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7.1. SR 04-17-1995ITEM 7.1. of River Background MEMORANDUM TO: Mayor and City Council FROM: Stephen Rohlf, Building and Zoning Administrator DATE: April 13, 1995 SUBJECT: Conditional Use Permit Request by Northern Con-Agg -Public Hearing Case No. CU 95-03 Northern Con-Agg is requesting an update of a conditional use permit for mineral excavation on an approximate 140 acre site lying west of Highway 169 and north of Co. Rd 77. The property is currently being mined under a lease to Northern Con-Agg by the owner ofthe property, Julius Nemeth. Also, included as part of Northern Con-Agg's conditional use permit is an existing shop • on a 20 acre parcel lying east of FTighway 169. Northern Con-Agg is the owner of this 20 acre parcel. Staff encourages the council to read staff's attached memo to the Planning Commission for a more in-depth analysis of this request. Attachments 1. An application for a conditional use permit by Northern Con-Agg dated March, 1995. 2. Staffs memo on this subject to the Planning Commission dated March 20, 1995. Included in that memo are findings that were adopted by the Planning Commission when they recommended approval ofNorthem Con-Agg's request. 3. A memo from Mark Olson and John Lichter of B. A. Liesh and Associates, regarding ground water monitoring, dated March 15, 1995. 4. A memo from City Engineer, Terry Maurer, dated March 20, 1995 5. A letter from Dave Schwarting, County Engineer, dated March 7, 1995 6. A formal conditional use permit for the request outlining the Planning Commission's recommended conditions for the operation. Change ofOwnershi~ Since Northern Con-Agg made application for a conditional use permit and the Planning Commission reviewed their request in March, Northern Con-Agg has transferred ownership of their holdings within the City of Elk River to the Shiely Company. Staff has n U 13065 Orono Parkway • P.O. Box 490 • Elk River, MN 55330 • (612) 441-7420 • Fax: (612) 441-7425 had representatives of the Shiely Company sign the application for this conditional use • permit. A conditional use permit runs with the property, not the operator. Therefore, the Planning Commission's review of this request should not change because of a change of operators. Furthermore, a change in operators does not nullify the public Hearing notice regazding the request. Therefore, staff sees no problem with the conditional use permit request for this operation being issued to the Shiely Company instead of Northern Con-Agg under the same conditions outlined in the attached conditional use permit. • . s:b&~l~.evr/nMhcm ITElS S.I. MEMORANDUM `J[]f+ TO. PLANNING COMMISSION c~©Q~ FROM: STEPHEN ROHLF, BUILDING AND ZONING ADMINISTRATOR DATE: MARCH 20, 1995 SUBJECT: CONDITIONAL USE PERMIT REQUEST BY NORTHERN CON-AGG/ PUBLIC HEARING CASE NO. CU 95-04 ISSUEBACKGROUND Northern Con-Agg is requesting an update of a conditional use permit for mineral excavation and processing on an approximately 140 acre site. The shop associated with this operation is on a separate 20 acre parcel, but is included as part of this conditional use permit. No mining operations on the 20 acre shop parcel are proposed as part of this current request. • The 140 acre site on which mining activities are proposed, is owned by Mr. Julius Nemeth and is being leased by Northern Con-Agg. Mr. Nemeth has co-signed the conditional use permit application. The 20 acre shop site is owned by Northern Con-Agg. Both the shop site and the proposed mineral excavation site were re-zoned to "Mineral Excavation Overlay" during a recent City initiated zone change. The 140 acre mineral excavation site is currently being mined by Northern Con-Agg. They are updating their conditional use permit as agreed to through the Environmental Impact Statement process recently finalized by the City. Mining activities on this site are proposed to continue for approximately 15 to 20 years. Elk River Bituminous is also currently conducting mining operations in the southeast corner of Mr. NNemeth's property. Elk River Bituminous' conditional use permit is current. LOCATION The parcel proposed to be mined lies directly north of 213th Avenue (County Road 77) and west of Highway 169. The shop site lies east of Highway 169. Figures 1-6 in the attached application by Northern Con-Agg show the 13065 Orono Parkway • P.O. Box 490 • Elk River, MN 55330 • (612) 441-7420 • Fax: (612) 441-7425 Page 2 location of the two sites. Legal descriptions for the sites are also contained in • that application. ATTACHMENTS 1. An application provided by Northern Con-Agg, Inc. dated March, 1995. 2. A memo from Mark Olson and John Lichter of B.A. Liesch and Associates, regarding groundwater monitoring, dated March 15,1995. 3. A memo from City Engineer, Terry Maurer, dated March 20, 1995. 