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By LeAnn R. Ralph
TOWN OF HOWARD — The Howard Town Board has approved a non-metallic mining license for Northern Sands Wisconsin to operate the Albertville Valley sand mine a few miles southeast of Colfax.
Northern Sands Wisconsin will operate “one hundred percent” according to the Town of Howard’s non-metallic mining ordinance, said Dennis Dvoracek, Supervisor 2 on the Howard Town Board, at the January 8 meeting.
Northern Sands Wisconsin is planning to operate a 1,300-acre frac sand mine that would stretch north and south along the Chippewa County and Dunn County line directly east of the intersection of county Highway N and county Highway A.
“Anything we grant tonight will decline special exceptions or variances that were asked for in that license (previously). And (when) license is granted, they will have to adhere to our ordinance completely,” Dvoracek said.
Adhering to the ordinance, he said, includes covered sand piles; 800-foot setbacks; operating the mine 12 hours per day, five days per week; no mining after 6 p.m.; and no mining on weekends.
“That seems to be what everybody said at the meeting. We took all that in, and most of that special meeting was discussed that way. That’s about all I have to say,” Dvoracek said.
The Howard Town Board held a public hearing on the application for a mine license in October and a public hearing on the proposed developer’s agreement in November.
The proposed developer’s agreement included a number of exceptions and variances.
“It also talks about any remaining submittals that have not been submitted yet must be taken care of and given to us prior to the start of any mining,” Dvoracek said.
One of the submittals needed yet includes plans for the conveyor system.
Northern Sands Wisconsin “will operate under the ordinance as written,” said Tom Zwiefelhofer, Supervisor 1 on the Howard Town Board.
“Whatever the ordinance says,” Dvoracek said.
One person in the audience wondered what “mining operations” included.
“Anything to do with the mine,” Dvoracek replied, adding that it refers to anything from constructing the buildings to mining the frac sand.
“They must be in compliance,” said Vernon Schindler, town chair.
“Whatever is says in the ordinance is what mining is,” said Susan Haake, town clerk.
Another person in the audience asked about the piles of sand being covered and referred to the phrase “process sand piles.”
“All sand piles. If there is a sand pile, it must be covered … the ordinance says they all have to be covered,” Dvoracek said.
Zwiefelhofer read from the town’s ordinance: “In order to minimize the emissions of dust at a processing and/or transloading facility, stockpiling of unprocessed material, waste or finished product is prohibited and must be fully enclosed in a structure.”
The provision applies to both the processing and the transloading facility, he said.
“It must all be covered,” Dvoracek said.
The provision does not refer to the mine itself, Zwiefelhofer noted.
Dvoracek pointed out there should not be any stockpiled sand at the mine site because the sand will be put on conveyors and transported to the processing plant.
Dvoracek also noted that Northern Sands Wisconsin must maintain financial assurance, including enough money to provide an alternative water supply for town residents if necessary.
Northern Sands Wisconsin must maintain financial assurance and must maintain liability insurance up to $5 million, Zwiefelhofer said.
“They have to sample all private wells within one half mile of the mine site, once they have permission to do so. You want to get a baseline on your well if you are within one half of a mile … so later you can see if there is any difference from before the mine. That was one of the things I wanted people to know,” Dvoracek said.
The mine license requires Northern Sands Wisconsin to test for potential contaminants and for water quantity.
According to the mine license, “Pursuant to Section 17.07(3)(a)(i) of the Mine Ordinance, all private wells within ½ mile of the mine site, for which NSW can obtain permission, shall be sampled for the potential contaminants listed in Section 17.07(3)(a)(i) of the Mine Ordinance and for water quantity, prior to the commencement of nonmetallic mining operations.”
One person in the audience asked about dust control related to the manufacturing and loading facility and wondered how much land would be open at a time for the mine site.
“We will fully comply with the ordinance,” said John Behling, an attorney representing Northern Sands Wisconsin.
The dust control plan is included in the air permit issued and regulated by the state Department of Natural Resources, he said.
Upon issuance of the air permit, a full copy will be provided to the Town of Howard, Behling said.
One of the provisions of the mining ordinance is that the Town of Howard must have a copy of all of the necessary permits before mining activities can begin.
In addition to the fugitive dust control plan as part of the DNR air emission permit, other permits include a DNR construction site storm water discharge permit; a high capacity well permit from the DNR and a Wisconsin Pollution Discharge Elimination System (WPDES) general permit.
Several plans also would be required, including a water conservation plan filed with Chippewa County; a storm water pollution prevention plan; and a spill response plan.
Another person in the audience asked about the “reject” material from a particular mining phase and whether the material would stay on the same parcel or be taken somewhere else.
“We will fully comply with the ordinance. None of the reject material will leave the site,” Behling said.
Another person asked about the depth of the mine.
“Ten feet above the waterline,” Zwiefelhofer said.
“Again, we will fully comply with the ordinance and the county reclamation plan,” Behling said, noting that Northern Sands Wisconsin will not come any closer than 10 feet above the groundwater.
“If you see water bubbling up, you know you went too deep,” commented an audience member.
Terry Nichols, a Town of Colfax resident and a member of the Town of Colfax Plan Commission, asked how much the Town of Howard’s comprehensive land use plan weighed into the decision of whether to grant a mine license.
