environmental Quality Board shall consider whether
the requirements of Minnesota Statutes, section 116C.991, should remain part of the environmental review requirements for silica sand and whether the requirements should be different for different geographic areas of the state. The rulemaking is exempt from Minnesota Statutes, section 14.125.
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Minnesota Department of Natural Resources_Notice of Rulemaking
Both require public input, both have not had enough! It’s our job to make that happen, to get local governments, grassroots groups, and members of the public hollering, kicking and screaming with specific suggestions for developing the protections for us, our communities and natural resources of the areas affected by frac sand mining.
The EQB staff proposed 500 foot setbacks from homes – here’s what that would look like at the capitol (given to me by Donna Buckbee, made by Kelly Stanage!) with the setbacks proposed:
Here’s the EQB packet:
As you can see from my Sept 7 comments above, I was not at all happy with staff Jeff Smyser’s comments about an Advisory Committee, from what he said, he was either clueless, misdirecting/misinforming the EQB, or both.
From the packet, p. 6 of 34:
i. Staff requests Board direction on a question that arose at the August 2nd public meetings.
Members of the public expressed interest in a citizen committee to participate in the rulemaking. It is not clear how a citizen committee would affect the rulemaking process laid out in Minn. Statutes Ch. 14. A multi-step public review and comment process is already required in that statute and we just completed the preliminary step. Rulemaking is essentially creating law: Minnesota Rules have the force and effect of law. Rulemaking is a lengthy process, averaging about two years.
“It is not clear…” NO NO NO! For someone in Smyser’s position, there’s no excuse for statements like this. The statute is very clear about the agencies’ authority to appoint an Advisory Committees and how an advisory committee it would affect rulemaking – it improves the output by providing input before the draft rule is issued:
Not good… and WORSE when Smyser repeated that line at the meeting, I almost got up and hollered, but I got a chance to make a comment during the meeting, so I waited until then. Earth to EQB, Advisory Committees are common, the norm, in rulemaking proceedings, so get with it!! You’ve got a rulemaking mandate and you need to get moving on it.
The staff had asked for “direction” on a rulemaking committee in their comments in the packet, and the Board never did say anything about it, no discussion and no recommendation.
The meeting got off to a hilarious start, for me anyway! I’d found a table in the back, a good observation location, and plopped my stuff down and wandered around a bit, signing up to speak, and a bit of meet & greet. When I went back, who do you think had taken up the other three spots at my table? Yes, the flacks from the Industrial Sand Council (who as lobbyists are listed under Aggregate Ready Mix Ass.) Peder Larson, _______, and…. (drum roll here!) Dennis Egan right next to me!
Sally Jo Sorensen thinks he was doing a grumpy cat at the meeting
Grumpy? NO ONE was happy with the outcome of that meeting. And that’s not only how it was from our table at the back of the room! Egan is just doing what lobbyists, and really all of us in the room, were doing — advocating for our interests. The good news is that now it’s clear where Egan’s interests are. Disclosure is everything, and failure to disclose was his problem.
The first Industrial Sand speaker was dreadful, going on and on, naming all the folks on EQB that they’d met with, lording it over about their special access to these officials — time to exercise some scripting because this guy clearly does NOT understand the impact of his statements alluding to exertions of their influence (ex parte? Unfortunately I can’t find rules about that for EQB), and they’re really pissing off folks in the audience, and probably making their EQB targets uncomfortable too. If he worked for me, I’d put him on the sidelines.
After some ice breaking with Egan (I suggested that in a photo op we could strangle each other!), we did find some common ground, such as incredulous snorts over Chair Fredrickson’s asking what the deadline would be for the “second draft” of Standards and Criteria. Second draft?? Chair, the statutory deadline for finished product is October 1st. Oh well, now they’re talking about February. Bizarre, guess the statute doesn’t mean anything. Guess that also means we’re not getting to public review and comment any time soon… which means WE’D BETTER COMMENT NOW! Before they issue anything for public comment.
Egan was not testifying Wednesday, and he talked publicly only via Stephanie Hemphill, MPR:
About the EQB’s failure to meet the October 1 deadline, that was pretty much the opinion of all of us in the audience, Sen. Matt Schmit too!
Obviously more time is needed to do a good job, and the EQB’s out-of-the-gate performance left a LOT to be desired. But about that deadline, see Minnesota Session Laws, Ch. 114:
(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.
So let’s get some meetings scheduled around the state, the areas of the state affected by silica sand mining, present or proposed.
And once more with feeling, there are TWO things going on here. One, the EQB Standards and Criteria, which is not a rulemaking, and then secondly, four mandatory rulemaking tasks, two at EQB, and one each at DNR and MPCA.
EQB releases Draft Silica Mining Standards & Criteria
September 6th, 2013
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Those folks have been working overtime…
EQB Meeting September 19, 2013 1:00 p.m. MPCA Building, Basement Lafayette & University St. Paul, MN
Below is the EQB packet for the September 18, 2013 meeting. There’s a Silica Sand Update, and their view of “Standards and Criteria” begins on p. 13, there are 19 pages.