4. A letter from Dave Schwarting, County Engineer, dated March 7, 1995. ANALYSIS As previously stated, the gravel mine in question is an existing operation, therefore, it is somewhat easier to analyze what issues should be of concern because there is a history for the operation. The other major item which makes analyzing the issues easier is the City's Environmental Impact Statement on gravel mining. Northern Con-Agg's request appears consistent • with that document. That Environmental Impact Statement also satisfies the State required environmental review process for this operation. Further, staff met with the residents adjacent to Northern Con-Agg's operation on January 25, 1995, to hear their concerns. RECLAMATION Sheet 3 of 3, included in the application by Northern Con-Agg (the last page of the application) shows the proposed contours of the final reclamation for this property. The contours proposed are consistent with those roughly identified in the City's Environmental Impact Statement. Run-off from the project is directed inward to a proposed ponding area, which the City would encourage. The end uses identified by Northern Con-Agg, residential or agricultural, are consistent with the current agricultural zoning of the property; although the contours proposed would accommodate any future type of zoning- One inconsistency between the proposed final reclamation plan and the Environmental Impact Statement are the 4:1 slopes on the north, west, and south sides of the property. Those slopes rise from the bottom of Northern Con-Agg's site to match existing elevations of adjacent properties. On the south side, it is anticipated that in the future County Road 77 will be lowered • and on the west and north sides the adjacent properties will be mined. s:planning:pc:95-04 Page 3 The timing of these things are out of Northern Con-Agg's control, therefore, • staff feels their reclamation plan is appropriate. However, their reclamation plan is realistically an interim plan, which will change in the future. Whoever proposes that future change, will need to do so through the conditional use process. As indicated in their application, Northern Con-Agg is proposing to reuse stockpiled topsoil to establish ground cover for reclamation. That ground cover must be Northern Con-Agg's responsibility to maintain until it is self sufficient. As part of each yearly license, staff will determine how much reclamation is possible and feasible to occur in the forthcoming year. Staff is recommending that Northern Con-Agg provided a $5,000 dollar letter of credit in favor of the City to ensure yearly reclamation. The actual area proposed to be mined is not currently blessed with a significant amount of trees. Northern Con-Agg indicated in their application that they wilt start a nursery for tree seedlings to be used in the future development of the site. They did not indicate how many trees they anticipate planting. • TRAFFIC The access to the site is via Highway 169. There is an existing acceleration lane and de-acceleration lane on the Highway that adequately accommodates Northern Con-Agg's truck traffic. No further traffic improvements will be needed to accommodate this operation. Staff is recommending that truck traffic from the site is prohibited from using local streets, other than Highways 169 and 10, with the exception of localized jobs. As indicated in his attached letter, Dave Schwarting, County Engineer, feels that Northern Con _Agg's operation will not adversely impact the County road in this vicinity. Lastly, Mr. 142aurer indicates in his attached letter that with the 50 foot setback from the right-of--way of County Road 77 to the slopes proposed, guardrails will not be needed along that road. DUST CONTROL A major problem in the past from this operation has been dust. The property owner immediately to the north of the Northern Con-Agg site, experienced intolerable dust levels on their property from this operation. Staff has spent numerous hours in trying to resolve this issue and discovered the major • source of the problem was traffic on haul roads. The simple solution was to s:planning:pc:95-04 Page 4 water the haul roads more frequently. In addition, a sand pile on the north • end of the property has been vegetated, which appears to be of further benefit. An air quality permit will be required of this operation in the future. Northern Con-Agg has made the appropriate application for that permit. NOISE/HOURS OF OPERATION Northern Con-Agg has indicated that they only wish to operate during the hours that are currently allowed by the City Ordinance, which are 7:00 a.m. to 7:00 p.m., Monday through Saturday. To further help control noise, the strategic placement of equipment will be implemented. An example of this would be having crushing and screening operations stay close to an excavated bank which will deflect the noise away from adjacent residential dwellings. Placement of stock piles will also be used. Although there are not a large number of residential