Environmental Review of Multiple Silica Sand Projects Proposed in Fillmore, Houston, and Winona Counties

 We need to build support for MPCA's Environmental Quality Board to do an Environmental Impact Study for Minn. Sands projects in Fillmore, Houston, and Winona counties.

  The important issues that affect us affect the whole driftless region, and our local levels of government do not have the resources to handle this. 

  Please contact Exec. Dir. Bob Patton    bob.patton@state.mn.us  (651/201-6226).

Wishing you well,

Bonita

From: Patton, Bob (MDA) [mailto:bob.patton@state.mn.us]
Sent: Friday, March 08, 2013 1:26 PM
Subject: Draft Findings of Fact, Conclusions and Order on Requests to Designate a Different RGU (Minnesota Sands, LLC, Projects)

 

Dear Interested Party:

 

Please see the attached Conclusions and Order on requests to designate a different responsible governmental unit for environmental review of multiple silica sand projects proposed by Minnesota Sands, LLC, in Fillmore, Houston, and Winona Counties.

 

If you have any questions, please contact me.

 

Sincerely,

 

 

Bob Patton

Executive Director

Environmental Quality Board

520 Lafayette Road North

St. Paul, MN 55155

Ph: 651-201-6226

 

www.eqb.state.mn.us


March 8, 2011
RE: Draft Findings of Fact, Conclusions and Order on Requests to Designate a Different
Responsible Governmental Unit for Environmental Review of Multiple Silica Sand
Projects Proposed in Fillmore, Houston, and Winona Counties

To Whom it May Concern:

Enclosed are draft findings of fact, conclusions and order on the above-referenced matter.
The draft findings of fact, conclusions and order reflect the EQB staffs recommendation. They
will, of course, he revised as needed to reflect whatever decision is arrived at by the
Environmental Quality Board.

The EQB meeting will be as follows

March 20, 2013

1:00 to 4:00 p.m.

MPCA Board Room
520 Lafayette Road North
St Paul, MN

If you have any questions or need any assistance, please do not hesitate to contact me at
651-201-6226.

Sincerely,
Rob Patton
Executive Director
Environmental Quality Board
Enclosure: Draft Findings of Fact, Conclusions and Order
cc: Leah 1-ledman, Assistant Attorney General
Dave Frederickson, EQB Chair
Environmental Quality hard
520 LAFAYETTE ROAD NORTH
ST. PAUt., MN 55155
PHONE: 651.757.2873
WMN.EQB.STATE.MN.US

X\EQB\ENVIRONMENTAL REVIEW PROGRAM\RGU reassignments\2U1 3\Minnesota Sands LLQ-FilImore--Houston-Winona Sdica Sand
Proects\Draf’t FCO\Minnesota Sands drati FCO-transininal docx

STATE OF MINNESOTA ENVIRONMENTAL QUALITY BOARD

In the Matter of Requests to Designate a

Different Responsible Governmental Unit For

Environmental Review of Multiple Silica

Sand Projects Proposed by Minnesota Sands,

LLC, in Fillmore, Houston, and Winona Counties

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

The above-captioned matter came before the Minnesota Environmental Quality Board
(EQB) at a special meeting on March 20, 2013, pursuant to requests from Fillmore and
Houston Counties to designate a different responsible governmental unit (RGU) for silica
sand mines proposed by Minnesota Sands, LLC, in Fillmore, Houston, and Winona
Counties.

Based upon all of the proceedings herein, the Minnesota Environmental Quality Board
makes the following:

FINDINGS OF FACT
1. The EQB received a letter from Fillmore County dated February 28, 2013, stating that
Minnesota Sands, LLC “proposes to operate [silica sand] mines in at least the
following: Fillmore County at the Boyum, Dabelstein, Kesler, and Wadewitz sites;
Houston County at the Erickson site; and Winona County at the Dabelstein and Yoder
sites.”

2. The February 28, 2013 Fillmore County letter states that “Fillmore County
understands the need to complete and Environmental Impact Statement (EIS) because
the sites are located in close proximity, span across the three counties, and concern
the same developer.”

