5.3. PCSR 08-24-2004 ITEM # 5.3.
Oty Elk
River
MEMORANDUM
TO: Planning Commission
FROM: Stephen Rohif, Building and Environmental Administrator
DATE: August 24, 2004 SR
SUBJECT: Conditional Use Permit for Mineral Excavation by J & B
Mining/ P.H. CU 04-21
Request: J & B Mining is requesting to mine 39.42 acres of a 60.23 acres site. This
operation includes periodic crushing of gravel,but not washing. Approximately 1,190,000
cubic yards of material are proposed to be mined,about 1/3 of which will be peat. J&B is
proposing to excavate 40 feet below the ground water elevation using a dragline.
The site was not included in the City of Elk River's 1994 Environmental Impact Statement
(EIS) on Mineral Excavation, but a discretionary Environmental Assessment Worksheet
(EAW) has been completed and is currently in the review process. A zone change to the
Mineral Excavation Overlay Zoning District is also required,if mining is to be approved.
A request for mineral excavation by Schuer, Inc. is also on the Planning Commission's
agenda for this meeting. Although the two requests are separate, the restoration (final
contours) of the sites and wetland mitigation do tie together. Further,gravel from the J&B
Mining site will be hauled through the Schuer site to Elk River Bituminous. The operation is
proposed to be active for approximately 10 years.
Attachments: Included with this memo is:
➢ a vicinity map;
➢ Application for Rezoning to Mineral Excavation Overlay Zoning District and
Conditional Use Permit for Mineral and Peat Excavation by J&B Mining dated May
2004;
➢ A letter dated, August 10, 2004 from the city's Environmental Consultant, Matt
Ledvina,regarding Groundwater Monitoring Plan,the proposed Environmental Spill
Plan and Storm Water Pollution Prevention Plan (SWPPP);
➢ a contour map showing the existing condition of the site and a wetland mitigation
and impact map showing the proposed restoration of the site;
➢ an Environmental Assessment Worksheet (EAW),comments received on the EAW
and staff memo;
➢ staff memorandum on Wetland Conservation Act; and
➢ a proposed Conditional Use Permit (CUP).
Issues:
Traffic - The gravel mined from the site is proposed to be delivered to the Elk
River Bituminous site via easements across private property owned by Schuer,Inc
and Aggregate Industries. Peat will be hauled via easements to an existing access
point for a Bauerly Bros. mining operation to 225`h Avenue and then west to
Highway 169. The majority of the peat will be used as topsoil at the Elk River
Landfill. Section 10 of the attached CUP has additional stipulations on traffic.
Groundwater - Mining into the groundwater raises additional concerns. Matt
Ledvina, City Environmental Consultant, addresses these concerns in his attached
letter.
Environmental Spill Plan
The petitioner's Environmental Spill Plan will be revised to address Mr. Ledvina's
issues, e.g. identifying refueling locations.
Ground Water Monitoring Plan
The Ground Water Monitoring Plan will be revised to include monitoring for pH,
temperature and conductivity as well as Diesel Range Organics. Staff does disagree
with Mr. Ledvina regarding monitoring all three wells at the site, however. Staff
recommends that only the down gradient well located in the northeast corner on the
site be monitored(MW 1). Incidents of contamination will be known. Section 17 of
the attached CUP has a condition that allows additional wells and additional testing
events, if needed.
National Pollutant Discharge Elimination System (NPDES)
The petitioner has applied to Minnesota Pollution Control Agency for a NPDES
permit for the operation. Mr. Ledvina's comments regarding rip rap and a vegetative
buffer at the outlet of the ditch on the property will be included as part of the Storm
Water Pollution Prevention Plan(SWPPP) required by the city in Section 17 of the
attached CUP.
Wetlands-The Technical Evaluation Panel,charged with reviewing wetland issues
for compliance with the Wetland Conservation Act is recommending approval of
both the wetland impacts and wetland mitigation for the operation. The TEP's
recommendation for approval included purchasing excess wetland credit from the
Schuer site. Section 9d of the attached CUP requires monitoring of the wetland
mitigation,which is to be secured by a letter of credit. A dollar figure to cover the
restoration has yet to be determined.
The proposed wetland restoration plan is based on the premise that the groundwater
level incurred is not a perch water table.If information to the contrary is discovered,
the Operation shall cease until new mining and restoration plans are submitted and
approved by the City.
Setbacks —Normal mining setbacks (50 feet from property line) are proposed on
the east and south sides of the operation. To the west, the operation ties into the
Schuer mine and no setback is proposed. On the north, mining is proposed to the
property line with this area being restored to 4 to 1 slopes. The J & B mining
property is bordered on the north by Ernie Toth's property,which is currently being
mined by Bauerly Bros. Staff is recommending approval of no setback in this
location.