dwellings in close proximity to Northern Con-Agg's operation, noise can be hard to predict and houses much farther away than anticipated can be affected. Staff will need the authority to deal with these issues, if and as they arise. SHOP • The shop associated with this request is an existing support facility for the mining activities. The shop has the appropriate MPCA hazardous waste generators license for the typical materials used. Northern Con-Agg is also currently recycling the appropriate items from this shop and properly disposing those items which cannot be recycled. Staff is recommending that any storage associated with this facility either be indoors or screened. Having a shop facility such as this for a mining operation, is to the advantage of the City. A shop allows maintenance of equipment to take place indoors on a concrete floor so that fuels and other fluids are not spilled on site. GROUNDWATER MONITORING Attached to this memo is a memorandum from B. A. Liesch and Associates dated A4arch 15, 1995, regarding ground water concerns and testing. Northern Con _9gg has indicated in their application that they anticipate the bottom of their pit to be 10 feet above ground water. However, if the materials and the market are favorable, they may excavate below the water table using a drag line or dredge. Mining in exposed ground water increases the concerns for water contamination. The conditions found later in this memo regarding the frequency of testing and other contamination • s:planning:pc:95-04 Page 5 preventative measures, staff feels adequately addresses these additional concerns. • Northern Con-Agg already has a DNR water a water permit from MPCA, has registered their above riation permit, a storm MPCA, and has an a ground fuel tanks with they will be providing an adequatedike acround their above lan. Additionally, in the summer of 1995. Lastl ~ ground fuel tanks contain a spill if and when they mine below water levelm available on site to MAINTENANCE OF SECURITY/SCREENING Northern Con-Agg is proposing to use berms and signings every 100 feet to warn the public of the inherent danger of the active area of this site. These berms are proposed to be a minimum of 4 feet in height, with higher berms being used when they are adjacent to roadways. RECOMMENDATIONS Vt~ith appropriate conditions placed on this operation, staff feels this request can meet the seven standards for approving a conditional use permit. . Therefore, we recommend approval of a conditional use permit for mineral excavation for Northern Con-Agg under the following findings and with the following conditions: Findines 1. That the conditions placed on the operation adequately protect adjacent neighborhoods and the City from detrimental affects from the operation due to excessive traffic, noise, smoke, fumes, .glare, odor, dust, or vibration. 2. That the operation will not result in a loss of natural, scenic, or historic features of major importance. 3. That the proposal is consistent with the City of Elk River's comprehensive plan, mineral excavation ordinance, zoning ordinance, and Environmental Impact Statement on mineral excavation. 4. That the conditions placed on the operation require it to comply with all appropriate City, State, and Federal requirements. C~ s:planning:pc:95~04 Page 6 Conditions 1. 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 Ell: 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: 2. The operator shall orally notify the City of any violations of this permit within 24 hours and follow this notification in writing, within 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 forthcoming year. This is to be done at the time of license renewal. 3. The license must be renewed annually and shall run from January 1st through December 31st. The annual license fee is that which is specified by City code at the time of renewal. This license fee is not in lieu of gravel tax collected by the County and a portion of which the • City receives. 4. Violations of this conditional use permit may result in suspension or revocation. 5. The City Building and Zoning 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. 6. The City's approval of this conditional use permit is subject to .the approval of appropriate permits by other governmental agencies. 7. No explosives shall be used for this operation. 8. 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 Zoning Administrator prior to issuance of the annual mineral excavation license. s:planning:pc:95-09 Page 7 c. A $5,000 dollar letter of credit, bond, or deposit, approved by • staff, shall be required prior to the issuance of the annual license to cover the forthcoming year's reclamation. d. The reclamation shall include top soil from the site being preserved and put back into place after mining. e. The vegetation established for reclamation must be maintained until it is self sufficient. £ 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. 