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Riverway Board to seek legal counsel on frac sand permit application
Reaching out to DOJ
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After a presentation by representatives of the Pattison Sand Company and comments from opponents of the company’s proposed frac sand mine, the Lower Wisconsin Riverway Board decided to seek the opinion of legal counsel on permitting the operation.

Meeting in Prairie du Chien on Thursday, Dec. 13, the board took the testimony of those concerned and then had a brief discussion of the situation. The board ultimately approved unanimously a motion by Ron Leys, the Crawford County representative on the board, to seek the opinion of lawyers from the Wisconsin Department of Justice.

The operations committee report began with the non-metallic mining permit request by the Pattison Sand Company and landowners. LWRB Executive Director Mark Cupp sought to explain the situation.

Cupp told the board he was ready to “set the stage” for the discussion and give his recommendation on the permit applications.

The executive director told the board he realized the decision on permitting would be difficult. He also told the board that in his opinion the proposed sand mine was an “incompatible use for the Riverway.”

However, Cupp explained that the board must consider the permit application under the standards prescribed by law. He noted the board’s charter says it shall issue permits for activities that comply with the applicable standards. In the case of a non-metallic mining permit being sought by Pattison and the landowners, the only applicable standard would be whether the activity would be visible from the Wisconsin River when leaves are on the deciduous trees. Cupp reported that as designed the mine would meet that standard and neither the operation, stockpiled material or equipment would be visible from the river with leaves on the trees. He concluded by saying by that standard the board should issue the permits for the frac sand mine.

Noise, dust, lighting and other factors are not part of the standards set on for the Lower Wisconsin Riverway Board to consider in making a decision on issuing the permit, Cupp told the board. However, he also pointed out that the operation would require permits from the Wisconsin Department of Natural Resources, as well as the Town of Bridgeport.

Don Greenwood, a longstanding member of the LWRB who was elected to become its new chairperson earlier in the meeting, discussed the legal situation. He described a conversation with staff from Wisconsin Legislative Reference Bureau about Riverway code that prohibits new or expanded non-metallic mines with some exception. He noted that the code was in conflict with a statute that had been passed subsequent to the code being created.

Greenwood, along with board member Melody Moore, authored a paper addressing the legal questions and urging the board to approach the legislature for relief from future frac sand mines in the Riverway. 

“Saying that it’s obsolete doesn’t change the code,” Greenwood said. “Promulgation has not happened repealing Code 207.”

Edwina Kavanaugh, a DNR attorney present for the meeting, agreed that the code might be in effect, but the fact that it was in conflict with the statute would render unenforceable.

“Statutes trump codes,” Kavanaugh said at one point. “What’s in the code is in conflict with the statute.”

Greenwood cited other instances he was familiar with where codes were enforced, even after statutes affecting them had been past.

“It is my contention that the board would be out on a limb either way, if we take action at this time,” Greenwood said. “We need to see how we might bring the code and the statutes into harmony.”

Greenwood believes the Riverway Board should undertake a process to repeal part of the code. He also believes the board should begin working with the legislature to make statutory changes that would address industrial scale frac sand mining in the Riverway.

“The statute was passed to allow little town governments the right to have a sand pit to get sand to spread on the roads,” Greenwood said. “That was the impetus of the change, not allowing industrial frac sand mining, which may be able to slip through the door now.”

Ron Leys noted that there were two opinions, one from the executive director and another from the board chairperson, that seemed to be in conflict.

“I don’t know how to choose between them,” Leys said. “I believe the board should seek the opinion of legal counsel through the Department of Justice and the Attorney General’s office.”

Kavanaugh, the DNR attorney, noted that the DOJ would be the correct agency for the Riverway Board to seek direct counsel. She made it clear while she was present to offer legal opinions she was employed as an attorney of the DNR not the Lower Wisconsin Riverway Board.

After the board’s brief discussion of the situation, Pattison permits and compliance manager Beth Regan began her presentation on the Iowa-based sand mining company and the proposed sand mine in Bridgeport.

Regan described what would occur if the mine is permitted. She began by noting the property for the proposed mines is made up of three contiguous properties located south of Highway 60 and north of the Wisconsin River in the Town of Bridgeport, about 2.5 miles east of Highway 18.

Regan explained the sand will be removed by truck and transported to Clayton, Iowa for processing and shipping. Reclamation of the site will follow. At one point in the presentation, Regan explained that although 128 acres will eventually be mined for sand only 30 acres at a time would be used for the open pit operation. An exhausted site would be filled and reclaimed, while another 30-acre site is opened. Since processing will take place in Iowa, there would not be a high capacity well and no chemicals would be used on the site.

Regan said there was inaccurate information being circulated in opinion letters and elsewhere that needed to be addressed.

The Pattison spokesperson emphasized that there would be no additional truck traffic through Wauzeka since the sand on the trucks would travel west on Highway 60 to Highway 18 and on to Iowa. Wauzeka is east of the proposed site. She also noted this route would not place the trucks on any county or township roads.

“Dust control is extremely important to us,” Regan said referencing one criticism of the proposed mine. She explained the company would take efforts to control dust as it did in Iowa.

Blasting with explosives would occur up to two times per week, according to Regan and Kurt Oakes, an employee of Olson Explosives, the firm employed by Pattison to do the blasting.

Oakes described the blasting and its effects. He said in 27 years of blasting, at times within 60 feet of a barn, he had never had a “panic incident” with livestock, a reference to criticism the proposed mine would disrupt nearby farming operations.

