Several dozen concerned citizens attended a special meeting of the county board, planning commission and frac sand study committee to hear an update on the upcoming frac sand mining ordinance.SGH/Moorhead
Several dozen concerned citizens attended a special meeting of the county board, planning commission and frac sand study committee to hear an update on the upcoming frac sand mining ordinance.

Houston County Board of Commissioners are on the verge of extending the moratorium on new mining permits that they voted for nearly a year ago. The reason - a new industrial mining ordinance is not yet ready.

Commissioners took action on Feb. 28, 2012, imposing a yearlong interim ordinance (moratorium) on new mining permits. The board has the option of extending that act for another year.

The reason behind the original moratorium was to allow a new mining ordinance to be drafted - one that would address the burgeoning frac sand industry.

County commissioners, members of its planning commission and frac sand research committee members all met to discuss new ordinances with county staff on Feb. 12. They listened primarily to attorney Jay Squires, who represents the county on land-use issues.

Officials reviewed sample ordinances for commercial and construction mineral extraction, industrial mineral and metal extraction, Minnesota statutes regarding interim use permits, a sample county road upgrade and maintenance agreement, and a sample application packet for silica sand mining.

"The purpose of this is to talk about some of the higher-level issues," Squires said. "As you probably notice, the two ordinances are largely parallel. They relate to different things, but most of the provisions are the same.

"The county board has asked me to assist you in getting to the point where you have some good, solid, logical, defensible ordinances in place to deal with mining and deal with some of the newer issues that are presented with some of the frac sand mining proposals that the county has seen and probably will see in the future."

Squires said that singling out industrial silica sand mines from construction sand and gravel operations can be problematic from a legal standpoint.

What applies to one mine will usually apply to the other unless specific, well-defined reasons are given for differences in rules.

That observation worried some who attended the three-hour-long meeting.

Planning Commission chairman Charlie Wieser said that treating frac sand operations any differently from aggregate mines would invite lawsuits.

Squires agreed up to a point, but added, "Two different ordinances can regulate two different activities. As long as we have some rational basis for distinguishing between the nature of the activities, then it seems to me that's something that's reasonable."

Is a IUP or CUP better?

Interim use permits (IUP) differ from conditional use permits (CUP) in that they run for a specific length of time and aren't necessarily transferable if a property sells, Squires said.

The county currently uses CUPs for mining, but could switch to IUPs.

Research committee member Steve Beach said that aggregate mines can "run for 100 years" and a sunset provision wouldn't be a good thing to have in the commercial ordinance.

Planning Commission member Bruce Lee stated that his group routinely reviews CUPs every five years to see if problems crop up.

He said a CUP is usually transferable to the new owner upon sale of a property. Lee asked Squires if that would hold for an IUP.

"It depends on your ordinance," he replied.

Study committee member Eric Johnson said that such a document could reduce land values for mine landowners, since the buyer would need to go through the permitting process all over again.

What about existing mines?

Squires said that some mines that existed before zoning ordinances went into effect are "nonconforming", meaning they do not operate according to later statutes.

Even though the county can allow those operators to continue as before, "grandfathered" mines are still subject to regulations, he added.

"Generally speaking, they would continue on, but they would not be allowed to change or expand or convert to another operation.

"The concept is, it's a balance of the interests of the property owner to be able to continue with the operation, and the interests of the county to be able to assure that that permit isn't utilized to be able to initiate a use that was never contemplated when the permit was first issued."

How does reclamation work?

Current environmental regulations apply to nonconforming mines, Squires said. In addition, registered mines that don't have a reclamation plan will need to come up with one.

"We're talking about land here that's privately owned, it's not public lands," Johnson said. "Does the landowner have any say in the reclamation process?"

Frank said landowners should protect themselves by making sure their reclamation plan meets their wishes as well as the county's requirements.

"But does the landowner have the final say?" Johnson continued. "What if he says, 'I want to keep it like that instead of what you say I should do?"

"The answer to that would be no," Squires said. "There are some typical requirements in here and standards and details. I think it's always good that if you have a standard that you want to apply to everybody, it should be in your ordinance."

Slope requirements and soil replacement depth are two examples.

Squires said that when a mine goes unused for 12 months, it may be legally considered as out of operation according to state statute.

In certain cases that would mean that the reclamation process would automatically kick in. The county can exercise some discretion in the matter, he added.

For instance, gravel-crushing operations often stockpile product that sits for months before it's sold.

Lots of details remain undecided

Other issues such as security bonding, reclamation, mine density (six total industrial mines proposed), setbacks (1,000 feet from a residence), screening and safety barriers, distance from a public waterway, dust and noise (in decibels, measured at the property line), hours of operation (6 a.m. - 8 p.m. M-F summer, 7 a.m.- 5 p.m. winter, 7 a.m.- 3 p.m. Saturday year-round), and the maximum number of acres allowed to be open at one time (40) are all included in the sample documents, but aren't yet settled upon.

Environmental Director Rick Frank stated that the final details of both ordinances are still "up for discussion."

"It's rough, but we needed a starting point," he added later.

County Engineer Brian Pogodzinski spoke about road-use agreements. He said that money for repairs to county roads should be available up front rather than via security bond.

In a worst-case scenario, the insurer would drag the county into court rather than pay for road damage.

Adjoining counties are including reciprocal road use agreements, so Houston County will have a say so on loads passing through from other jurisdictions, he said. That should be afforded them as well, Pogodzinski added.

"Gravel trucks don't stop at county lines," Squires noted. "Counties need to do shared/joint planning."

Pogodzinski said that township officials should also play a primary role in defining haul routes.

"It's important that the county be made whole," Squires said on roadway damages. Other costs associated with permitting and administration would also be passed on to mine operators.

Where the samples originated

After months of debate over the issues by the study committee, county staff was asked to put together the samples as a place to start, Frank said later.

That was done in part by borrowing from what other counties have enacted. It was necessary to move the process along, but the ordinances are still open to change. Additions will be made.

One example of that is a directive that county commissioners made on Nov. 20, 2012, telling the study committee that the county will not allow processing of frac sand with water and flocculants.

Nor will commissioners allow backhauls of flocculant-laden materials from out-of-county processing plants to be dumped in Houston County.

Those key items were not in the sample documents presented.

Contacted later by the Herald, Frank said that the samples that Squires commented on are not the most up-to-date versions. The directives from commissioners will definitely find their way into the final draft.

The public weighs in

Squires fielded questions from residents at the end of the meeting. Several noted that processing prohibitions were left out of the draft, but county board members reaffirmed their stance.

"This is purely a draft," Commissioner Steve Schuldt said. "We're just trying to make it right."

When asked about a total ban on industrial mining, Squires said it would likely be subject to legal challenge. No officials went on record in support of such a move.

Ken Witt of Houston said, "I found it interesting that your proposals for construction and industrial mines are pretty much the same, as far as permitting and regulations.

"I'd like the committees and the board to strongly consider that. You can't lump your local rock quarry in with an industrial sand mine. I think that has to be considered in order to keep what we have going. It's what the county relies on."

Squires replied, "People are sensitive to your point. I think committee members recognize that there should be differences (in the ordinances)."

"It appears that there's a lot left to do," research committee member Rich Schild said.

Squires agreed. "There are big issues that you have to address," he said. "I do not think that will happen by the end of February. You should move forward and extend that (moratorium)."