The good news is there’s some good stuff there. Of course I like that they’re using my format. It not all bad, for instance, that they’re clear that the standards and criteria apply statewide, because, DOH! It’s criteria based, and the applications, and the issues they’re regulating, occur in only specific places. SE Minnesota isn’t special, it’s just a place where protections of our natural resources are needed, and of course, natural resources including ones of the homo sapien variety!
Here is the EQB packet for the September 18, 2013 meeting — it starts at 1 p.m., down in the basement of the MPCA building:
So the first thing anyone with any interest in this should do is to QUICK fire off a missive requesting a Rulemaking (DNR, MPCA, EQB) Advisory Committee, indicating whether or not they’d like to serve on it.
Here’s what I send them:
How can you weigh in? Just send a simple email to: jeff.smyser@state.mn.us, bob.patton@state.mn.us, kate.frantz@state.mn.us
Subject: Silica Sand Rulemaking – EQB, MPCA and DNR
Please establish an Advisory Committee for the EQB, MPCA and DNR Rulemakings.
I am willing to serve on the Advisory and would like to be considered as a member (if you would like to go to meetings and work on this).
Thanks,
Your name here
Your address, phone and email here
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Here’s what EQB staff put in its packet to the Board — WOW. I hope they know more about rulemaking process than they’re letting on here!
Also note they claim they only received 23 comments in response to their Request for Rulemaking. That’s a pathetic response! I’ll fire off a FOIA request to get the Comments.
Yesterday – Mississippi River Parkway Commission
August 23rd, 2013
Yesterday was the quarterly meeting of Minnesota’s Mississippi River Parkway Commission. Attorney Bill Mavity, accompanied by several others from Wisconsin, presented on frac sand mining and impacts on the Great River Road. He authored and promoted the Pepin County ordinance:
He brought up the economic report that they’d completed in association with the Ordinance:
He noted that the Ordinance is economic regulation, and if challenged, this report essential because it provides the rational basis necessary to support the Ordinance. This points to the necessity of having an economic analysis for this type of ordinance, without it, or some other substantive support, it is much weaker and susceptible to challenge.
The Minnesota MRPC is sensitive to the impacts of frac sand mining on the Great River Road and the Mississippi, and has agreed to pull together a Resolution similar to that of the Wisconsin MRCP, which they’ll discuss at their November meeting. They also will be considering a silica sand presentation at the annual convention.
I gave a short update on the completion of permitting for CapX 2020 transmission, what with this week’s Supreme Court denial of Oronoco Township’s Petition for Review. MRPC submitted comments for a number of the CapX 2020 dockets — CapX 2020 transmission will have a significant impact on the Great River Road. Any day now they’ll start the 345kV part of the Hampton-La Crosse route which crosses the Mississippi River at Alma. Staff also got the scoop from me about agencies’ silica sand mining agenda including Standards and Criteria (which includes bluff and road impacts).
This was a very effective presentation by Mavity. It’s unfortunate that no one else from frac sand mining land showed up!
Most interesting Goodhue PAC meeting
August 20th, 2013
Very interesting meeting last night, a meeting of the Planning Advisory Committee of Goodhue County. It’s unfortunate there weren’t more people there. I wasn’t going to go, but I went to support Marie McNamara’s request to the PAC to send a letter to the Environmental Quality Board, Pollution Control Agency, and Dept. of Natural Resources to appoint a Rulemaking Advisory Committee. Getting the local governments and public involved in the state process is something I’ve been on for a long time, and it needs to have a better result than the composition of the PUC’s Certificate of Need and Siting/Routing rulemaking committee which has only one member of the public, one attorney who represented a township in a transmission proceeding, two attorneys (including moi) who represent citizens groups, and 18-20 representatives of utilities.
It was a quick request:
Requests for an Advisory Committee must be made because the MPCA and DNR stated in their Notice that they didn’t anticipate having an Advisory Committee:
Minnesota Department of Natural Resources_Notice of Rulemaking
So now the next step at the County is to get Board approval and get a request out in time for the EQB’s September 18 meeting, which should not be a problem.
You can send a request too! Send a short email, with Subject line “EQB, MPCA and DNR Silica Sand Rulemaking” to:
heather.arends@state.mn.us; tom.landwehr@state.mn.us; nathan.cooley@state.mn.us; John.Stine@state.mn.us; Jeff.Smyser@state.mn.us; bob.patton@state.mn.us; kate.frantz@state.mn.us; dave.frederickson@state.mn.us
Marie McNamara has done a superb job over the five years she’s been working on wind issues. We’ve been working together for a long time now, and she’s always keeping the big picture in mind. She’s worked hard to educate regulatory bodies, from Goodhue County to the PUC, DNR, USFWS, FAA, and has done so with the utmost integrity. One of her mantra’s is “how will this affect my neighbors,” and she’s felt an obligation to keep in this fight, deal with the big policy issues and assist others in similar situations in Minnesota and across the country to participate in the process. Watching her address the PAC Committee, explaining her work on the PUC’s Rulemaking Advisory Committee, how it is the place for people to have their ideas heard, relating it to their work on the County wind ordinance, I was so gratified to see her increasing ability to independently navigate the system and encourage others to step up. She’s open and transparent in her approach and has a broad range of knowledge of process and specifics. She’s been before the PAC and County Board so many times, and has worked hard to inform the record and done a good job of it. She’s been there, done that, and is just the one to ask them to support an Advisory Committee for silica sand rulemaking.