9. Traffic a. Except for localized jobs, traffic through Elk River associated with this operation shall be limited to U.S. Highway 10 and 169. I0. 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. b• All equipment shall be located as to reduce dust to adjacent properties. c• Water, but no chemical agents, shall be used to control dust as necessary. 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. 11. Hours of Operation All mineral excavation, processing, and sales activities shall be conducted between the hours of 7:00 a.m. and 7:00 p.m., Monday through Saturday. Increased hours shall require an amendment to this permit. • s:planning:pc:05~04 Page 8 12. Noise • a. The noise from screening and crushing associated with this operation shall be controlled by equipment location on site, the placement of stock piles, 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. 13. Shon a. No unscreen outside storage shall be allowed. b. The operator shall have an approved hazardous waste license for this facility and properly dispose of or recycle all waste. 14. Liehtine Lighting from the operation shall be directed away from adjacent • public right-of-a=ay and nearby or 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 a=ithin 25 feet of a dwelling, or more than .5 foot candles on any= part of the adjacent property. 15. 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. 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. • s:planning:pc:95.04 Page 9 17. Groundwater protection measures shall include: • a. The operator shall file with the City and emergency spill response plan. The operator shall adhere to this plan 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. Fuel tanks shall be above ground, properly diked, and registered with MPCA. 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 4 working days. e. A water appropriation permit from the Department of Natural Resources must be obtained. f. The wells located at the Julius Nemeth residence, the scale house and the wash operation, shall be monitored once a year • for diesel range organics (DRO). If mining is to occur below the water table, the above wells must be monitored for DRO prior to excavation activities commencing and after their cessation. Further, in the event of a spill, appropriate water tests will be taken until the spill is deemed clean. g. Groundwater levels shall be monitored in the wells located at the Julius Nemeth residence, the scale house, .and the wash operation, prior to the start of wash operations and an additional 3 times during the first week of said operation to predict the long term effects of the pump operation. Thereafter, the aforementioned wells shall be tested a minimum of twice per month, said frequency to be increased during dry periods. This routine testing shall also be done for the water recycling pond. h. Water usage by mining activity shall not adversely affect adjacent residential wells. Mitagative measures may include, but are not limited to, curtailing of pumping activities until water levels return. i. The appropriate storm water permit shall be obtained by the • operator from A4PCA. s:planning:pc:95~04 uai~ciaa ta::fz Zr612 559 2202 BA LIESC$ rQo02/OOJ ~ LIC~.C B.A, TO: FROM: DATE: • ING. 13400 tSTH AVE. N. MINNEAPOLIS, MN 55441 &121559-1423 FAX: 61 21559-22 02 MEMORANDUM Mr. Steve Rohlf -City of Elk River Mark Olson and John Lichter March 15, 1995 RE: Northern Con-Agg., Inc. Gravel Mining Plan At your request we have completed a review of the Northern Con-Agg application entitled "Conditional Use Permit Update for Mining and Processing at the Existing Northern Con-Agg., Inc. Elk River Gravel Mine." The application was well organized and generally addressed the potential environmetttai concerns identified by the Ells River Sand and Gravel Mining District EIS. The following few comments regarding the proposed water level and quality monitoring are offered for your consideration and use in completing the conditional use permit process. Pages 11 and 12 of the application indicate that gravel training is targeted for a base elevation of 955 which is approximately 10 feet above the water table. however, dependant on market detttand and the quality of the material available, it is stated that mixing may extcnd to a lower elevation which is below the water table. If tttitting is to extend below the water table, two wart:r quality monitoring events for volatile organic compounds (VOCs) are proposed. The sampling events aze to occur before excavation below the water table begins, and again during training activities. It i5 assumed that the proposed monitoring is t0 be protective of the increased potential for impacts to come In contact with the exposed water table from training equipment. It is not stated where the water samples will be collected. Based on the potential source of impacts, which are principally