9.b) Larkin Hoffman Letter-Zavoral Mining and Reclamation Project (CUP Approval) L arkin
HO�.an Iarldn Hoffman Daly&Lindgren Ltd.
ATTORNEYS
1500 Wells Fazgo Plaza
7900 Xerxes Avenue South
Minr�apolis,Minnesota 55431-1194
GENERAL 9SZ-g3S�.3HOO
FA x: 952-8963333
wea: wwwlarldnhoffman.com
February 19,2012
The Honorable Randall Simonson,Mayor of Scandia
and Members of the Scandia City Council
14272 209th Street North
Scandia,MN 55703-8503
Re: Z.avoral Mining and Reclamation Project: Conditional Use Permit Approval
Dear Mayor Simonson and City Council Members,
This letter is written on behalf of Tiller Corporation,one of the applicants and the proposed
operator of the Zavoral Mining and Reclamation Project(the"Project") in Scandia(the "City").
Tiller Corporation asks the City to issue its conditional use approval for the Project and to
approve the Project in accordance with state law, the City's Development Code and the extensive
information and analysis which has already been obtained concerning the Project.
Tiller corporation representatives have been working with City staff as the City Council develops
the terms and conditions of the City's Conditional Use Permit(the"CUP"). It is clear from these
extensive discussions that there is a tremendous pressure from project opposition to impose as
permit conditions various items that do not advance the understanding of the Project,provide any
protection to the regulatory interests of the City or improve performance of the Project. The
additional unnecessary expense is substantial. There are several items that the City has been
asked to consider in the CUP with.which Tiller Corporation disagrees including the points
discussed below.
The Draft CUP would condition the project on actions of third parties(including the City
and its consultants)over which obviously neither Tiller Corporation nor the Owner of the
Project Site have control.
This an unreasonable imposition because it places Tiller Corporation in the Eircumstance that it
does not have the ability to control the satisfaction of the conditions of the approval. Tiller
. Corporation does not seek to control the actions of the City, but does need to control its own
destiny. There is a simple way to address this item. The CUP conditions should be described
objectively based on the circumstances of the Project without reserving to the City the ability to
azbitrarily fail to meet the described condition. The City should not be placed in the position of
being asked to cause a failure of conditions in the CUP.
Mayor and City Council of Scandia
February 19, 2012
Page 2
Shortening the Duration of Mining Operations Yields Avoidable Traffic Increases.
The City has been asked to limit the operating period of the mining segment to a shorter duration
than what was reviewed by the City's EIS. To start the term of the operation 30 days after
issuance of the permits for the Project is contrary to the basis for the project as described in the
EIS. This ignores the calculations of the project impacts on the basis of 39 months of mining of
the material. The additional time needed to begin site clearing is very important,especially
because of the limited construction season and the uncertainty of the schedule for the remaining
permissions.
In addition it is also very important to recognize that the City's decision to impose a shortened
duration on the Project will operate to put increased pressure on the Project to move greater
quantities of materials during hauling events. The lessened ability to base hauling on market
demands means more intense hauling activities as was described in the EIS. The intensity and
visibility of hauling activities is substantially decreased with a longer duration that allows
material to be extracted based on mazket and customer requirements and use. This likely means
that the Vaffic impacts would be greater than necessary because of the need to meet artificially
imposed deadlines and requirements for removing product. That situation is one of the tradeoffs
that results from shortening the duration of the Project.
1'he appropriate approach is to follow the alternative reviewed in the EIS allowiing the mining
over a period of 3.3 -5 years and to measure the duration of the mining activities from the time it
begins to operate and not from an artificial beginning point.
The Requested Permitting Framework Ignores the Extensive Information Developed by the
City at Tiller's Expense in a Four Year Long Environmental Review of the Project.
The project opponents' proposed regulatory framework for this Project is to ignore the extensive
information assembled in the EIS and to substitute a detailed and expensive monitoring regimen
for each of the following areas about which public comment was received:
• Traffic
• Noise
• Air Quality
• Surface Water
• Ground Water
• Zavoral Creek
• Highway 97 Traffic
Each of these items was extensively measured, calculated,modeled and analyzed with the result
that the EIS concludes that the Project would not have the potential for significant effects if it is
operated as proposed. The City,however has been asked to overlay these conclusions with
additional proposed performance"monitoring" in connection with operation of the Project,
Mayor and City Council of Scandia
February 19, 2012
Page 3
notwithstanding there is significant evidence that none of these issues will be affected by
operating the Project as described in the Conditional Use Permit.
The City staff's proposed Resolution 02-19-13-04 approving the CUP makes the findings
required by the City's Development Code based upon the information currently known about the
Project. In the resolution the Council is asked to find that the information known about the
Project today supports the conclusion that the Project as it is presented meets the City's
Development Code standards. None of those findings is aided or improved by the additional
monitoring proposed to be added to the Project.
There aze no longer any unanswered questions about the Project of any significance or substance.
That may have been the case before Tiller Corporarion was required to spend four years and
hundreds of thousands of dollars on an Environmental Impact Statement. Tiller Corporation
asked the City to allow it to supplement the EAW. This effort would have provided all of the
relevant substantive information upon which the permitting decision is based several years
eazlier. Now, ironically,the City having investigated the issues presented by preparing the
Environmental Impact Statement,the City is now being further pressed to require Tiller
Corporation to monitor those same circumstances all at significant expense to the Company and
its customers.
Groundwater Separation Monitorin�
The CUP would have Tiller Corporation monitor the depth to groundwater separating the floor of
the mined area from groundwater. This conditivn effectively imposes a 25-foot minimum
separation between mining and groundwater at the Property. The City is asked to impose this
condition notwithstanding that its ordinances allow and accommodate sand and gravel mining
intersecting groundwater. Project opponents cite no regulatory provision proscribing a
separation distance greater than three-feet. The discussion of water table separation in the EIS
does not support this requirement.