Recommendation: Staff is recommending approval of this request under the conditions
contained in the attached conditional use permit. Representatives of J &B Mining are in
agreement with those conditions.
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River Case Number ZC 04-08 & CU 04-21 J&B MINING
NATURAL
RESOURCE
GROUP,
INC.
MEMO
TO:
Steve Rohlf
COMPANY:
City of Elk River
FROM:
Matthew Ledvina, P.E.
DATE:
August 10, 2004
RE:
J&B Mining — Groundwater Monitoring Plan, Storm Water Pollution Prevention Plan and
Environmental Spill Plan Review
NOTES/COMMENTS:
As requested, I have reviewed the above referenced documents for the J&B Mining Gravel Mine.
The following comments are provided in support of Conditional Use Permit (CUP) development for
the Site.
Groundwater Monitoring Plan Groundwater elevations were measured in June and July 2004. The
relatively large size (40+ acres) of the area to be mined warrants a more detailed assessment of the
near surface deposits and determination of the groundwater flow direction. Hydrogeologic cross-
sections should be developed to propose a conceptual groundwater flow model and the definition of
groundwater flow pathways. The consistency of the groundwater level data should be assessed.
The groundwater flow interpretation for the site should be assessed in relation to the regional
hydrogeology.
In the conclusion section of the Plan, it is stated: "The groundwater elevation data from MW-1, MW-2,
MW-3 and the wells on the adjacent Schmidt Gravel property are similar. The Groundwater
Monitoring Plan for the Schmidt Gravel Property identifies a southeast groundwater flow while the
J&B Mining Plan identifies an east-northeast groundwater flow. These interpretations are somewhat
in conflict and the conclusions should represent joint analysis of all groundwater level data for the two
sites.
The groundwater elevations reported for the monitoring wells are roughly 943 to 945 feet. The
elevation of the drainage ditch bottom is 940 (or lower) near the east property line. This implies that
the ditch is likely a local groundwater discharge point and groundwater flow at the site may not be in
a uniform direction. The relationship between surface water ditch and groundwater at the site must
• 0 0 0 0
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J&B Mining
Page 2
be evaluated to develop an effective monitoring system. It is understood that the majority of the
ditch will be excavated, however, the monitoring program should be developed to coincide with the
excavation phasing plan to ensure that potential groundwater (surface water) impacts that could
occur during site development are adequately evaluated.
It is suggested that a higher degree of confidence in the groundwater flow analysis be supported by
the installation of additional piezometers located along the downgradient east side of the property.
Considering the direct connection between groundwater and surface water, the monitoring plan
should include collection of surface water samples within the ditch at the location of the east property
boundary.
The monitoring schedule should identify that at least three monitoring wells on the property be initially
monitored for the listed parameters for two sampling events within a four week period to provide
baseline of data for ongoing monitoring at the site. The annual groundwater sampling should include
the sampling of two downgradient wells and one upgradient well at a minimum. This will enable
comparisons of water quality between upgradient and downgradient points at the site to assess the
significance of water quality data.
Field parameters of pH, temperature and conductivity should be reported and interpreted with the
analytic monitoring results for groundwater sampling.
Contingencies related to assessment of surface water quality should be included in the Plan due to
the location of the surface water ditch through the property. Contingency (in the event of an
environmental release) sampling in the ditch would occur near the east property boundary where
surface water flows from the Site.
The City of Elk River should be notified ASAP if water quality monitoring data indicates groundwater
impacts and the potential occurrence of an environmental release. Water quality for groundwater
sampling for the Schuer Site monitoring should be incorporated into the assessment provided with
the annual monitoring report.
Storm Water Pollution Prevention Plan The Storm Water Pollution Prevention Plan (SWPPP) has
been developed with an acceptable general outline. The SWPPP should state that surface water
runoff will drain to the surface water ditch passing through the Site. The ditch should be identified as
a major surface water discharge point for the site at the east property boundary.
The SWPPP states that predevelopment runoff rates will be maintained. A reference to the analysis
which supports this statement should be provided.
A no disturb buffer area should be established along the ditch until such time that the ditch does not
provide surface water conveyance through the site. Similarly, no disturb buffer areas should be
established around wetlands until such time they are mitigated and approved for excavation based
on the mining phasing plan. There should be no equipment traffic allowed within the buffer area.
2
J&B Mining
Page 3
The SWPPP should include the referenced NPDES discharge permit as an Appendix. In section 4.1,
the SWPPP should be modified to include provisions for removing tracked sediments from paved
roadways on a regular basis. In section 5.1, SWPPP inspection should be conducted on a monthly
(required by NPDES permit) basis during active operations. The Site map should identify "National
Wetland Inventory" data on it showing all information within a one-mile radius of the Site. The
SWPPP should identify if Site drainage enters "waters of the State". If so, the locations should be
identified on Site maps.
