Attorneys argue before county commissioners about frac sand mine
County board says mine is
Tuesday, June 26, 2012 5:20 AM
Houston County's Historic Courtroom heard the sound of legal arguments once more on June 19, when three attorneys addressed the Houston County Board of Commissioners in their new meeting room.
At issue is whether or not a CUP (conditional use permit) for an existing sand mine in northwestern Houston County is still valid.
The mine, near the city of Rushford, has changed owners and operators since the CUP was originally issued in 1992.
Commissioners have been wrestling with the question because a recently submitted operation plan would significantly increase activity at the site.
Senior Assistant Olmsted County Attorney Tom Canan, representing Houston County, spoke first.
"There wasn't any upward limit set on the mine in 1992," he noted. "If the operation is not significantly changed, it's not affected by the interim ordinance (moratorium).
"A five, 10 or 20 percent increase is not material. You're going to have to make a determination if the scope has changed since the CUP was renewed."
"There's a reason we enacted a moratorium," board chair Jack Miller said. "There's a lot of apprehension out there as to what the effect of these operations will have on the air and water, the noise, road congestion and so on... This has kind of jumped ahead of the game, so to speak. It puts us in a difficult position."
"I'm not trying to denigrate any operator who hasn't put a shovel in the ground yet, but regardless of who's doing it, we want to have some county controls."
Commissioner Tom Bjerke put the question in Canan's hands, "Does the county have the ability to restrict the amount of sand?"
"You would need a baseline (on past operations)," Canan said.
Bjerke asked, "Are we going to be liable if we impose restrictions on this sand mine that we don't put on others? What should we do?"
"It's a tough situation," Canan said. "The authority you still have is once it starts, if the mine poses noise and dust concerns, it still operates under the CUP.
"I'm assuming that there's some general language in there about dust control and noise, along with other issues.
"I don't think that you can materially stop the operation, but at the same time you haven't lost the ability to put reasonable restrictions on that to limit the collateral effects on the neighbors."
Rochester attorney Mark Utz appeared on behalf of Rick Frick, owner of Minnesota Sand, which has been hired to operate the mine and will hire local truck owners to haul sand.
When asked by Ferndale Country Club (a neighboring property) manager Justin Carrier how many trucks would haul out of the mine each day, Frick first demurred, then offered a guess when pressed by commissioners, estimating 100 to 125 loads daily based on 25 trucks making four to five trips per day.
Operations are set to begin in the next two weeks, mine engineer Jeff Griffin stated.
Houston attorney, Terry Chiglo, appeared on behalf of the Corey Baker family who lives next to the site.
He and Utz began a protracted debate on whether or not the CUP is valid, based on whether or not it legally transferred from the original owner and the original operator.
In 1992, owner Alan Thorson opened the sand pit on behalf of Minnowa Construction of Harmony. Tracie and Michelle Erickson bought the property in 2009.
Chiglo said that Thorson originally told the Houston County Planning Commission that 10,000 yards of sand would be removed, adding that the current operation plan calls for two million cubic yards to be mined.
"There has been a significant change," he said. "My client's position is that it (the CUP) does not transfer."
"We don't believe the use has changed," Utz countered. "We do not accept the statement that the permit is not valid."
Utz added, "The CUP has no restriction on transfer."
"I'm trying not to side with the mine or the neighbors," Canan said.
On one occasion, he called Chiglo's statement "an arguable position," on another, he noted, "There is no permit issued (or need for) each time a (CUP) renewal is issued."
Houston Township resident John Griggs urged caution, reading a handwritten note from neighbor Bryan Van Gorp who said his property would be adversely affected.
Money Creek resident Steve Hartwick also opposed the expansion of mining activity, stating that he grew up near the mine.
"We're not going to eliminate mining," Miller said. "What we're trying to do is put things in place that will not allow people to do things that are harming others."
"Between now and Tuesday (June 26), we'll come to a decision to the best of our ability."