the fluids associated with mining machinery, it tray appear prudent to add Diesel Range Organics (DRO) and Gasoline Range Organics (GRO) to the parameter list. In addition, the sampling locations should include the two shallow on-site we21s (Northern Con-Agg Wells #1 and #2), and the nearby Nemeth residential well. For clamcation, it is noted that Northern Con-Agg Well #1 is the flinch scale house well designated as well "E" in the EIS (see Table 3.3-2 and Figure 3.3-1 in the EIS); and Well #2 is the 16-inch wash water well designated in the EIS as well "F". The Nemeth residential well is located due south of Northern Con-Agg Well #2 {well "F"). With regazd to sampling frequency, it may be desirable to identify that a sampling event occur at the cessation of mining activities for the year. This latter samplitg event could be in addition • to, or in place of, the second sampling event proposed in the document. If a spill should occur, it is stated that floating booms be used to collect the product spilled product. Sampling during training activities may best take place in the event of such a release. 03/22/95 14:33 $812 559 2202 BA LIESCH ~003/A03 Page 2 March 22, 1995 Page 11 of the application indicates that wash water used at the facility will continue to be • obtained fmm the on-site pond and adjacent well as necessary. According to the application. water level monitoring will occur during the pumping season to assure that drawdown of the water table does not create pmblems with nearby wells. The application does not identify the water level monitoring points. It is grudeat that the specific monitoring goints and frequency of monitotng be identified. Water level monitoring should be initiated before pumping seasoa begins and several times during the First week. Thereafter, monitoring should occur two times per month with the option to increase monitoring intervals in the case of climatic dry periods, which would likely cause a corresponding drop in the elevation of the water table. The water level monitoring should itxlude the pond, and the three nearest wells previously identified for water quality sampling including Northern Con-Agg Wells ~1 (well "E"), and #2 (well "F"), and the Nemeth well. Please call us if you have any questions or comments. Thank you. /ulPrj/GOID0001/grav.wp • • B.A. LIESCH ASSOCIATES, INC. 1340015TH AvENUE NORTH MINNEAPOLIS. MINNESOTA 554a1 • •~ ~- ~- ~ v w r= i. 1 n C L 9 M S A March 20, 1995 File: 230-2670 fO1Sl1TI1C IGCIBERS 1326 Energy Park Dri.e Mr, Steve Rohlf s. Poi, ntrt ss~os Building and Zoning Administrator 612.644~43a4 City Of Elk R1Vef ~~eoo-eee•ts23 13065 Orono Pazkway Fac 611.6449446 P.O. Box 490 Elk River, MN 55330 8T PAUL RE: NORTHERN CON-AGG, INC., GRAVEL. MINING PERMTT REQUEST Dear Mt. Rohlf: P _ 0 2 As requested, we have reviewed the submittal package from Northern Con-Agg, Inc., regazding their application for a conditional use permit for a mining. operation. Based on their submittal package and our review, we would offer the following wmments: OhlflaGwEEAiNG 1. It appears from their estimates that the mining operation is expected to last f""a°"MfMU approximately 15 yeas at an annual rate of 400,000 tons per year. IAl "~ 2. The site has direct access onto TH 169. There are existing turn lanes and 50iD W"s'f acceleration lanes which provide for reasonable access fot mining operation onto sraucruRU and off of the trunk highway. The site could access directly onto County Road 77 suA~Erir,~ on the south of the property, However, the submittal indicates that the vast TRAETIC majority of the traffic is expected to leave via the highway either north or south. TRMrSFORTATiON EIECTRKAE/M£CMArJKAE 3. Available information indicates that the water table at the site is expected to be a[ f,+cRxERarc: approximately elevation 945. The Plan of Operation indicates that mining is rtvAc expected to approximately elevation 955. This would leave an estimated 10 foot rowERERSA~euna+ separation between the bottom of the mining and the expected ground water sv°A elevation. SYSTEM CONTROLS 4. The Plan of Operation indicates that material will be crushed and washed at the site. Since an existing mining operation currently operates here, there already is a DNR Water Appropriation Permit in place which monitors the use of ground water for the washing operation. 5. The final Reclamaton Plan indicates a bottom elevation of approximately 955. The highway on the east side is in the range of approximately 975 at the lowest point to approximately elevation 1,009 at the southeast comer. Therefore, the property will •ES ir+: slope up to the existing highway elevations. The Reclamation Plan shows existing ,uw~rrous elevations in the range of 1035 on the south, west, and north of the site. Phis PRIOA LAKE indicates a slope at 4:1 of approximately 75 feet in vertical elevation. This will be St. PAUL tAR-22-95 WED 1 0 C 30 MS A ST PAUL P ~+3, Mr. Steve Rohlf Mazch 20, 1995 Page Two necessary until the other properties surrounding the Northern Con-Agg s'ste are mined and can be reclaimed and restored at approximately the same elevation. Ultimately, these slopes should be reduced substantially. It is' also planned that some day in the future, County Road 77 on the south would be lowered to better match the final reclamation elevation of this site and the site to the south. 