The Plan should identify the placement of rip-rap in the ditch near the east property boundary as an
erosion control BMP. It is possible that surface water flow from the site will be increased with the
removal of vegetation over a majority of the site.
A phasing and restoration plan should be provided with the SWPPP to facilitate the implementation of
BMPs, which includes revegetation of parts of the site. The SWPPP should identify the ongoing
inspection of the surface water ditch as it exits the site on the east property boundary.
Environmental Spill Plan The Plan has been developed with an acceptable general outline. The
Plan should state that there will be no maintenance of the equipment on the site. The Plan should
identify the contents and capacity of the spill kit that is provided with the refueling vehicle.
A specific refueling location(s) should be identified in the Plan in an area(s) where spill response can
be effectively implemented. The refueling location(s) would ideally be an area(s) with a relatively
impermeable surface, closed contours and minimal slope.
Q:W-0\CE R\2004-511\correspondenceU 8B_MiningReview.doc
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yof MEMORANDUM
ElkTO: Planning Commission
River FROM: Stephen Rohlf, Building and
13065 Orono Parkway Environmental Administrator
Elk River,MN 55330
DATE: August 24, 2004 4
SUBJECT: Environmental Assessment Worksheet
for J & B Mining
Included in your packet is a copy of the Environmental Assessment Worksheet (EAW)
for the J & B Mining request. The purpose of the EAW is to describe the project and
gather information to identify any potential environmental effects. The City Council for
the City of Elk River is the Responsible Governmental Unit(RGU) charged with
determining from the information gathered through the EAW process, whether or not this
project has significant potential to cause irreversible environmental effects. If the
Council feels there is a significant potential to cause irreversible environmental effects,
they shall order an Environmental Impact Statement (EIS) be prepared for the project.
The Planning Commission does not need to act on this issue. Staff has provided the
EAW to the Planning Commission so that they have the benefit of all the information
gathered regarding the request by J & B Mining. Pertinent information gather by the
EAW includes such items as comments receive by other governmental entities and staff s
responses to those comments.
RESPONSE TO COMMENTS
Minnesota Pollution Control Agency (MPCA) —letter from James Sullivan, dated
August 17, 2004.
Comment—Project potentially needs a permit from the Minnesota Department of Natural
Resources (DNR) for mining peat.
Response—City staff contacted Julie Jordan, Mineland Reclamation Specialist for the
DNR, regarding this issue. Ms. Jordan indicated that a separate permit from the DNR is
not required for peat mining projects of less than 40 acres. The total area proposed to be
mined by J & B Mining is 39.42 acres, of which a good portion is gravel mining.
Therefore, a permit from the DNR is not required for the mining of peat. However, the
peat mining portion of this request is subject to regulation under the Wetland
Conservation Act and requires a conditional use permit through the City of Elk River.
Phone: 763.635.1000
Fax:763.635.1090
www.ci.elk-river.mn.us
Comment—The EAW references periodic washing of gravel associated with the project,
but does not identify the source of the wash water or the treatment and disposal of
wastewater.
Response—Washing of gravel has been eliminated from the project since the EAW was
prepared, therefore these comments are no longer relevant.
Comment—Former Judicial Ditch#1 is referenced in the EAW, but its location is not
delineated.
Response—Although Judicial Ditch# 1 has been formerly abandoned, it will be used as
an outlet for run-off from the site. Abandoned Judicial Ditch#1's branches ultimately
discharge to the Trott Brook. Because the elevations of the inlet and outlet of the ditch
on the subject property will remain unchanged, post-restoration run-off rates are
anticipated to be similar to predevelopment run-off rates. The outlet will be protected
from erosion with rip rap, silt fence and a vegetative buffer to remove nutrients. To
ensure consistency with the Wetland Conservation Act, the Technical Evaluation Panel
for the City of Elk River has looked at this issue in detail.
Comment—Whether or not temporary or portable storage tanks will be used to store fuel.
Response—There will be no temporary or portable storage tanks for the storage of fuels.
The petitioner will be using refueling trucks at designated locations on the site for
refueling vehicles.
Comment - Would like to see the "Potential to Emit" calculations to see if the project has
the potential to significantly impact air quality.
Response—City Staff has informed the petitioner that "Potential to Emit" calculations are
required for the project. If a MPCA Air Quality Permit is required, the city will copied.
Minnesota Department of Natural Resources (DNR)—letter from Kathleen Wallace,
dated August 18, 2004.
Comment— Waterfowl habitat and a fishing pond are problematic and shallower slopes
will allow for better vegetation establishment, less erosion and better water quality.
Response—All of the issues raised in this letter have been reviewed by the City of Elk
River's Technical Evaluation Panel, which includes a DNR Fisheries Biologist.
Adjustments to wetland mitigation plan for the project have been made in an attempt to
address these concerns.
Minnesota Department of Transportation (MnDOT)— letter from Claudia Dumont,
dated August 9, 2004.