Traffic Monitorin�
The City has been asked to include in the CUP an obligation that Tiller Corporation pays the cost
of monitoring the traffic from the facility. This proposed condition fails to recognize that the
Project is a substitution for exiting traffic serving Scandia Mine and does not create
significant new traffic. It is also significant that all traffic from the Project will be entering the
highways from the increased safety of a controlled intersection. The EIS thoroughly evaluated
the Project's ability to produce traffic that would use State Highway 95 and State Highway 97.
The City does not manage or operate those highways nor does it regulate traffic on those
highways. Accordingly, it has limited regulatory interests to be furthered by controlling the
traffic generated by the Project.
Mayor and City Council of Scandia
February 19, 2012
Page 4
More importantly than the limited ability to govern traffic is the scope magnitude and nature of
the Project as it has evolved. The Project is the excavation and removal of naturally occurring
sand and gravel to be processed and utilized elsewhere. The materials so produced will be used
to supplement engineered materials processed at Tiller's Scandia facility substituting directly for
materials currently being hauled by trucks on State Trunk Highways 95 and 97 and traveling
directly past the facility. The substitution of material excavated at the Project for material being
transported past the Project means that the traffic from the Project would not be increased.
Accordingly,there is no basis for needing monitoring of the traffic as it is the traffic that is
present under current conditions.
Noise and Sound
The City has been asked to require that sound generated at the facility be monitored periodically.
Periodic monitoring of sounds generated is only justified rational if the source of the sounds
increases above state noise limits. The Project as it is described in the EIS and as it has been
presented to the City is the excavation of materials directly from the ground with the same
commonly used heavy construction equipment found at most earth moving operations. During
hauling events and site operations the equipment is operating ten hour construction days, four
and a half days a week.
Although there may be days when the operation is not running,the maximum ability to generate
sound is measured by the noise level of those items of equipment and vehicles. Thus once one
knows the loudest noise and its duration,the ability to exceed noise standards is well defined and
any further sound measurements simply describe lawful circuxnstances and add nothing to
regulation of the use. The EIS thoroughly measured the sound levels presented by the equipment
to be used at the Project. This measurement was analyzed by modeling sound attenuation using
accepted sound evaluation protocols and concluded that the maximum ability of the Project to
generate noise would be below state noise level standards. Accordingly,there is no benefit to the
Project or the City by periodic monitoring once the maximum sound levels have been determined
to not exceed state standards.
The City has been asked to monitor sound levels at the St. Croix River, notwithstanding that the
EIS found that noise levels produced by activities other than the Project currently generate sound
levels above what the Project produces. In addition,the City is prohibited by statute from
imposing a regulatory standard more restrictive than the state standards and has no regulatory
authority over the river. No state or federal agency charged with preserving the operation of the
river has any regulatory jurisdiction over the Project. In other words, information about sound
levels gathered will have no affect on operation of the Project.
Surface Water Monitorin¢
The City is asked to require that Tiller Corporation pay for extensive monitoring to be performed
at Zavoral Creek, Middle Creek and wetlands in the vicinity of the Project. The EIS does not
describe how the Project could impact any of those water bodies. Comments on the Project from
various sources stated the fear of an effect,but none described what that effect may be or
Mayor and City Council of Scandia
February 19,2012
Page 5
whether it was likely to occur. Absent any identified potential effect to these surface water
resources,there is not a rational basis to require the extensive monitoring that is being proposed.
Air Emissions Monitorin�
The EIS identifies two potential sources of air emissions from the Project: loading vehicles and
travel on dusty roads. The limited scope of the Project requires that vehicles be loaded directly
from material in the ground and thus does not establish stockpiles which could desiccate and
generate air emissions. The Project requires that roads be treated to avoid dust. Following these
conditions does not require extensive monitoring to determine that they have in fact been met.
The expensive air emissions monitoring regimen that the City has been asked to impose ignores
an essential element of the Project—there is no processing! The monitoring proposal is one
typically used for sand and gravel facilities where there is processing, crushing, screening,
stockpiling, sorting, etc. Without those activities there is no basis to suppori the need for the
extensive monitoring described.
Conclusion
Tiller Corporation understands and appreciates the political pressure from neighbors opposing
the Project. It is obvious that the City Council is responding to that to public opposition,
however that response is still required by law to be based rationally on the Project itself as well
as the City's regulation of the industry. This means that opponents' demands for conditions
which are not rationally based cannot lawfully be granted.
Tiller looks forward to operating the Project as a productive economic addition to the City. In
addition, Tiller is excited that this Project will enable reclamation of the Property and the Project
Site to reclaim the current barren unproductive land to be a meaningful ecological resource for
the community. This substantial improvement will have the greatest beneficial impact to
properties in the immediate vicinity of the Project.
This Project continues to provide a significant benefit to the City in the reclamation of the
Project site to a higher standard than would typically be done and to enable the reclamation to
occur within the next several years. It provides benefit to the City in the economic activity of
producing materials from the site for processing as well as reducing the need for traffic coming
into the city north of Highway 97 for at least the term of the Project. Tiller Corporation has a
benefit by being able to obtain these materials and market them to construction industry in the
vicinity of the Project and finally,those in the vicinity of the Project know that it is the most
restrictive way to accomplish the above goals.
Mayor and City Council of Scandia
February 19,2012
Page 6
Upon completion,this Project takes a significant area of barren, ecologically impaired property
and reclaims it to be once again assimilated into the riverway topography all without any public
expense.
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arki Ho Da1y& Lindgren Ltd.
Direc ial: 952-896-3292
Direct Fax: 952-842-1722
Email: ko� rstad a,larkinhoffman.com
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