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6.2. SR 09-20-2004 Item 6.2. MEMORANDUM TO: FROM: Mayor and City Council Rebecca Haug, Environmental Technician1.1t DATE: September 20, 2004 SUBJECT: Conditional Use Permit for Mineral Excavation by Schuer, Inc. Inc,JP.H. CU 04-23 Request: Schuer, Inc. has an existing mining permit that allows them to mine 14.81 acres of a 66.06 acres site. They are requesting approval to mine an additional 5.5 acres of the same site. This operation includes periodic crushing of gravel, but not washing. The additional 5.5 acres are proposed to be excavated 15 feet below the ground water elevation using a dragline. The site will not be dewatered to accomplish this. 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 (EA W) was completed for the original request. Additional environmental review is not required. All of the 66.06 acres site is already zoned Mineral Excavation Overlay Zoning District. A request for mineral excavation by J & B Mining is also on the Council'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. To keep this haul route open, Phase 4 of the Schuer site (the current 5.5 acre request) will is not be mined or restored for 5 to 10 years. Attachments: Included with this memo is a revised Conditional Use Permit (CUP). Below is a list of other information on this issue that was supplied in the September 7"' Council Packet. Please let staff know if you need additional copies. ~ a vicinity map, ~ a Conditional Use Permit Application Submittal letter, dated March 29, 2004, ~ A letter dated, July 28, 2004 from the city's Environmental Consultant, Matt Ledvina, regarding groundwater monitoring and the proposed environmental spill plan, ~ a development plan, which shows the proposed final contours for the additional acreage. Issues: Traffic - The gravel mined from the site is currendy delivered to the Elk River Bituminous site via an easement across private property owned by Aggregate Industries. Traffic from the new area (phase 4) will be accommodated the same way. 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 southeast corner on the site be monitored (MWl). 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 Eillnination System (NPDES) The existing NPDES permit for the operation that has been revised and approved by the Minnesota Pollution Control Agency, which includes an updated Storm Water Pollution Prevention Plan (SWPPP) that reflects the proposed Phase 4 mining area. Wetlands - The Technical Evaluation Panel, charged with reviewing wedand issues for compliance with the Wedand Conservation Act (WCA) is recommending approval of both the wedand impacts and wedand mitigation for the operation. Section 9d of the attached CUP requires monitoring of the wedand mitigation, which is to be secured by a letter of credit. The grading for the wedands will be covered through the CUP for the mining, so the letter of credit will only need to cover the other aspects of reclamation such as seeding. Staff recommends the letter of credit be based on $2,500 per wedand acre. The proposed wedand 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 setbacks for a mining operation in the City of Elk River are 50 feet, but they can be increased if the pit is adjacent to a sensitive land use or reduced if adjacent to another mining operation. The new area proposed to be mined, Phase 4, is bordered on the north by Ernie Toth's property, which is currendy being mined by Bauerly Bros. Staff is recommending the petitioner is allowed to mine to the property line and that this area is restored to 4 to 1 slopes. It may be a long time before the Toth's property is mined or it may never be mined. Either way the 4 to 1 slopes suffice. To the south and east, Phase 4 will tie into the proposed J & B Mining operation and restoration. To the west, Phase 4 ties into Phase 1 of the Schuer operation. Recommendation: The Planning Commission is recommending approval of this request under the conditions contained in the attached conditional use pennit. Representatives of Schuer, Inc. are in agreement with those conditions. 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 Schuer, Inc., 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: The Northwest Quarter of the Northeast Quarter (NW V. of NE 1/4), the North Half of the Northeast Quarter of the Northeast Quarter (N \/2 of NE V. of NE 1/4), and the North 200 feet of the South Half of the Northeast Quarter of the Northeast Quarter (N 200 ft. of S \/2 of NE 1/4 of NE 1/4), all in Section 10, 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 20, 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 $13,750. Said letter of credit shall be in place prior to commencing Phase 4 of the Operation. A formal wetland monitoring plan shall be submitted for City approval one year after wetland restoration has been completed on the Property and the J & B Mining site. The wetland letter of credit may be released upon approval of the ftrst 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. Material mined as part of this Operation shall be hauled directly to the Elk River Bituminous site via easements, not accessing any public road. Other access from the site to Highway 169 at 219'h Avenue will be eliminated when frontage roads leading to interchanges are developed. b. All portions of drives shared by this Operation and another business or residence shall be a minimum of twenty feet wide and hard surfaced. The Operator shall provide the City with executed copies of all agreements concerning the ability to make improvements to these drives and their maintenance prior to the Operation commencmg. c. Tbe 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 particuhlte 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. Ghlre, 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 and dewatering are prohibited at this site and will require an amendment to this permit to be allowed in the future. h. Except for minor repairs, mamtenance 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. 1. Temporary sedimentation ponds, as indicated on the plans submitted, shall be constructed and maintamed until deemed to be no longer necessary by City staff. 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 15, not leaving roots exposed and avoiding mechanical damage on remaining trees. (21) Blanding's T urdes Department of Natural Resources flyers with an illustration of a Blanding's Turde shall be distributed to all site workers. If observed, turdes in imminent danger shall be removed to a safe location and turdes not in danger shall be left undisturbed. All construction areas shall be surrounded by silt fence to keep turdes from entering and no wedands 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 f1le 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: Schuer. Inc. Elk River Bituminous AITN: GlennJohnson 1200 - 29'h Ave. NE Sauk Rapids, Minnesota 56379 (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: Schuer, Inc. By: Its: Mayor By: 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. Klinzing, 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 MINNESOTA ss. COUNTY OF The foregoing instrument was acknowledged before me this _ day of ,2004, by , the of Schuer. Inc., 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