Comment— MnDOT is ok with the access to US Trunk Highway 169 via 225th Avenue
proposed by the petitioner.
Response —The city appreciates MnDOT's review of this issue.
RECOMMENDATION
Staff feels that the EAW accurately describes the project and the potential environmental
effects. Mitigation measures to reduce the environmental effects have been identified by
the EAW and will be incorporated into the plans for the project.
Staff is recommending a negative declaration on the need for an EIS for the J & B Mining
request.
•
x ,emu Minnesota Pollution Control Agency
■ ••-
August 17, 2004
Mr. Stephen Rohlf
Building and Environmenta3 Administrator
13065 Orono Parkway
Elk River, MN 55330
RE: Minnesota Pollution Control Agency(MPCA) Comments on the J & B Mining project
Environmental Assessment Worksheet(EAW)
Dear Mr. Rohlf:
The EAW for the proposed J & B Mining project (Project) has been reviewed by the MPCA staff. This
comment letter addresses matters of concern to MPCA staff reviewing the EAW and is submitted for
consideration by the city of Elk River(City), the responsible governmental unit, in deciding whether an
Environmental Impact Statement(EIS)should be prepared on the Project. It does not constitute approval
by the MPCA of any or all elements of the Project for the purpose of pending or future permit action(s) by
the MPCA. We have attempted to identify and consult with interested program staff to identify the
MPCA permits that may be required. Additional comments or requests for information maybe submitted
in the future to address specific issues related to the development of such permit(s). Ultimately, it is the
responsibility of the Project proposer to secure any required permits and to comply with any requisite
permit conditions. The following comments are made for your use in revising the draft EAW.
The abstract of the proposed Project found in §6.a. indicates that approximately 1,190,000 cubic yards of
material will be mined from the Project area. There is no specific mention of the predicted or expected
peat yields from this Project. The amount of peat may be an important factor as certain peat operations
(depending on size and/or environmental impact potential) may require a permit from the Minnesota
Department of Natural Resources. The MPCA is providing you with a copy of the Peat Operations and
Environmental Protection(December 1996) as you proceed with the environmental review process.
In §6.a. of the EAW, it is stated that "...the proposed operation does include gravel washing on a periodic
basis" yet there is no specific discussion of two major issues related to gravel washing, namely: 1)the
source of the wash water; and, 2)the treatment and disposal of wastewater(Please refer to §18 of the
EAW regarding wastewaters.). This information must be included in the EAW to better assess the
potential environmental impacts of the Project. Additionally, this information would be useful to the
MPCA during the permitting process.
The former Judicial Ditch Number 1 is discussed in §9. of the EAW, however,the flowpath for this land
feature is not delineated on any of the diagrams or figures provided as attachments to the document. It
would be helpful to know where the flow from the former Judicial Ditch Number 1 is directed and
discharged.
520 Lafayette Rd. N.; Saint Paul, MN 55155-4194; (651)296-6300 (Voice); (651)282-5332 (TTY); www.pca.state.mn.us
St. Paul•Brainerd•Detroit Lakes •Duluth•Mankato•Marshall • Rochester•Willmar
Equal Opportunity Employer•Printed on recycled paper containing at least 20 percent fibers from paper recycled by consumers.
001 b1it4Ne
4 . �' Minnesota Department of Natural Resources
i
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n 1200 Warner Road
or yATox St. Paul, Minnesota 55106
651 772 7900
August 18, 2004
Mr. Stephen Rohlf
City of Elk River
2040 Highway 12 East
Willmar, Minnesota 56201
RE: J & B Mining Environmental Assessment Worksheet (EAW)
Dear Mr. DeWolf:
The Minnesota Department of Natural Resources has reviewed the EAW prepared for the proposed J & B
Mining project in the City of Elk River. The EAW appears to be complete, with cumulative impacts
adequately addressed. We offer the following additional comments for your consideration.
Description(Item 6b).
The proposed outcome of the project after reclamation, i.e., "waterfowl habitat and a fishing pond" is
problematic. High quality waterfowl habitat rarely provides fishing opportunities, and vice versa. Based
on the depth of the proposed water body, it would be more appropriate to focus efforts on creating higher
quality fisheries habitat. In addition, slopes in the vicinity of 5-25% do not allow for much wetland
vegetation or aquatic plant beds to develop to buffer the open water. Shallower slopes will allow for
better vegetation establishment and less erosion, thus ultimately better water quality.
Physical Impacts on Water Resources (Item 12).
We will address wetland sequencing and mitigation through the Wetland Conservation Act and Technical
Evaluation Panel processes. However, it should be noted that deep water habitats cannot be considered
for wetland mitigation, and that wetland replacement must be accomplished in advance of, or concurrent
with, the losses.