Oakes acknowledged a large bat hibernium was located in a cave on the nearby Fishler property, but assured the board the blasting would not affect the bats.

“We’ll work with neighbors before blasting,” Oakes said.

Regan told the board that wildlife would continue to be on the property as it is in the Pattison property in Iowa.

“We will do what we can to minimize lighting impact,” Regan said “The Clayton Operation will have 100 times more light than the proposed Bridgeport operation.”

Trucking would be at the rate of five trucks per hour at a capacity of 80,000 pounds about the size of similar grain trucks, according to Regan. Ultimately that means 120 more trucks per day on Highways 60 and 18.

Following Regan and Oakes lengthy presentation, other statements taken from the public were confined to just three minutes. Of the 17 people who chose to make remarks before the board, 10 were opponents of permitting the mine and seven favored permitting. The board also accepted written comments.

Of those who favored permitting the mine, four were current or past Pattison employees, one was the contracted truck firm owner, another appeared to be Beth Regan’s husband and one was a landowner seeking to lease the property for the prosed mine. Most of the proponents for permitting the mine re-emphasized points made during Regan and Oakes presentation. Several of the employees lauded Pattison Sand as a good employer.

The first frac sand mine opponent to address the board was Edie Ehlert, a co-coordinator of the Crawford Stewardship Project. She told the board they needed to hear a different perspective on the situation than that being provided by Pattison Sand and suggested they contact independent geologist Kelvin Rodolfo.

Ehlert also cautioned the board that the presentation they had just heard was actually only about plans and there were no regulations involved.

“Unless the Town of Bridgeport imposes some regulations, they (Pattison) will be free to do anything they want for the next 60 years,” Ehlert said.

Like others she reminded the board that the law allowing sand mining in the Riverway was meant to provide for local gravel use not large-scale frac sand mining.

Crawford Stewardship Project’s Kathy Brynes disputed one of Regan’s contentions that the sand mined in Bridgeport would help in fracking for oil and natural gas thereby easing the domestic U.S. energy needs.

“A lot of the natural gas and oil is exported,” Byrnes said. “They’re out to make money and they’ll sell it worldwide.”

Byrnes also pointed out that while federal agencies like OSHA and MSHA will monitor particulate levels in the air at the mine sites, the monitoring of fugitive dust beyond the mine site was done by the DNR. She said they had very few personnel available for the work. She also disputed Regan’s point that silicosis was a problem on the decline and asked people to read the work of a professor at UW-Eau Claire on the subject.

Finally, Byrnes noted and circulated among the board members a resolution unanimously passed by the Ho-Chunk Nation Legislature stating their opposition to frac sand mining.

Timm Zumm, the President of FLOW (Friends of the Lower Wisconsin Riverway) praised the board for identifying what they could deal with and going through the process so everyone was clear on the facts.

“Somewhere down the road, we can agree to disagree,” Zumm said.

The Riverway activist claimed the river and Highway 60 corridors were “priceless.” He noted the jobs that the mine might make for 60 years should be studied to see how they compared with tourism-related jobs created by the Riverway’s existence.

“As the rest of the country and the rest of the state become more industrialized, the Riverway corridor will become more and more valuable,” Zumm said.

Another opponent of permitting the mine, Linda Meadowcroft, questioned what the future was for the entire 92-mile Lower Wisconsin Riverway corridor. She noted it could become the site of massive sand mining.

“Will you provide the oversight?” Meadowcroft asked the board.

Doug Jones explained there was a lot of waste in the current rush to frack for natural gas and about 30 percent of the gas was being wasted. To Jones, saving the 30 percent of lost resources would mean 30 percent  less drilling  and 30 percent less mining and 30 percent more environment not to be lost.

Jones said instead of “Drill Baby Drill” the motto should be “Plan and Think Baby, Plan and Think.”

FLOW’s Roger Reynolds asked how an archaeological survey was done below the ag tillage zones.

Reynolds acknowledged Pattison had presented material that indicated the proposal would meet legal standards. However, he questioned whether the proposed mine would cause health difficulties and how it would impact the standard of living.

Reynolds urged the board to give equal time to professional voices “to give the facts from the other side.”

Another speaker, William Keane, asked the board to look into the proposed sand mine’s long-range effect on fishing and other recreational uses of the river.

Arnie Steele, a member of Bridgeport Concerned Citizens who lives on Highway 60 along the proposed truck route for the mined sand, raised his concerns about the sand and dust released by the passing trucks.

“What are you going to do when I get silicosis?” Steele asked “What are you going to do?”

Harriet Behar, a Crawford County resident, cautioned the board about their responsibilities.

“You are the stewards of the Lower Wisconsin Riverway. The decision made here will have long-ranging consequences. What does the Lower Wisconsin Riverway look like?”

 “Consider your work as the protectors of Lower Wisconsin Riverway?” Behar concluded.

One of the last people to address the board on the subject of the permit applications for the sand mine was Rod Marfilius, one of the landowners seeking a permit to allow the sand mine.

“As a kid I remember when the Riverway was created,” Marfilius said. “We had no choice about it.”

Marfilius pointed out that the creation of the Riverway took away a lot of choices for landowners. He also described a future for his land after the sand mining is completed.

“My children will take care of the land after I’m gone,” Marfilius said at one point.

The local landowner was also struck by the people employed by Pattison and pointed out the lack of good jobs is why a lot of young people in the area wind up going somewhere else.

Marfilius also took exception to the dust argument  being raised against the proposed sand mine. He noted there was lots of dust at times near the Prairie du Chien airport and no one seemed to be concerned.