3. The February 28, 2013 Fillmore County letter states, “[i]n Fillmore County,
Minnesota Sands planned to complete separate EAWs for the Boyum, Dabelstein, and
Kesler sites, but has voluntarily agreed to complete an EIS for their proposed projects
spanning Fillmore, Houston, and Winona Counties. Fillmore County agrees one
comprehensive EIS is appropriate for the Minnesota Sands projects located in all
three counties.”

4. The February 28, 2013 Fillmore County letter states. “Fillmore County requests the
Environmental Quality Board to designate a State agency to act as the regulatory
government unit (RGU) to prepare an EIS for the Minnesota Sands projects…”

5. The EQB received a letter from Houston County dated March 5, 2013, stating,
“…Houston County requests the Environmental Quality Board to designate a State agency to act as the regulatory governmental unit (RGU) to prepare an EIS for the proposed frac sand mines [concerning Minnesota Sands, LLC].”

6. EQB staff has been in communication with Winona County staff about the requests
from Fillmore and Houston Counties.

7. Based on discussions with Houston County staff, in addition to the Boyum,
Dabelstein (Fillmore County), Kesler, Wadewitz; Erickson; Dabelstein (Winona
County), and Yoder sites, there are also mines proposed by Minnesota Sands, LLC, in
Houston County on land owned by Leonard and Kathleen Tostenson, Porteous Olson,
James Chapel, and Thomas and Virginia Johnson.

8. Minnesota Rule 4410.0200, Subp. 68 reads:
"Proposer" means the person or governmental unit that proposes to undertake or to direct others to undertake a project. Minn. R 4410.0200, Subp. 68 (2011).

9. The EQB finds that Minnesota Sands, LLC, as the entity proposing to operate silica
sand mines in Fillmore County, Houston County, and Winona County, meets the
definition of “proposer.”

10. Minnesota Rule 4410.0200, Subp. 60 reads:
"Phased action" means two or more projects to be undertaken by the same proposer that a RGU determines:
A. will have environmental effects on the same geographic area; and
B. are substantially certain to be undertaken sequentially over a limited
period of time. Minn. R. 4410.0200, Subp. 60 (2011).

11. The EQB finds that the Boyum, Dabelstein (Fillmore County), Kesler, Wadewitz;
Erickson; Dabelstein (Winona County), and Yoder sites are within an 8.5 mile radius.
When the Tostenson, Olson, Chapel, and Johnson sites are included, all the sites
together are within a 12.5 mile radius.

12. The EQB finds that the projects are in various stages of local approval and therefore
are substantially certain to be undertaken over a limited period of time.

13. The EQB finds that the projects proposed by Minnesota Sands, LLC, in Fillmore,
Houston, and Winona Counties:
a. are two or more projects to be undertaken by the same proposer;
b. will have environmental effects on the same geographic area; and
c. are substantially certain to be undertaken sequentially over a limited period of
time.

14. The EQB finds that projects proposed by the Minnesota Sands, LLC, in Fillmore,
Houston, and Winona Counties meet the definition of a phased action.

15. Minnesota Rule 4410.1000, Subp. 4 reads in relevant part:
Connected actions and phased actions. Multiple projects and multiple stages of a single project that are connected actions or phased actions must be considered in total when determining the need for an EAW, preparing the EAW, and determining the need for an EIS.
***Minn. R. 4410.1000, Subp. 4 (2011).

16. Minnesota Rule 4410.2000, Subp. 4 reads in relevant part:
Connected actions and phased actions. Multiple projects and multiple
stages of a single project that are connected actions or phased actions must
be considered in total when determining the need for an EIS and in
preparing the EIS. *** Minn. R. 4410.2000, Subp. 4 (2011).

17. Minnesota Rule 4410.2000, Subp. 5 reads:
Related actions EIS. An RGU may prepare a single EIS for independent projects with potential cumulative environmental impacts on the same geographic area if the RGU determines that review can be accomplished in a more effective or efficient manner through a related actions EIS. Aproject must not be included in a related actions EIS if its inclusion would unreasonably delay review of the project compared to review of the project through an independent EIS.
Minn. R. 4410.2000, Subp. 5 (2011).