Thank you for the opportunity to review this project and the EAW. We look forward to receiving your
record of decision and responses to comments at the conclusion of environmental review. Minnesota
Rules part 4410.1700, subparts 4 and 5, require you to send us your Record of Decision within five days
of deciding on this action.
An Equal Opportunity Employer Who Values Diversity
DNR Information: 651-296-6157 1-888-646-6367 TTY: 651-296-5484 1-800-657-3929
If you have any questions about this project, please contact staff ecologist Michael North at 218-828-2433.
Sincerely,
Kathleen A. Wallace
Regional Director
Cc: Wayne Barstad
Fred Bengtson
Steve Colvin
Paul Diedrich
Patty Fowler
Dale Homuth
Jon Larsen (EQB)
Michael North
Nick Rowse (FWS)
An Equal Opportunity Employer Who Values Diversity
DNR Information:651-296-6157 1-888-646-6367 TTY: 651-296-5484 1-800-657-3929
ooksEsot, Minnesota Department of Transportation
Transportation District 3
3725 12th Street North "''' , Office Tel: 320/654-5134
Fir Nye St. Cloud, MN 56303-2130 ` Fax: 320/203-6089
OF TFO
August 9, 2004
Mr. Stephen Rohlf
Building and Environmental Administrator
City of Elk River
13065 Orono Parkway
Elk River, MN 55330
Re: J & B Mining EAW / Jason Bebeau
City of Elk River
Dear Mr. Rohlf:
The Minnesota Department of Transportation has reviewed the Environmental
Assessment Worksheet (EAW) for J & B Mining for impacts to Trunk Highway
169.
Page 17 of the EAW states that access will occur "via the 225th Avenue
Interchange". Just to clarify—this access point is an at-grade intersection, not a
grade separated interchange. This intersection already has a cross-over, turn
lanes and lighting, and should be sufficient for the proposed use.
Thank you for the opportunity to comment on this EAW. Please feel free to
contact me at (320) 654-5134 with any questions you may have.
Sincerely,
etiabtiteol
Claudia Dumont
Senior Transportation Planner
Cc: Mark Renn -- Mn/DOT St. Cloud
An equal opportunity employer
y of Memorandum
TO: Planning Commission
River
FROM: Rebecca Haug,Environmental Tech.
13065 Orono Parkway
Elk River,MN 55330 DATE: August 24, 2004
SUBJECT: Wetland Conservation Act Decision—J&
B Mining - WCA 04-08
Proposal—J & B Mining to impact 85,294 square feet of Type 2 wetland all in one
locations to accommodate the excavation of peat and gravel. A map showing the
proposed wetland impact and replacement is attached to the Planning Commission's
memo on the Conditional Use Permit for this same request.
The Elk River City Council is the Local Unit of Government charged with decision-
making authority for the Wetland Conservation Act (WCA). The wetland information
was provided to the Planning Commission so they have all relative information that may
affect this project.
Schuer, Inc. is proposing to expand a gravel mining operation adjacent to the J & B
Mining site. That proposal also has wetland impacts. The wetland restoration for the
project ties into the mitigation for the J & B Mining project. Wetland restoration can't be
deemed complete for either project until both are finished. Further, J & B Mining is
purchasing some of the excess wetland credits from the Schuer site.
FINDINGS
Liesch Companies prepared a Wetland Delineation Report for the property dated, May
17, 2004.
Combined notification of the proposed wetland impact and replacement plan was mailed
out to the appropriate governmental agencies on July 1, 2004.
The Technical Evaluation Panel (TEP) reviewed the delineation and replacement plan
July 8, 2004. The minutes of that meeting are attached.
The comment period on this issue ended on July 21, 2004. The appeal period for this
issue is 15 working days after the Council's decision.
Phone:763.635.1000
Fax:763.635.1090
www.ci.elk-rivecmn.us
RECOMMENDATION
Staff recommends approval of the filling and mitigation plan for this project with
the following stipulations:
1. A restrictive covenant and drainage and utility easement be recorded over the
mitigation and buffer areas.
2. The petitioner secures letter of credit in favor of the City of Elk River,which
covers the cost of the mitigation work.
3. Monitoring of the wetland mitigation will commence as soon as restoration is
completed on both this site and the Schuer, Inc. site and continue for a period of
3 to 5 years, as needed, as determined by city staff. The petitioner shall submit a
written monitoring report on the replacement wetlands to the city after the first
year of monitoring. Upon approval of this report by city staff the letter of
wetland credit may be released.
4. Proof of purchasing wetland credits from Schuer, Inc shall be provided to the
City.
