Legalectric

There’s been some chatter lately about the financial future of Red Wing if and when the Prairie Island Nuclear Generating Plant closes.

FYI, for those thinking about this, do check out the plan to convert to natural gas, this was in NSP’s 2002 IRP, just going into the 2003 session and that Prairie Island bill.

Prairie Island Conversion Appendix B 2002 Resource Plan

There’s also a MISO transmission study:

Prairie Island Replacement Study SS01_Report

There are plans…  This is not a binary all or nothing situation!

UPDATE: ORDINANCE #115 TAKEN OFF DECEMBER 11 COUNCIL MEETING. WON’T BE HEARD UNTIL AFTER JANUARY COUNCIL ANNUAL WORKSHOP… if ever…

At Monday’s City Council meeting, a strange item, 9b, was on the agenda:

09B – Int Ord 115 – Enforcement of Rules of Order for Govt Meetings – CC 11

Here is the link to the video, two options:

CLICK HERE and scroll down to 9b and click for video

MP4 Video

How did this get on the agenda?  It didn’t go through committee…

Look at this discussion of the matter in minutes from previous meeting, September 25, 2017:

First, “City Attorney Amy Mace referenced a recent Minnesota Supreme Court decision that struck down part of the disorderly conduct statute.”  That would be the Hensel decision:

Hensel-OPA150005-091317

So let’s look at this order of events.  The City’s Rules of Order address disruption of a city meeting, long standing rules.  The Hensel decision comes down September 13, 2017.  The meeting minutes above are September 25, 2017.

Listen to that part of the 9/25 meeting HERE – MP4 (begins at ~ 58:56, goes to ~1:03.00).  Note the City Attorney’s focus on “anger” — behavior that would cause anger, and statements that the public/private aspect of the statute was problematic. That was not part of the rational that Minn. Stat. 609.72, Subd. 2 that was deemed unconstitutional:

(2) disturbs an assembly or meeting, not unlawful in its character; or

Again, the decision:

Hensel-OPA150005-091317

So between the time the Hensel decision is published and the Council meeting of the 25th, 13 days, the Red Wing Chief of Police goes to the Goodhue County Attorney about it, and that “[t]he County Attorney feels that, as long as these rules are in place, there would be a basis for someone to be removed from a council meeting if they do not stop their disruptive behavior when given an order by the Council President to do so.”  That means that someone discussed this with the City Attorney prior to the 9/25 meeting.  This discussion is begun by “Council President Kim Biese, who asked whether additional discussion is needed with regard to managing a disturbance during a public meeting. So there was some discussion between some parties prior to the meeting.   The City Attorney goes on to say, “the City Attorney’s Office is considering whether language should be added to the City Code to make this type of behavior a misdemeanor offense.”  On whose authority, initiative, direction is this “considering” occurring?   Biese knew of this, City Attorney knew of this, and Chief Pohlman went to the County Attorney about it before the ink was dry on the Hensel decision — and he was told, “no problem.” So why is this happening and on whose direction?   “Discussion” and “consideration” is ongoing despite advice that there is no problem, the City’s rules are sufficient per the County Attorney.

What’s Biese and Chief Pohlman’s concern? Why is City Attorney working on this, and why are we paying for it?

Makes no sense… and this is contrary to the recommendations of the Red Wing Citizens Assembly:

Red Wing Citizens Assembly Event Report

From the report:

And “Better  Public Meetings” was a key component:

Looking forward:

Not only is Ordinance #115 action for a problem that doesn’t exist, it is a step in the wrong direction, away from “Better Public Meetings” and instead hanging a threat over the heads of lawfully participating citizens.

Ordinance #115?  NO!

I found my notes!!  On August 29, 2017, Alan and I went to the Goodhue County Courthouse for the GreenMark Solar v. Wacouta Township (Court Case No. 25-CV-17-1462) festivities — a Summary Judgment hearing.

FULL DISCLOSURE: I’m not a fan of any of the principals of GreenMark, Mark Andrew, Dennis Egan, and Julie Jorgensen.  Mark Andrew is a former Hennepin County Commissioner and a fan of burning garbage. Here’s a thread from the Mpls yak-yak list about Andrew when he was running for Mayor.  Dennis Egan, well, we had a few go rounds when he was Mayor of Red Wing AND was executive director of Minnesota Industrial Sand Council, and at the time silica sand mining issue was on agenda for City of Red Wing. Julie Jorgensen? Her Excelsior Energy Mesaba Project coal gasification plant took up 5 years of my full-time labor before it went to part-time and intermittent, and still just won’t fully go away! Minn. Stat. 216B.1694, Subd. 3(b)(1)(ii).