18. The EQB finds that projects proposed by the Minnesota Sands, LLC, in Fillmore,
Houston, and Winona Counties are multiple projects that are phased actions, and therefore must be considered in total when preparing an EAW or EIS.

19. The EQB finds that projects proposed by the Minnesota Sands, LLC, in Fillmore,
Houston, and Winona Counties have potential cumulative environmental impacts on the same geographic area and review of the projects can be accomplished in a more effective and efficient manner through a single EIS.

20. Minn. R. 4410.4300, Subp. 12 reads in relevant part:
Nonmetallic mineral mining. Items A to C designate the RGU for the type of project listed:
***
B. For development of a facility for the extraction or mining of sand, gravel, stone, or other nonmetallic minerals, other than peat, which will excavate 40 or more acres of land to a mean depth of ten feet or more during its existence, the local government unit shall be the RGU.
***

21. Minn. R. 4410.4400, Subp. 9 reads in relevant part:
Nonmetallic mineral mining. Items A to C designate the RGU for the type of project listed:
***

B. For development of a facility for the extraction or mining of sand, gravel, stone, or other nonmetallic minerals, other than peat, which will excavate 160 acres of land or more to a mean depth of ten feet or more during its existence, the local government unit shall be the RGU.
*** Minn. R. 4410.4400, Subp. 9 (2011).

22. Minn. R. 4410.0500, Subp. 1 reads:
RGU for mandatory categories. For any project listed in part 4410.4300 or 4410.4400, the governmental unit specified in those rules shall be the RGU unless the project will be carried out by a state agency, in which case that state agency shall be the RGU. For any project listed in both parts 4410.4300 and 4410.4400, the RGU shall be the unit specified in part
4410.4400. For any project listed in two or more subparts of part 4410.4300 or two or more subparts of part 4410.4400, the RGU shall be determined as specified in subpart 5.
Minn. R. 4410.0500, Subp. 1 (2011).

23. Minnesota Rule 4410.0500, Subp. 5 reads:
For any project where the RGU is not listed in part 4410.4300 or 4410.4400 or which falls into more than one category in part 4410.4300 or 4410.4400, or for which the RGU is in question, the RGU shall be determined as follows:
A. When a single governmental unit proposes to carry out or has sole jurisdiction to approve a project, it shall be the RGU.
B. When two or more governmental units propose to carry out or have jurisdiction to approve the project, the RGU shall be the governmental unit with the greatest responsibility for supervising or approving the project as a whole. Where it is not clear which governmental unit has the greatest responsibility for supervising or approving the project or where there is a
dispute about which governmental until has the greatest responsibility for supervising or approving the project, the governmental units shall either:
(1) by agreement, designate which unit shall be the RGU within five days of receipt of the completed data portion of the EAW: or
(2) submit the question to the EQB chairperson, who shall within five days of receipt of the completed data portions of the EAW designate the RGU based on consideration of which governmental unit has the greatest responsibility for supervising or approving the project or has
expertise that is relevant for the environmental review.
Minn. R. 4410.0500, Subp. 5 (2011).

24. The EQB finds that Minnesota Rule 4410.0500, Subp. 5, paragraph B is applicable to
the projects proposed by the Minnesota Sands, LLC, in Fillmore, Houston, and
Winona Counties because two or more governmental units have jurisdiction to
approve the projects.
25. The EQB finds that Fillmore, Houston, or Winona Counties could be RGU for a
single EIS on multiple sites in multiple counties pursuant to Minn. R. 4410.0500,
Subp. 5, paragraph B.

26. Minn. R. 4410.0500, Subp. 6 reads:
Notwithstanding subparts 1 to 5, the EQB may designate, within five days of receipt of the completed data portions of the EAW, a different RGU for the project if the EQB determines the designee has greater expertise in analyzing the potential impacts of the project. Minn. R. 4410.0500, Subp. 6 (2011).