TEP Minutes — July 8, 2004
Attending: Brad Wozney, BWSR; Paul Diedrich, DNR-Fisheries; Terry Mauer,
City Engineer; Roger Schmidt & Glen Johnson, Schmidt Gravel Mine; Warren
Tuel, Liesch Assoc, Inc; Wayne Jacobson, Applied Environmental Services;
Rebecca Haug, City of Elk River
J & B Mining
The setbacks for the site were reduced which allowed for less wetland impacts
bringing the total to below 2 acres. This is important when it comes to getting a
permit from the Corp. The project does not need to go through the banking
process since the mitigation will be on-site. Excess credits will be on the Schuer
site however, the applicant is not proposing to bank them, only use them as
enhancement. The upland buffer will be at least 25 ft. The proposed type 2
wetland replacement for credit on the east side of the property will not be used.
More credits will be bought from the Schuer property for this. Along the western
upland buffer area, an opportunity is available for more buffer following the edge
of the transformed type 2 wetland.
It was discussed that reed canary grass should not be wasted back into the pond
since the seeds will remain and the wetland could become inundated with reed
canary grass and also if the pond is to be used for fish habitat, the spoils would
cause the water to be cloudy and not desirable to fish.
The topic of using phosphorus for fertilizer was discussed since the city has
ordinance restricting phosphorus in fertilizer unless it is used for establishment
on new lawn or if soil tests state that it is needed. Since natives will be planted in
the area, phosphorus should not be needed. The method of seeding was also
discussed and it was determined that harrowing is not required since the seed
will be packed.
CITY OF ELK RIVER
AGREEMENT FOR ISSUANCE OF
CONDITIONAL USE PERMIT
FOR MINERAL EXCAVATION
THIS AGREEMENT, made and entered into this day of , 2004,
by and between the CITY OF ELK RIVER, a municipal corporation organized under the
laws of the State of Minnesota (City), and J & B Mining????????, a Minnesota corporation,
hereinafter referred to as (Operator);
WITNESSETH:
WHEREAS, Operator has made application to City for approval of a conditional use
permit to operate a gravel mining operation within the City on property legally described as
follows:
South Half of the Northeast Quarter of the Northeast Quarter (S '/z of NE 1/4 of NE 1/4),
Section 10 and Northwest Quarter of the Northwest Quarter (NW 1/4 of NW 1/4), Section 11,
all in Township 33, Range 26, Sherburne County, Minnesota.
(the Property); and
WHEREAS., the City of Elk River Planning Commission and City
Council have held hearings on Operator's request for a conditional use permit, at which
hearings all citizens of the City of Elk River and other interested parties have had the
opportunity to be heard on the application; and
WHEREAS, the City Council by motion adopted September 7, 2004, approved a
conditional use permit for the operation of a gravel mining operation (the Operation) on the
Property, subject to certain conditions, including that Operator enter into a conditional use
permit agreement with City so as to fully comply with the City's Mineral Excavation,
Zoning, and other applicable ordinances; and
WHEREAS,, the City's Zoning Ordinance requires that a conditional use permit be
issued and that a conditional use permit agreement for mineral excavation be entered into.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and conditions hereinafter contained,it is hereby agreed as follows:
1.) Entire Agreement- Except as otherwise provided herein, this Agreement
shall constitute the Conditional Use Permit for the Property and, to be executed by City and
Operator, shall govern the parties rights, responsibilities, and obligations with respect to the
operation, subject to the compliance by all parties with applicable city ordinances and state
and federal laws.
2.) Warranty of Operator- Operator hereby warrants and represents to the City,
as inducement to the City's entering into this agreement, that the Operator is the fee owner
of the subject property or has a valid lease for the operation and the fee owner of the subject
property shall also enter into this agreement.
3.) Conditions-The following general conditions shall apply to the Operation:
(01) This Conditional Use Permit authorizes mineral excavation (gravel) from the
Property.
(02) All mineral excavation and processing operations on the property shall
comply with the City's Mineral Excavation, Zoning and other applicable
ordinances; with the terms of this Conditional Use Permit agreement and the
license agreement to be executed by the City and Operator; with the City of
Elk River's Environmental Impact Statement on Mineral Excavation; and
with the application materials and plans submitted by the Operator, which
plans and materials are the basis for the City's approval of the Conditional
Use Permit.
(03) The Operator shall orally notify the City of any violations of this permit
within 24 hours and follow this with notification in writing within four (4)
working days of the violation. The Operator shall notify the City annually in
writing of the total area and amount of material mined and projected
estimates of area and amount of material to be mined in the following year.
This is to be done at time of license renewal.
(04) The license shall be renewed annually and shall run from June 1" through
May 31". The annual license fee is that which is specified by the Elk River
City Council at time of renewal. This license fee is not in lieu of gravel tax
collected by the County, a portion of which the City receives.
(05) Violations of this Conditional Use Permit may result in suspension or
revocation.
(06) The City Building and Environmental Administrator and/or his/her agents
shall be permitted to inspect the Operation for compliance with the
conditions of this permit during normal hours of operation.