6. The Reclamation Plan shows a horizontal distance of 50 feet from the right-of--way to the top of the slope on the south adjacent to County Road 7?. This exceeds clear zone widths as laid out in the MnDOT Municipal State Aid Guidelines; therefore, it is likely that no additional safety measures would be necessary, such as fencing ar guardrails in this area. 7. We have assumed that other issues, such as ground water monitoring, noise, dust, and other environmental issues will be handled by you or your environmental consultant. If you have any questions regazding any of these comments, or would like further information, please call. Sincerely, MSA, CONSULTING ENGINEERS Terry J. Maurer, P.E. TJM:tw sa6-zzo3.~.r • • • MAR 0 9 1995 • ~~ -~ ~V ~ Sherd urne County _ _ .~fighzyay Department P.O. BOX 338 • ELK RIVER, MN 55330 PHONE (612)441-1722 FAX (612)441-2264 March 7, 199' Mr. Steven Rohlf City of Elk River Planning and Zoning 13065 Orono Parkway, Box 490 Elk River, MN 55330 RE: Conditional Use Pernrit Application for Mining and Processing at the Northern Con-Agg., Inc. Elk River Gravel Mine Dear Mr. Rohlf: As you requested, we have reviewed the above referenced report. Based on the findings in the report, • we do not believe that this project would adversely impact the County roads in the vicinity if the permit is adhered to. Should you have any questions or require any additional information, please feel free to call. Sincerely, ~~ David R. Schwarting, P.E Sherburne County High ay Engineer • CITY OF ELK RIVER . AGREEMENT FOR ISSUANCE OF CONDITIONAL USE PERMIT FOR MINERAL EXCAVATION THIS AGREEMENT, made and entered into this day of 1995, by and between the CITY OF ELK RIVER, a municipal corporation organized under the laws of the State of Minnesota (City), and SHIELY COMPANY, a Minnesota corporation (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: All of the south half of the south half of the northwest quarter (Sl/2 of Sl/2 of NWl/4) lying west of U.S. Highway 169, and all of the north half of the southwest quarter (Nl/2 of SWl/4) lying west of U.S. Highway 169, and • the south half of the southwest quarter (Sl/2 of SWl/4) lying west of U.S. Highway 169, except the west one thousand feet (1,000 ft.) of the south seven hundred feet (700 ft.) lying west of U.S. Highway 169, and except that part owned by the State of Minnesota, all in Section ten (10), Township thirty-three (33), Range twenty-six (26), Sherburne County, Minnesota. Further, the applicant's application for a conditional use permit includes a shop to act as a support facility for the mining operation on land legally described as follows: The south half of the southwest quarter of the northeast quarter (Sl/2 of SWl/4 of NE1/4), and the south one hundred feet (100 ft.) of the north one thousand-ninety- nine and four hundredths feet (1,099.4 ft.) of the southeast quarter of the northwest quarter (SEl/4 of NWl/4) lying east of U.S. Highway 169 • all in Section ten (10), Range twenty-six (26), Township thirty-three (33), Sherburne County, Minnesota. Page 2 • (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 April 17, 1995, 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 License Agreement and 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, together with the License Agreement 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 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: cupSHIEIJba/ar Page 3 • (Ol) This Conditional Use Permit authorizes Mineral Excavation (gravel) Excavation 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 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 must be renewed annually and shall run from January 1st through December 31st. The annual license fee is that which is specified by City Code at time of renewal. This license fee is not in lieu of gravel tax collected by the County and 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 Zoning 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. • cupSHIEL/bz/er Page 4 (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 Zoning Administrator prior to issuance of the annual mineral excavation license. c. A $5,000 dollar letter of credit, bond, or deposit, approved by staff, shall be required prior to the issuance of the annual license to cover the forthcoming year's reclamation. d. The reclamation shall include top soil from the site being preserved and put back into place after mining. e. The vegetation established for reclamation must be maintained until it is self sufficient. f. 