27. The EQB finds that, in the instances of the Boyum, Dabelstein, Kesler, and Wadewitz
sites in Fillmore County, and the Erickson, Tostenson, Olson, Chapel, and Johnson
sites in Houston County, no EAW has been started, and therefore no completed data
portion of the new EAW has yet been received by an RGU, or EQB.

28. The EQB finds that, in its history of applying Minn. R. 4410.0500, Subp. 6, in every
known instance, no EAW data submittal had been made.

29. The EQB finds that, to designate a different RGU than Fillmore County, under Minn.
R. 4410.0500, Subp. 6, the EQB must determine that the designee has greater
expertise in analyzing the potential impacts of the project.

30. The EQB finds that local governments are the RGU for mandatory EAWs and EISs
for nonmetallic mineral mining projects, with the exception of peat mines.

31. The EQB finds that by application of Minn. R. 4410.0500, Subp. 1 and 5, local
governments are commonly presumed to have greater responsibility for approving,
and greater expertise in analyzing potential impacts of nonmetallic mineral mining
projects than other units of government. However, in this case, multiple projects are
proposed in multiple counties that are phased actions. Based on Minn. R. 4410.1000,
Subp. 4, paragraph 1, and 4410.2000, Subp. 4, paragraph 1, multiple projects that are
phased actions must be considered in total in preparing an EAW or EIS.
Additionally, state agencies may have greater expertise than local government in
analyzing certain potential impacts.

32. The Minnesota Pollution Control Agency was RGU for the EIS for Hancock Pro Pork
Feedlot Project, in Stevens and Pope Counties. The project consisted of feedlot
facilities on multiple sites in two counties, Stevens and Pope.

33. The EQB finds that the MPCA has expertise regarding multi-site and multi-county
EISs.

34. The EQB finds the projects proposed by Minnesota Sands, LLC, in Fillmore,
Houston, and Winona Counties have potential impacts such as those on air quality,
water resources, and transportation, where state agencies have greater expertise than
local government.

35. The EQB finds that the potential impacts for the proposed projects encompass the
responsibilities of several state agencies.

36. Minnesota Statutes, Section 116C.01, reads:
FINDINGS.
The legislature of the state of Minnesota finds that problems related to the environment often encompass the responsibilities of several state agencies and that solutions to these environmental problems require the interaction of these agencies. The legislature also finds that further debate concerning population, economic and technological growth should be encouraged so that the consequences and causes of alternative decisions can be better
known and understood by the public and its government. Minn. Stat. Section 116C.01 (2011)

37. The EQB finds that its membership includes the heads of state agencies including the
Departments of Administration, Agriculture, Commerce, Employment and Economic
Development, Health, Natural Resources, and Transportation, the Pollution Control
Agency, and the Board of Water and Soil Resources, and the EQB is able to draw
upon the expertise of its member agencies.

38. The EQB finds the EQB has greater expertise in analyzing the potential impacts of
the multiple, phased-action, and cross-county projects than Fillmore, Houston, or
Winona Counties.

Based on the foregoing Findings of Fact, the Minnesota Environmental Quality Board
makes the following:
CONCLUSIONS OF LAW
1. Any of the foregoing Findings of Fact more properly designated as Conclusions of
Law are hereby adopted as such.

2. The Environmental Quality Board has jurisdiction over the subject matter of this
proceeding pursuant to Minnesota Statutes chapter 116D and Minnesota Rules
4410.0500, Subpart 6.

3. The request for EQB to decide the question whether to designate a different RGU for
the proposed projects were properly brought to the EQB Board.

4. The EQB concludes that the EQB has greater expertise in analyzing the potential
impacts of the proposed project than Fillmore, Houston, or Winona Counties.

Based on the Findings of Fact, Conclusions and the entire record of this proceeding, the
Minnesota Environmental Quality Board hereby makes the following:
ORDER
The EQB hereby reassigns the status and responsibilities of responsible governmental
unit for silica sand mines proposed by Minnesota Sands, LLC, in Fillmore, Houston, and
Winona Counties, from Fillmore, Houston, or Winona County to the Environmental
Quality Board.

Approved and adopted this 20th day of March, 2013.
____________________________________
David J. Frederickson, Chair
Minnesota Environmental Quality Board