That said, I’m also a big fan of solar, from way, way back when my father designed the solar on the Minnesota Zoo (that was later taken down, it was hot water! Not quite what was most needed, and they didn’t know much about solar back then).

Here’s the GreenMark Complaint — couldn’t find the Wacouta Answer or the cross-motions for Summary Judgment. The Wacouta Township website is years out of date — what’s up with that?  (2014 is most current minutes, plus a notice of the May 2017 meeting about the solar project. ???)

Greenmark Solar v. Wacouta Township_Complaint 25-CV-17-1462

Here are a couple articles:

GreenMark Solar challenges Wacouta Township | Republican Eagle

Minnesota Developer Sues for Solar Garden Permit

The oral argument started with Greenmark.  Some points (not all inclusive):

Focus on Minn. Stat. 394.33, Subd. 1, that the township decision violates Town Powers Act. It’s inconsistent with their zoning. They can enact more restrictive zoning, but they didn’t, township has no solar ordinance.2

Township ordinance is ambiguous.  Frank’s Nursery case — if ambiguous, allow property owner to do what they want with the property.

“Agricultural community” — Planning Commission and Board selected different definitions.  Current use, peat mining and hay.  Pollinator scale 45, and 85 with solar.  Wetlands. Reduce carbon emissions.

Township argument:

Town Power Act does not restrict township actions. Bergen defines inconsistent, it’s not different.
Township Ordinance, Art. 3, Subd. 10, limits industrial uses that do not support agricultural. Solar is an industrial use. Twp. does allow solar in ag, BUT, it’s more restrictive, and it’s not inconsistnet.

The standard is whether down decision was rational, i.e., legally sufficient, supported by record.

Reasonable — inconsistent with agriculture, exported to the grid. CUP – exported, GreenMark takes issue with def of ag use, but see “Hubbard Broadcasting” denial of Conditional Use.  Review is deferential.  Mandamus (GreenMark’s action) review not to challenge discretionary decisions of local government.

Frank’s Nursery re: ambiguous ordinance, doesn’t require ordinance to be construed to support use. Court still needs to determine rationality.

Greenmark Rebuttal

Mandamus – this is about building permit, a ministerial act, not discretionary.

Does township even have jurisdiction/authority.

Purpose of project — Goodhue County, that’s the area.

Altenberg (?) – Town Powers Act – Twp didn’t adopt a more restrictive ordinance.

Bergum (?) – legislative intent of Town Powers Act.

Township Rebuttal

Cases of Mandamus for building permits

Goodhue – zoned agricultural, township couldn’t zone industrial, that would be inconsistent with county zoning.

__________________________

Judge Bayley said he has a lot of homework to do, and will do it and issue Order.

The Tyler Hills Neighbors have filed comments on the MPCA’s Findings of Facts, Conclusions of Law and Order for Negative Declaration on Need for an Environmental Impact Statement:

Comments – Tyler Hills Neighbors_4-12-2017

Here’s the MPCA’s Findings of Facts, Conclusions of Law and Order for Negative Declaration on Need for an Environmental Impact Statement:

Lab USA FOF (MPCA Final)

Why file anything?  Well, there are three major problems:

1. The MPCA states that French Island ash isn’t in the landfill, isn’t being dumped there!
2. Their delineation of the Water Tank Mounds is way off.
3. The project proposer changed the plan because there was a leachate issue, but now that they’re collecting the leachate it needs to be dumped back into the landfill to utilize the landfill leachate system.

This isn’t rocket science folks — how can you be so off on these things?

There’s a plan afoot here in Red Wing that strikes me as one of the more bizarre ideas, particularly given the subsidy the City of Red Wing is giving to Xcel Energy by leasing land from Xcel Energy for the term of Xcel’s own “ash mining” project and about 10 years beyond.  WHAT?

On Monday, the Pollution Control Agency will release the EAW and you’ll be able to find it HERE AT THIS LINK.