Dan Rechtzigel and Bernie Overby were agin’ it, and Bernie was convinced that people who participate do so from one point of view, and his concern was it is only opposition to projects point of view at the table, HELLO — reality is that it’s severely weighted in favor of industry. He should go to a rulemaking committee and check it out.
I appreciated Joan Volz’ explanation that rulemaking input has to happen soon, because once it’s released, it’s pretty tough to change. In my experience, and actually, as established in the rulemaking process, the public comment period after the release of the draft is not an opportunity to do much other than generate some dead trees or use some electrons and brain cells, and that the draft is pretty much set in stone because they cannot approve a rule that is “significantly” different from the draft. That’s how it is.
Bottom line: The PAC asked staff to check it out and report to the Board, which meets the first week of September, ample time to get a request to the EQB prior to their meeting on September 18, 2013 — motion passed unanimously. I’m confident they’ll get it done.
As for the Save the Bluff’s Application, they had an “alternative approach” on the agenda based on a letter dated August 12 regarding a past meeting between the Applicants and two commissioners (click for larger version):
It’s good that there was a discussion in public about this “alternative approach” as it was a result of private negotiations between Keith Fossen and Jody McIlrath, and Dan Rechtzigel and Jim Bryant, alluded to on p. 11 of the packet in the letter above. Dan went too far, who at one point discussing these negotiations said, “on behalf of the Board…” He’s the swing vote in this situation, but he can’t speak for the board, particularly on an Application where’s there’s action pending. He should know that. The good news is that at the very beginning, Lisa Hanni provided an opening where Save the Bluffs could avoid withdrawing the original Application. They said they did not want to withdraw the application, but to focus on the 4 items, see if that can resolve the issues.
Dan Rechtzigel said that the Applicants reached out to him to talk about whether there was any possible resolution and that they came up with four areas they could talk about and come to agreement, with the acceptable items of agreement being:
This is where Dan said (rough quote), “these four areas are where we could find some common ground, on behalf of the Board…” and that these points are not intended to be final wording. In discussion of the cost-benefit analysis, Dan said, “I’m not hearing an urgent request for that.”
At one point, Bernie Overby said, “I think discussions were very productive.” Was he part of this?
There were a few comments from the public, first from a contingent from Belvidere who were very upset about not getting notice that the public hearing was cancelled. Also, after they spoke, Planning Advisory Commission Brandon Schrader, who had recused himself, tried to speak, and I had to shout out an objection, because someone who recuses himself can’t be participating, not just in the decision, but also in the discussion. That’s pretty basic procedure, but Rich Bauer, the current chair, didn’t stop him at the last PAC meeting I went to and didn’t here. No choice but to do it, and thankfully Marie knows him and had a chat about that which I hope he heard, I think he really didn’t know that wasn’t permissible. Bernie Overby didn’t understand either and started on a “free speech” rant. He needs some procedural instruction.
Belle Creek’s Township Supervisor Tom Gale was there too, and he said he didn’t receive notice and wasn’t too pleased. Bernie Overby made a remark about people showing up for the first time, and apparently he didn’t know Belle Creek township is interested, is interested in water protections, and has had a representative, usually Tom, at most of the sand related county meetings. He had a copy of the packet and wanted to know more about the “alternate approach” and what it does for Goodhue County. Belle Creek was one of the townships asked to develop a supportive resolution, as Belle Creek had requested of others during their struggle about the AWA Goodhue/New Era wind project. Belle Creek township is a farming township and they are very concerned about water, the surface water and the aquifer, and assuring safe and sufficient water for the farms in the township. Belle Creek Watershed District is one of the few, three, I think, formal Watershed Districts in the state. The Watershed District is a formal local unit of government, and should be included in the “consultation” by the state about silica sand mining Standards and Criteria, but that’s another topic… Belle Creek Township would likely be very supportive of regulations that protect the water supply.
Alan Muller brought up the point that #1 of the four points is a one mile setback from R-1 Suburban Residential, and asked what percentage of R-1 Suburban Residential land was in Goodhue County, what percentage of residents/landowners. Get out your magnifying glass and look for the tan R-1 Suburban Residential areas (click for larger map):
Ultimately, Bernie Overby made the motion to table the Save the Bluff’s request, to send it to the Mining Study Committee, to add the four items to the agenda, and the Applicants were to be directed to work with the Committee. It was passed unanimously.
There will be two public hearings on both the original Application and the 4 additional points, first before the Planning Advisory Committee and then before the County Board. These public hearings will be noticed, hopefully better than this meeting and the cancellation of the public hearing!
By the way, Bernie Overby, what’s Ryan hauling in that stainless trailer behind the shiny lime green truck with “Overby Trucking” on the door?