“Are you following your comprehensive plan?” Nichols asked.
Behling objected to Nichols’ question.
“I now feel like we are getting into legal arguments, and I would encourage the board to follow your own ordinance and your own rules,” Behling said.
Nichols said the Town of Colfax “makes a point” of following the comprehensive land use plan and described it as “a living document.”
Dvoracek asked if the Town of Colfax is zoned, and when Nichols said the Town of Colfax is zoned, Dvoracek pointed out that the Town of Howard is not zoned.
“It is extremely easy for you (to consider the comprehensive land use plan) because you are zoned,” Dvoracek said.
“We tried to get some stuff done so we could follow our (land use plan) like you do, but the town turned it down and did not want to be zoned. So that takes what happened — that’s why we have an ordinance we have to live by,” he said.
“You are saying your comprehensive land use plan is worthless?” Nichols asked.
“If you are not zoned, it is worthless,” Dvoracek said.
Ron Koshoshek, a Town of Howard resident who serves as the town board’s mining consultant, said he was chair of Howard’s plan commission when the comprehensive plan was drafted.
“In anticipation of possibly presenting a motion to enter town zoning, creating town zoning powers, we drafted the comprehensive land use plan. It’s part of the requirement. It’s part of the statute,” Koshoshek said.
“We sent out a questionnaire to land owners in the town, and 81 percent approved town zoning — 81 percent,” he said.
Sending out questionnaires to residents is part of the formal process of developing a comprehensive land use plan under Wisconsin’s Smart Growth law.
“We felt like we had an obligation to bring that motion up to the town board at our annual meeting, and it was passed. (But) after that, people were upset that didn’t want town zoning. So they made a motion to reject or cancel or negate that,” Koshoshek said.
After zoning had been approved at the Town of Howard’s annual meeting in April of 2011, a special town meeting of the electors of the Town of Howard was held in May of 2011, and that’s when the decision to approve town zoning was overturned.
Town of Howard residents voted 93 “yes” to rescind town zoning in 2011 to 53 “no” to not rescind zoning.
At that time, the Town of Howard had 447 registered voters.
“So we no longer had a zoned town. Therefore, that comprehensive plan no longer guides the plan commission. It’s just the way the state law reads. So there you have it,” Koshoshek said.
At the May of 2011 meeting when town zoning was rescinded, those who were not in favor of town zoning said they did not want anyone to tell them what color to paint their houses or whether they could cut down a tree in their yard.
Those who were in favor of town zoning said zoning ordinances would protect the property rights of all township residents and often mentioned the rapid development of sand mines in Chippewa County as an example of activity over which Town of Howard residents might want to exert some control.
“If you think this was easy for all three of us — if you think none of us lost any sleep at all doing this whole thing. We don’t just represent the people who don’t want the mine. We represent the people who want the mine, too. So it was very difficult for us,” Dvoracek said.
“That’s one of the reasons why we are glad to have an ordinance because, when we drafted the ordinance, we thought, ‘what can we do that would be best for the people who don’t want the mine?’ We can’t turn (a frac sand mine) down if they meet (the ordinance) one hundred percent, which they are doing, so it was not an easy thing for any of us. All of us lost a lot of sleep over what we could do that was best for the town itself,” he said.
At that point in the January 8 meeting, Schindler said a motion was in order regarding the application for a non-metallic mining license for Northern Sands Wisconsin.
A motion to approve the application for a mine license from Northern Sands Wisconsin was made by Zwiefelhofer and seconded by Dvorcek.
On a roll-call vote, all three town board members approved the application for the license.
Prior to the public hearing on the mine license application in October, the Howard Town Board hired SCS Engineers Environmental Consultants and Contractors out of Madison to evaluate the application.
The engineering report about the proposed Albertville Valley sand mine includes a number of recommendations pertaining to incomplete sections of the mine license application.
According to the engineering report, “the final design for the mining operations has not been completed, and methods for control of surface water, screening design, conveyance methods and other designs and operation elements are not detailed in the license application.”
The report also recommends that before construction or mining activity begins, Certified Survey Maps of the properties must be provided to the Town of Howard.
The Town of Howard’s mine licensing ordinance requires CSMs, but the maps were not provided with the application for a mine license.
One person in the audience at the January 8 meeting asked about the engineering report and what obligation Northern Sands Wisconsin would have to follow the recommendations.
The answer to his question was that the engineering report recommendations to make sure the mine license application was complete “were just suggestions to the board.”
Members of the Howard Town Board did not say whether the missing portions of the mine license application required by the township’s mine licensing ordinance had been submitted.
According to the Town of Howard’s mine licensing ordinance, Section 17.05(3)(b), “The Town Board may request the applicant to submit additional information if the Town Board determines that application is incomplete. The Town Board may also retain the services of an engineering firm or other qualified person with appropriate expertise (“retained expert”) to review the application and report to the Town Board whether additional information is required for review of the application and to determine whether the application meets the standards of this Chapter.”
The SCS Engineers report recommends approval of the mine license should be contingent upon a number of conditions.
The Howard Town Board did not include any conditions in the motion to approve the mine license.