This PR blurb was issued recently by the Red Wing Chamber of Commerce, in support of the project:

Community Meeting to Share Information About Proposed Project to Process Ash and Recycle Metals from Xcel Energy’s Red Wing RDF Landfill – December 7 | 5PM-7PM | Red Wing Public Library.

Please join Lab USA and the City of Red Wing for a community meeting to learn more about a potential project that would process ash and recycle metals from Xcel Energy’s RDF landfill in Red Wing. Lab USA has proposed to build, own, and operate an environmentally-responsible ash processing facility that would be located next to the existing Xcel RDF landfill in Red Wing. The project will recover and recycle high quantities of iron and non-iron metals from ash in the landfill that was created by Xcel Energy’s Red Wing Generating Plant and from existing ash at Xcel Energy’s RDF landfill.The community meeting is another step in Lab USA’s ongoing work to secure permits and approvals and to reach out to the Red Wing community.

 *   Lab USA has completed a voluntary Environmental Assessment Worksheet (EAW) that shows the project will comply with rules and regulations related to noise, emissions, and other impacts.
 *   People from Lab USA, Xcel Energy, and the City of Red Wing will be at the meeting to answer questions and talk about the project, how the ash processing works, and how this project can benefit Red Wing.
This project is also a unique way for Red Wing to take its commitment to sustainable environmental stewardship to a new level by creating both economic and environmental benefits for City of Red. It will remove and recycle metals from the landfill, generate new revenue for the city, and create jobs as the project moves forward.

The meeting will also include a chance to learn more about EAW for the project and to share comments and feedback with Lab USA and the City of Red Wing. The public comment period for the EAW begins December 5th. The Red Wing City Council is expected to vote to approve the project in February of 2017. For more information please contact labusaredwing@gmail.com 

To be clear, the Monday meeting is hosted by Lab USA and is an “open house” format and is not a formal hearing.  The public comment period is for 30 days, until January 4, and I’l publish details on where to send the comments after the Notice is issued.  After January 4, 2017, there will be a determination of whether an Environmental Impact Statement is necessary, and remember, in recent history, the MPCA Board has only ordered ONE EIS, and after that one EIS, the MPCA Citizens Board was unceremoniously disbanded!  The odds of a declaration that an EIS is needed are zilch, zip, nada, ZERO.

The EAW will be released on Monday, FIND IT HERE, per Dan Card at the MPCA:

Kevin Kain is the environmental review project manager for the proposed Lab USA project. 

The reason you couldn’t find the EAW on our website is because it hasn’t been placed on public notice yet. That will occur next Monday Dec 5, 2016 which starts the 30 day public comment period.  You will find EAW posted next Monday at the bottom of https://www.pca.state.mn.us/quick-links/environmental-assessment-worksheets-and-environmental-impact-statements under Environmental Assessment Worksheets.

The company will be hosting an Open House and Kevin along with other solid waste permitting staff plan on attending.

What’s the deal?

Here are the documents I have, in chronological order for the most part, some are duplicates produced for the procedural step that followed:

• 8c2 – attachment – 11-09-15workshopminutes
• January-28-2016-storm water design material storage laydown area 9b – attachment
• 07- Public Works Maintenance Yard CUP – APC 3-15-16 (contains application)
• 06- Minutes – APC 3-15-2016_approved 4-19-16
• 09c1 Xcel Lease Agreement CC 04-25-2016
• 09c2-LabUSA Letter CC 04-25-2016
• April 25, 2016 CC Minutes
• May 9, 2016 CC Minutes
• May 9, 2016_9b – attachment (see January 28, above)
• 12- Status Report  APC 5-17-16

So what is this, the short version??  It’s a plan to “mine” the incinerator ash in the City of Red Wing landfill.  There’s a link to formally closing the dump, and I think that by doing this, the city takes a step toward that formal closure, one pushed by the Minnesota Pollution Control Agency.  But mining the ash?  The plan is for the City of Red Wing to hire a company, Lab USA, to “mine” the ash and remove salable materials from it.