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. (10) Traffic a. Except for localized jobs, traffic through Elk River associated with this operation shall be limited to U.S. Highway 10 and 169. (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. b. All equipment shall be located as to reduce dust to adjacent properties. c. Water, but no chemical agents, shall be used to control dust as necessary. • cupSHIELlbz/sr Page 5 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 hours of 7:00 a.m. and 7:00 p.m., Monday through Saturday. Increased hours shall require an amendment to this permit. (13) Noise a. The noise from screening and crushing associated with this operation shall be controlled by equipment location on site, the placement of stock piles, 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) Shon a. No unscreened outside storage shall be allowed. b. The operator shall have an approved hazardous waste license for this facility and properly dispose of or recycle all waste. (15) Lie'htine 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 25 feet of a dwelling, or more than .5 foot candles on any part of the adjacent property. • cupSHIEIJbz/sr Page 6 (16) 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. (17) 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. (18) Groundwater protection measures shall include: a. The operator shall file with the City an emergency spill response plan. The operator shall adhere to this plan 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. Fuel tanks shall be above ground, properly diked, and registered with MPCA. • 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 4 working days. e. A water appropriation permit from the Department of Natural Resources must be obtained. £ The wells located at the Julius Nemeth residence, the scale house and the wash operation, shall be monitored once a year for diesel range organic's (DRO). If mining is to occur below the water table, the above wells must be monitored for DRO prior to excavation activities commencing and after their cessation. Further, in the event of a spill, appropriate water tests will be taken until the spill is deemed clean. g. Groundwater levels shall be monitored in the wells located at the Julius Nemeth residence, the scale house, and the wash operation, prior to the start of wash • operations and an additional 3 times during the first week of said operation to predict the long term effects of cup5HIELlbz/sr Page 7 the pump operation. Thereafter, the aforementioned • wells shall be tested a minimum of twice per month, said frequency to be increased during dry periods. This routine testing shall also be done for the water recycling pond. h. Water usage by mining activity shall not adversely affect adjacent residential wells. Mitigative measures may include, but are not limited to, curtailing of pumping activities until water levels return. i. The appropriate storm water permit shall be obtained by the operator from MPCA. 4.) General Provisions- (Ol) 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) Bindine 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: • cupSHIELbz/sr Page 8 If to the City at: City of Elk River • ATTN: Building and Zoning Administrator 13065 Orono Parkway P.O. Box 490 Elk River, Minnesota 55330-0490 If to the Operator at: Shiely Company ATTN: Bob Bieraugel 2915 Waters Road, Suite 105 Egan, Minnesota 55121 (06) Inco oration b 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 • By: Its: Mayor By: Its: City Administrator OPERATOR: SHIELY COMPANY By: By: FEE OWNER (S) OF PROPERTY: By: By: cupSHIEL/bz/ar Page 9 • STATE OF MINNESOTA ss. COUNTY OF SHERBURN The foregoing instrument was acknowledged before me this day of 1995, by Henry A. Duitsman, 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 1995, by Patrick D. Klaers, the City Administrator of THE CITY OF ELK RIVER, a Minnesota municipal corporation, on behalf of the corporation. • Notary Public STATE OF MINNESOTA COUNTY OF ss. The foregoing instrument was acknowledged before me this day of 1995, by the of Shiely Company Incorporated, a Minnesota corporation, on behalf of the corporation. Notary Public STATE OF MINNESOTA COUNTY OF ss. cupSHIElJbzfsr Page 10 The foregoing instrument was acknowledged before me this day • of 1994, by ,the of Shiely Company, a Minnesota corporation, on behalf of the corporation. Notary Public STATE OF MINNESOTA COUNTY OF ss. The foregoing instrument was acknowledged before me this day of 1995, by Marian Nemeth, the fee owner of subject property. Notary Public STATE OF MINNESOTA COUNTY OF ss. The foregoing instrument was acknowledged before me this day of • , 1995, by Julius Nemeth, the fee owner of subject property. Notary Public This instrument was drafted by: u City of Elk River Building and Zoning Department 13065 Orono Parkway P.O. Box 490 Elk River, MN 55330 cupSHIEIJbzlsr