Opponents of the proposed sand mine in Union appealed the county zoning committee’s June 6 decision to grant a conditional use permit.
The appeal was filed with the Waupaca County Planning and Zoning Department Friday, July 5.
“I, along with my neighbors, are deeply concerned with the impact that the proposed sand mine will have on our community and on the values of our homes,” said petitioner Tania Wadzinski, of Manawa, in an affidavit.
Wadzinski’s appeal was joined by 20 other Waupaca County citizens and filed by Brian Hamill, an attorney with Dempsey Law Firm in Oshkosh.
The petition for appeal included affidavits from sand mine opponents, letters of opposition from the Bear Creek Town Board and the Ogdensburg Village Board, a report from a geologist, and a statement from an Eau Claire attorney questioning the permit’s legality.
Glenn Stoddard has represented several municipalities and citizen groups on legal issues related to sand mining.
He drafted the Nonmetallic Mining Ordinance for the town of Cooks Valley in Chippewa County, which was upheld by the Wisconsin Supreme Court in February 2012.
Stoddard noted four reasons why the conditional use permit (CUP) for Gelhar’s sand mine should have been denied.
“The CUP application is incomplete,” Stoddard said in his written statement. “The application itself does not include any information on the current zoning district, the size of the project, the type of construction activities proposed, the cost of the proposed mine and related operations, and the builders or construction companies that would be involved in developing the project.”
He criticized Gelhar’s application because it failed to include a site plan. Instead, the application says, “See Draft Reclamation Plan for Details.”
“This makes it impossible for anyone, including members of the Waupaca County Planning and Zoning Committee, to determine exactly what the applicant is proposing with this operation,” Stoddard said.
In Waupaca County, any nonmetallic mine must first submit a reclamation plan to the East Central Wisconsin Regional Planning Commission in Menasha.
The plan must include brief descriptions of the natural and physical conditions of the site, information on the surface and subsurface soils, location of surface water, drainage and groundwater. There must also be information about the operation and how it will affect the environment.
County Planning and Zoning Director Ryan Brown said conditional use permit applications for nonmetallic mining operations typically rely on the draft reclamation plan to provide more details about the operation.
“The permit applications rely on the reclamation plans for the same reason as the appeal included attached exhibits, to avoid redundancy,” he said.
Brown said Gelhar’s reclamation plan was available to members of the zoning committee and to the general public prior to the public hearing.
Wrong zoning district?
Stoddard also argues that the two parcels in Union where the sand mine would be located are not zoned for the type of mining and processing that would occur there.
Stoddard said the property needs to be rezoned from “Agricultural Enterprise” to “Rural Industrial-Intensive.”
Quoting the county’s zoning ordinance regarding Ag Enterprise districts, Stoddard notes, “Processing of nonmetallic minerals off the mining site is covered under this land use only where established to serve a limited term construction project.”
Stoddard argues that Gelhar’s 30-year plan for the site is not a limited term project and therefore illegal.
Brown said Stoddard is misinterpreting the county’s zoning ordinance. He said a conditional use permit for nonmetallic mine is allowed for this district.
Did committee ignore comprehensive plan?
Stoddard also points to the town of Union’s comprehensive plan, which prohibits any mining operation within 2,000 feet of a dwelling.
At its June 6 meeting, the zoning committee provided a condition for the permit that prohibited any operations within 500 feet of any neighbor’s property line.
Finally, Stoddard said the mine’s operations would violate the county’s standards for granting a conditional use permit.
Under the Waupaca County Zoning ordinance, conditional use permits must have conditions that “ensure no adverse effects to the county’s and the immediate vicinity’s health, general welfare, safety, and economic prosperity.”
Stoddard pointed to a long list of the mine’s potentially adverse effects.
He said blasting and continuous noise from the mine would disrupt wildlife, while the mine’s silica dust would cause health hazards to people living in the area.
He said the mine would disrupt the character and quality of life in the area, as well as have an impact on property values.
“These types of adverse impacts are not merely hypothetical or theoretical. They are also not based on merely on fear mongering,” Stoddard said. “They are, in fact, being experienced in many areas of central and western Wisconsin at this time, because of the boom in frac sand mining.”
When asked about the adverse impacts of sand mining, Brown responded that the purpose of developing conditions restricting operations at the mine was to mitigate those impacts.
At its June 6 meeting, the zoning committee set conditions intended to protect the area from declining property values and groundwater contamination.
Frac sand at issue
The committee also prohibited the sale of frac sand from the site without prior committee approval.
Gelhar has indicated that its primary purpose for opening the mine is to provide sand to Waupaca Foundry. Representatives from Gelhar have said the company will not sell sand to the hydrofracking industry.
Brown told the County Post that “with all conditional use permits there are issues with enforcement. We don’t have someone who can monitor the site 24/7. The only way we’re going to know if there is a violation is if someone calls and complaints.”
If the zoning department receives a complaint, it would investigate.
“If it’s a verified complaint, we will go through the necessary steps to correct it,” Brown said.
Opponents are concerned that the mine will begin selling sand to the fracking industry.
Prior to retiring to Waupaca, Dr. Terrance Gerlach worked as a geologist for the U.S. Geological Survey and for the Department of Energy.
His report on the type of sandstone that may be found in Waupaca County was included with the petition for appeal.
Gerlach says Gelhar’s reclamation plan incorrectly identifies the sandstone located at the proposes site in Union.
Gelhar’s plan indicates the presence of St. Peter sandstone in the area, but Wisconsin bedrock maps indicate that it is Cambrian sandstone.
“The Cambrian sandstone at the Union site will undoubtedly prove generally inferior to St. Peter sandstone as a source of foundry sand ,” Gerlach says in his report. “However, it is likely to provide a suitable source of fracking sand.”
In an email included with the petition, Gerlach questioned how the permit’s condition prohibiting the sale of frac sand could be enforced.
“The critical concern is that sand delivered to WF (Waupaca Foundry) could be sieved and sized with a course fraction – desirable as frac sand but not as desirable for foundry sand – removed and delivered via Wisconsin Central Ltd. Railroad just a short distance eastward down the track to Proppant Specialists in North Readfield.”
Proppant Specialists processes resin-coated, white silica sand that can be used in hydrofracking wells for oil and natural gas.
The appeals process
The appeal will be forwarded to the county’s Board of Adjustment, which will review the decision to grant the permit.
Brown said his department must prepare copies of the sand mine’s entire file for the board.
“Typically, the file for a conditional use permit is 20 to 30 pages. This one is hundreds and hundreds of pages,” Brown said.
He said the staff with the Clerk of Courts office will transcribe both the public hearing, which lasted more than six hours, and the June 6 meeting when the committee voted on the permit.
Prior to making a ruling, the Board of Adjustment will hold a public hearing.