Now here’s where it gets really weird.  The City of Red Wing’s planned part of this project lasts one year.  Xcel Energy, which has its own incinerator dump here, plans to do the same, and its part of the project lasts 11 years.  And the City of Red Wing signed a lease with Xcel Energy to do this project for 20 years.  TWENTY YEARS?  WHAT?!?!  Here are the details…

The City staff has stressed the underlying Red Wing goal of landfill closure through the state’s “Closed Landfill Program.”  When presented at the 11/9/2015 workshop (See 8c2-attachment -_11-09-15_Workshop_Minutes), there was “potential” for a sublease, and now that’s presumed.  Red Wing’s Public Works has pressure from the MPCA to close its landfill, and also from Xcel because Red Wing “does not have enough ash to support this project as a stand alone project.”  In other words, it’s dependent on Xcel to do this “project.”  RW Public Works’s Moskwa admits that “the Xcel Energy landfill ash is the primary reason for the Lab USA’s interest in submitting a proposal.” (See p. 5, March 22. 2016, Sustainability Commission MeetingMinutes).

The City of Red Wing project would last just 1 year, and Xcel Energy’s share would last 10-11 years.  (Lease, p. 17 of pdf: May 9, 2016_9b – attachment)  Yet the City of Red Wing is leasing Lots 1 and 2 from Xcel Energy for 20 years!  Given that disparity, the reasons for the lease/sublease arrangement with the City of Red Wing, Xcel, and Lab USA, rather than Lab USA taking on the lease, are not clear.  Because there are three parties in this, that provides some measure of inherent instability in the project, and because Lab USA has no history in Minnesota, they’ll receive higher scrutiny, one would hope.  On the other hand, the City of Red Wing seems to have yet another deal with Xcel Energy, where they’ve taken on a lease of land from Xcel for the City yard (for what purpose?) and that also includes lease of the land for this project and then the City plans to sublease to Lab USA (for the one year, for 11 years, for 20 years?), but yet the lion’s share of term of the project is the 10-11 years for Xcel, not the 1 year for Red Wing.  So why is the City of Red Wing buying into this, subsidizing this, so heavily?  To induce Xcel to do it?  Some other reason?

With the lease for both lots already signed, the project is moving forward, and that’s a problem.  How is this a good deal for the City of Red Wing?  Is anyone paying attention?

Further, calling this project an allowed use, as “Public Works Maintenance Shops and Yards,” is a stretch.  I’m not seeing any change from Agricultural Residential (AR) designation in the Comp Plan, and see statements that “Outlot A” was removed from the Tyler Hills PUD, Applications for Lot 1 and Lot 2 both denote Zoning as “AR.”  I don’t see a change from AR to anything else. The Application includes “Proposed Tyler Hills Fourth Addition” and the lease boundary doesn’t match up with Outlot A, and Figures 1 and 2 don’t match up with the proposed plat.  Details, anyone?

Other issues with the project itself?

• There’s traffic… “24 trucks/day” means 48 truck trips per day, or 24 trucks assigned to the area to make many trips back and forth and back and forth from the landfill to the building — this needs to be clarified, and impacts addressed.  And these trucks are in addition to currently running Xcel garbage burner ash trucks and in addition to RW’s Lot 1 “Public Works Maintenance Shops and Yards” trucks that will be at least an additional 15-30 pickups and trucks per day.

• There’s sound…  The homes directly north, west, and southwest are above, with this project situated down in a hole — and sound travels up.  The “CUP Sound Study” is for the RW crusher, and does not take into account the Lab USA operation, so how does the EAW address that?

• There’s dust…  From Mark Walsworth, who notes that “one of the items left out is just how much hazardous material that will be produced annually is not mentioned…all of it dust, and  that by themselves, these numbers should scare anyone!  Also notably missing is ANY plan or equipment to keep these from escaping to the environment.”

Lead        519,000 lbs

Cadmium       8,400 lbs

Chrome       51,000 lbs

Arsenic       6,000 lbs

Manganese   156,000 lbs

Nickel       24,600 lbs

Selenium      1,500 lbs

Mercury         600 lbs

• On and on…

Here are two Letters to the Editor written by Alan Muller about this:

LTE  Muller – Mining Incinerator Ash is Foolish Idea  12-10-2015

LTE_Muller – Incinerator ash plan and actions behind it are toxic  3-31-2016

LTE_Walsworth – Mayor didn’t raise NIMBY_4-6-2016

LTE_Muller – NIMBY is good thing, NIABY is better  4-15-16

We need to take a look at that EAW (remember, it’s prepared by the applicant/project proponent) and see what is revealed, what is considered, and what’s left out.