6.3. SR 09-20-2004
Item 6.3.
MEMORANDUM
TO:
Mayor and City Council
FROM:
Stephen Rohlf, Building and Environmental Administrator
DATE:
September 20, 2004 sf(
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
(EA W) has been completed. The City Council made a negative declaration regarding the
need for an Environmental Impact Statement for this operation at their September 7, 2004
meeting. A zone change to the Mineral Excavation Overlay Zoning District is also required,
if mining is to be approved. The zone change for this request is an additional agenda item
for this meeting.
A request for mineral excavation by Schuer, Inc. 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. The operation is proposed to be
active for approximately 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 7m
Council Packet. Please let staff know if you need additional copies.
>- 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.
Issues:
Traffic - The gravel mined from the site is proposed to be sold to Schuer, Inc., who
is mining an adjacent site. Schuer, Ine. delivers their product to Elk River
Bituminous via easements across private property owned by Aggregate Industries.
Peat will be hauled to 225'h Ave. via an easement across property owned by Mr.
Ernest Toth. An existing drive for a Bauerly Bros. mining operation will be used to
access 225'" Avenue and then the product will proceed west to Highway 169. The
majority of the peat will be used as topsoil at the Elk River Landfill. This is an
acceptable haul route for gravel also. J & B's easement rights across the Toth
property are required to be renewed yearly. In the event the haul routes described
cease to be available, the attached CUP (Section 10) requires new routes to be
approved through the CUP process. The CUP also requires the easement through
the Toth property be in place prior to the operation commencing.
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 Monitorin" 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 (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 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 City Council is the Local Unit of Government charged with the
final decision regarding the Wetland Conservation Act (WCA). The WCA is a
separate agenda item for this meeting.
The Technical Evaluation Panel, has reviewed wetland issues for compliance with
the WCA and 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. The CUP requires that the
wetland purchase is completed prior to the operation commencing. Section 9d of
the attached CUP also requires monitoring of the wetland mitigation, which is to be
secured by a letter of credit. The grading for the wetlands 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 wetland acre.
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: the Planning Commission 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.
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 tbe CITY OF ELK RIVER, a municipal corporation organized under the
laws of tbe State of Minnesota (City), and J & B Mining, 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 tbe City on property legally described as
follows:
Soutb Half of tbe Nortbeast Quarter of tbe Nortbeast Quarter (S % of NE % of NE 1/4),
Section 10 and Nortbwest Quarter of tbe Nortbwest Quarter (NW % of NW %), Section 11,
all in Township 33, Range 26, Sherburne County, Minnesota.
(the Property); and
WHEREAS, tbe City of Ellr River Planning Commission and City
Council have held hearings on Operator's request for a conditional use permit, at which
hearings all citizens of tbe City of Ellr River and otber interested parties have had tbe
opportunity to be heard on tbe application; and
WHEREAS, tbe City Council by motion adopted September 20, 2004, approved a
conditional use permit for tbe operation of a gravel mining operation (tbe Operation) on tbe
Property, subject to certain conditions, including tbat Operator enter into a conditional use
permit agreement witb City so as to fully comply witb tbe City's Mineral Excavation,
Zoning, and otber applicable ordinances; and
WHEREAS, tbe City's Zoning Ordinance requires tbat a conditional use permit be
issued and tbat a conditional use permit agreement for mineral excavation be entered into.
NOW, THEREFORE, in consideration of tbe premises and tbe mutual promises
and conditions hereinafter contained, it is hereby agreed as follows:
1.) Entire Agreement-Except as otberwise provided herein, this Agreement
shall constitute tbe Conditional Use Permit for tbe Property and, to be executed by City and
Operator, shall govern tbe parties rights, responsibilities, and obligations witb respect to tbe
operation, subject to tbe compliance by all parties witb applicable city ordinances and state
and federal laws.
2.) Warran1;y 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 suspenslOn 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 $37,500
(renewed yearly at time of licensing). Said letter of credit shall be in
place prior to commencing 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
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. The Operation shall only commence after that portion of the
wetland mitigation covered by purchasing wetland credits is
completed.
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 measures as
determined by city staff may be required.
(10) Traffic
a. Product mined as part of the Operation shall be hauled directly to the
Schuer site or to Bauerly Bros.' existing access onto 225" Ave. via
easements and then west to US Trunk Highway 169. No traffic will
be allowed to go east on 225" Avenue. Said easement shall be in
place prior to commencing the Operation.
b. In the case that the referenced options for hauling cease to be
available, an alternative haul route shall require review and approval
by the City through the conditional use permit process. The
Operation shall cease until an acceptable alternative haul route is
approved.
(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 used
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 1s 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, 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.
1. 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) Sig,nage
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 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 enteting 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
A TIN: Building & Environmental Adm.
13065 Orono Parkway
Elk River, Minnesota 55330
If to the Operator at:
J & B Mining, Ine.
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, Inc.
By:
By:
Its:
Its: Mayor
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 J & B Mining, 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