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By LeAnn R. Ralph
CHIPPEWA FALLS — A Cooks Valley couple with a residence on county Highway DD has filed a lawsuit in Chippewa County against EOG Resources and Kraemer Mining & Materials for the operation of the DS frac sand mine.
Kevin and Donna Zwiefelhofer filed the lawsuit in Chippewa County December 11, 2020, and online court records indicate EOG Resources and Kraemer Mining & Materials were served notice of the lawsuit on December 22.
The Zwiefelhofers own a 40-acre parcel northeast of Colfax in the Town of Cooks Valley that contains their residence, which is located near the 240-acre DS Mine operated in partnership by EOG Resources out of Houston, Texas, and Kraemer Mining & Materials out of Burnsville, Minnesota.
According to the civil complaint, the Zwiefelhofers are asking for compensatory damages for damages to their property and to their health from operation of the frac sand mine as well as punitive damages and the costs associated with filing the lawsuit.
In addition, the couple is asking that EOG Resources and Kraemer Mining & Materials be ordered to cease blasting, mining, stockpiling and silica sand trucking operations for the DS Mine and to do mine reclamation.
The Zwiefelhofers are asking as well that the two companies be required to establish a fund, in an amount determined by the court, to maintain a testing and treatment program so the couple can receive medical testing and monitoring, and medical treatment, if necessary, until it is determined their exposure to crystalline silica dust and groundwater pollution is no longer a threat to their health.
The lawsuit also asks that EOG Resources and Kraemer Mining & Materials be required to restore the Zwiefelhofers’ property and the DS Mine to the condition it was in prior to contamination by crystalline silica dust and/or other contaminants and/or the reduction or loss of the view from their property.
The DS frac sand mine is capable of producing more than a half million tons per year of frac sand and also is used as a site to store waste materials from the DS Mine and other frac sand mines owned and operated by EOG Resources and Kraemer Mining & Materials, according to the civil complaint.
According to the Chippewa County Land Conservation and Forest Management website, the DS Mine received a mine reclamation permit in October of 2011 for 234 acres and another reclamation permit in July of 2015 for an additional 40 acres on property owned by Dennis Schindler.
There are currently five frac sand mines in Chippewa County with active reclamation permits. The mines range in size from 176 acres to 1,085 acres, according to the land conservation and forest management website.
The DS Mine operates from the beginning of April through the end of October each year and processes sand 24 hours per day seven days per week during that time period.
An EOG report in 2014 noted that 45,049 loads of sand were trucked from the DS Mine over the course of the year. The trucks were loaded with 25 tons of sand and were leaving the mine every 12 minutes, according to the civil complaint.
In 2018, the companies petitioned the town board to rescind a permit condition so that trucks could be run from the DS Mine during the time school buses were running, adding three hours to the day when the trucks would be hauling sand, the complaint states.
“With some operations occurring 24/7, the Zwiefelhofers get no respite from the intolerable noise from the DS Mine facility and its related activity,” according to the complaint.
The Wisconsin DNR Template Best Management Practices of fugitive dust control plans for industrial sand mining industries states, “The standard for fugitive dust emission quantification is by visual observation. If visible dust emissions are observed, they need to be suppressed.”
Stockpiles must be observed daily, and whenever there is a potential for fugitive dust, the piles must be watered, and the equipment to apply water must be on site, according to the civil complaint.
EOG and Kraemer have operated the DS Mine such that visible dust emissions have not been suppressed on multiple occasions, the complaint states.
Fugitive dust emissions also have left the DS Mine facility and created air pollution at adjacent properties in violation of NR 415.03 and/or NR 415.04, according to the complaint
The companies also received a notice of violation from the Wisconsin DNR for violating Wisconsin stormwater non-metallic mining general permit rules, too, the complaint notes.
EOG and Kraemer use blasting in the frac sand mine operations that send shockwaves through the air and ground that reach the Zwiefelhofers’ property, shakes the house and causes disturbing levels of noise, according to the complaint.
The Zwiefelhofers contend that their well water has been impacted by turbidity and sediments since the beginning of the DS Mine operations and the blasting, leaving them with contaminated drinking water, and ultimately, the collapse of their well and loss of access to well water on their property for a period of months, the complaint states.
The blasting also has caused substantial cracks in the foundation of the couple’s house, which has resulted in radon gas infiltrating the home and exposing the Zwiefelhofers to the radioactive gas, according to the complaint.
The exposure to radon gas and silica dust has caused breathing difficulties, severe coughing, physical injuries and other health problems for the Zwiefelhofers, the complaint states.
Because of the silica dust, noise pollution, blasting shockwaves and vibrations, groundwater contamination, damage to the water well, exposure to radon gas, damage to the view and the stigma of being located near the DS frac sand mine, the Zwiefelhofers’ property value has been damaged, the complaint states.
The loss of property value has damaged the property’s marketability and also the ability to use it to secure a mortgage for present or future financial obligations of the Zwiefelhofers. The frac sand mine operations also have substantially and adversely affected the Zwiefelhofers ability to use and enjoy their property and their home, according to the complaint.
“The negligently created environmental harms and property value reductions have been a substantial factor in creating personal fear, worry, anxiety, marital discord, inconvenience, discomfort, harassment, and harm and destruction of the Plaintiffs’ right to enjoy their property in a reasonably quiet and peaceful manner and further forcing Plaintiffs to incur expenses for monitoring the supply and control of water and air, medical expenses and expert consultant’s fees, all to the Plaintiffs’ damage,” the complaint states.
In addition, the lawsuit contends that the operation of the EOG/Kraemer frac sand trucks on the public roads around and near the Zwiefelhofers’ home has caused a public nuisance for the Zwiefelhofers and for the general public’s use of public roadways.
The lawsuit contends, too, that the EOG/Kramer operation of the DS Mine has created a private nuisance in that the Zwiefelhofers “also have the right to the exclusive use and quiet enjoyment of their property.”
The storage of waste material from the DS Mine and and from other mining or processing facilities, “including stormwater runoff and/or other mine sludge potentially with chemical additives and heavy metals in holding ponds and repeated blasting adjacent to residential properties is not a matter of common usage such as would be carried on by the great mass of mankind or many people in the community,” according to the complaint.
As of press time, no court hearings had yet been scheduled regarding the Zwiefelhofers’ lawsuit.