(07) The City's approval of this Conditional Use Permit is subject to the approval
of appropriate permits by other governmental agencies.
(08) No explosives shall be allowed for this operation.
(09) Reclamation
a. Reclamation shall be implemented on an annual basis pursuant to the
reclamation plans submitted by the Operator.
b. Each year a plan for that year's reclamation shall be approved by the
Building and Environmental Administrator prior to issuance of the
mineral excavation license.
c. Upland reclamation shall include topsoil from the site being
preserved and put back into place after mining and seeded as per the
approved plans. The vegetation established for the reclamation must
be maintained until it is self-sufficient.
d. Wetland restoration shall be in compliance with the approved
wetland mitigation plan. The Operator shall provide a letter of credit
in favor of the City for wetland restoration in the amount of$ . A
formal wetland monitoring plan shall be submitted for City approval
one year after wetland restoration has been completed on the
Property and the Schuer, Inc. site. The wetland letter of credit may
be released upon approval of the first year monitoring report, but
monitoring shall continue for an additional 2 to 4 years after, as
determined by city staff.
e. Contours, finished grades, details of erosion control methods, and
settling ponds, shall comply with the plans submitted and the City
ordinance at the time of reclamation. Additional measure as
determined by city staff may be required.
(10) Traffic
a. Gravel mined as part of the Operation shall be hauled directly to the
Elk River Bituminous site via easements, not accessing any public
road. Peat mined as part of this Operation will be hauled to Bauerly
Bros.' existing access onto 225t Ave. via easements and then west to
US Trunk Highway 169. No traffic will be allowed to go east on
225th Avenue.
b. The sale of product from the Operation shall only take place from
the Elk River Bituminous site and then only after receiving
authorization from the Minnesota Department of Transportation and
completing all required improvements to the access for that site prior
to commencing said sales.
(11) Dust Control
a. A permit from MPCA regarding air emissions shall be obtained when
required and particulate emission standards shall be met by the
Operation. This permit and all other correspondence between the
Operator and MPCA shall be copied to the City.
b. All equipment shall be located as to reduce dust to adjacent
properties.
c. A water truck shall be on site at all times when mining activities are
taking place to control dust as necessary. Chemicals shall not be use
for dust control.
d. The City reserves the right to require additional measures to be taken,
if warranted by dust problems, including but not limited to reducing
stock pile heights.
(12) Hours of Operation
All mineral excavation, processing, and sales activities shall be conducted
between the normal hours of 7:00 a.m. to 7:00 p.m., Monday through
Saturday, except the hours may be extended by the Building and
Environmental Administrator for special cases.
(13) Noise
a. As deemed necessary by city staff, noise from screening and crushing
associated with this Operation shall be controlled by equipment
location on site, the erection of sound barriers, the placement of
stockpiles, and the type of equipment used.
b. Noise levels associated with this Operation shall at no time exceed
State standards.
c. The City reserves the right to require additional measures be taken,if
warranted by noise.
(14) Lighting
Lighting from the Operation shall be directed away from adjacent residential
property. Glare, whether directed or reflected as different from general
illumination, shall not be visible beyond the limits of the immediate site. All
sources of artificial light shall be so fixed, directed, designed, or sized that the
minimum subtotal of their illumination shall not increase the level of the
illumination on nearby residential property by more than .1 foot candles in or
within twenty-five (25) feet of a dwelling, or more than .5 foot candles on
any part of the adjacent property.
(15) Debris
The piling, storing, or keeping of old machinery, junk, debris, or abandoned
motor vehicles, shall be prohibited on this site, with the exception that
reusable parts may be stored on the mineral excavation site provided that it is
in a location that cannot be viewed from adjacent properties or is totally
screened.
(16) Vibration
Mining activities shall not cause excessive vibration off site. If excessive
vibration becomes an issue, the City reserves the right to take appropriate
measures to alleviate the problem.
(17) Groundwater Protection Measures
a. The Operator shall file with the City an Environmental Spill Plan and
a Storm Water Pollution Prevention Plan. The Operator shall adhere
to these plans in the event there is a spill.
b. The Operator shall provide the Fire Department with a copy of their
flammable or hazardous materials.
c. Refueling shall take place only at designated locations.
d. All incidences that have the potential to adversely affect groundwater,
including but not limited to spills, shall be verbally reported to the
City within 24 hours. This verbal notification shall be followed up in
writing within four (4) working days.
e. The appropriate storm water permits (NPDES) shall be obtained by
the Operator from MPCA and copied to the City.
f. Prior to commencing mining, the monitoring well located at the site
shall be monitored for diesel range organics (DRO), pH, temperature
and conductivity to establish baseline data. The reference parameters
shall be monitored a minimum of once each mining season
thereafter. In the event of a spill, the City may require additional
testing events, parameters and monitoring wells, as well as the
cessation of operations until the spill is deemed clean by the City.
g. Gravel washing operations are prohibited at this site and will require
an amendment to this permit to be allowed in the future.
h. Except for minor repairs, maintenance of vehicles and equipment
shall take place in the shop at the Elk River Bituminous site. The
Operator shall have an approved hazardous waste license for this
facility and properly dispose of all waste.
i. Rip Rap and a vegetative buffer to remove nutrients shall be
established on the outlet end of the ditch on the site.
j. The Operator shall provide the City updated groundwater data as it
• becomes available.
k. The proposed wetland restoration plan is based on the premise that
the groundwater level incurred is not a perch water table. If
information to the contrary is discovered, the Operation shall cease
until new mining and restoration plans are submitted and approved
by the City.
(18) Signage
Signage for the operation shall be that which is permitted for an industrial
operation in a medium industrial zone, with the exception that billboards are
not allowed.
(19) Fencing
All cut faces with slopes greater than 3 to 1 shall be fenced on the high sides
to provide a clear warning of the potential danger until properly sloped.
(20) Oakwilt
Cutting of trees between April 15 and July 15 is prohibited. The Operator
shall take other measures deemed appropriate by the Sherburne County
Forester to control oakwilt, such as, but not limited to: debarking or
destroying fallen diseased trees prior to April 156, not leaving roots exposed
and avoiding mechanical damage on remaining trees.
(21) Blanding's Turtles
Department of Natural Resources flyers with an illustration of a Blanding's
Turtle shall be distributed to all site workers. If observed, turtles in
imminent danger shall be removed to a safe location and turtles not in danger
shall be left undisturbed. All construction areas shall be surrounded by silt
fence to keep turtles from entering and no wetlands shall be altered as a
result of the work authorized in this permit.
(22) Other Permits
The Operator shall obtain all state and federal permits appropriate to their
operation and file copies of said permits with the City.
4.) General Provisions-
(01) Permits- Operator agrees to comply with all of the provisions hereof and
agrees to save and hold the City harmless from any and all claims or actions arising
from the operations of the Operator on the Property.
(02) Binding Effect- The terms and provisions hereof shall be binding upon, and
inure to the benefit of the heirs, representatives, successors, and assigns of the
parties hereto and shall be binding upon all future owners of all or any part of the
Operation and shall be deemed covenants running with the land. This Agreement
shall be placed of record so as to give notice hereof to subsequent purchasers and
encumbrances of all or any part of the Property, and all recording fees, if any, shall
be paid by the Operator.
(03) Severable- In the event that any portion of this Agreement shall be held
invalid for any reason, the same shall not affect in any respect whatsoever the validity
of the remainder of this Agreement.
(04) Waiver- Any waiver, whether express or implied, by any party of a breach of
any provision of this Agreement will not operate as or be construed to be a waiver of
any subsequent breach of this Agreement.
(05) Notices- All notices and demands specified herein shall be deemed
appropriately and timely given when delivered personally or deposited in the United
States mail to the addresses hereinafter set forth by certified mail (return receipt
requested). The addresses of the parties hereto are as follows until changed by
written notice given as above:
If to the City at: City of Elk River
ATTN: Building& Environmental Adm.
13065 Orono Parkway
Elk River, Minnesota 55330
If to the Operator at: J & B Mining
ATTN:Jason Bebeau
21310 Brook Road NE
Elk River, Minnesota 55330
(06) Incorporation by Reference- All plans, special provisions, proposals and
specifications, submitted pursuant to this Agreement shall be and hereby are made a
part of this Agreement by reference as fully as if set forth herein in full.
IN WITNESS WHEREOF, the City and Operator have caused this Agreement to
be duly executed on the day and year first above written.
CITY OF ELK RIVER OPERATOR/FEE OWNER:
J & B Mining
By: By:
Its: Mayor Its:
By:
Its: City Clerk
STATE OF MINNESOTA
ss.
COUNTY OF SHERBURNE
The foregoing instrument was acknowledged before me this day of
, 2004, by Stephanie A. HIinzing, the Mayor of THE CITY OF
ELK RIVER, a Minnesota municipal corporation, on behalf of the corporation.
Notary Public
STATE OF MINNESOTA
ss.
COUNTY OF SHERBURNE
The foregoing instrument was acknowledged before me this day of
, 2004, by Joan Schmidt, City Clerk of THE CITY OF ELK
RIVER, a Minnesota municipal corporation, on behalf of the corporation.
Notary Public
STATE OF MINNESOTTA
ss.
COUNTY OF
The foregoing instrument was acknowledged before me this day of
, 2004, by , the
of J & B Mining, ?????????a Minnesota corporation, on behalf
of the corporation, fee owner of a portion of the subject property and Operator on
the subject property.
Notary Public
This instrument was drafted by: City of Elk River
Building and Environmental Dept.
13065 Orono Parkway
Elk River, MN 55330