The public hearing concerning Chippewa Sands LLC non-metalic mining application and permit on the Jeffrey O. Buchner and/or J & L Mining ,LLC and Robinson Panosian Mining LLC properties was opened at 7:15 pm on October 16, 2013 by Supervisor David Clements at the Cooks Valley Town Hall located at 15784 40th Street. Supervisor present was John Sykora. The other town officers present were Darrel Fehr (who recused himself) and Victoria Trinko-clerk. Attorney Glenn Stoddard represented the Town of Cooks Valley. Representatives from Chippewa Sands and residents are listed on the attached sheet.
Glenn Stoddard explained the process of drafting this permit between himself and the attorney for Chippewa Sands stating the permit is now ready to be presented to the board and the public.
Attorney Glenn Stoddard is recommending approval of this permit even though there was considerable dialogue between the two attorneys concerning the exclusion of the property value guarantee clause. The property value guarantee is not included as Chippewa Sands felt the property owners involved would not ask for a property value guarantee as they were not interested in moving plus Chippewa Sands did not want the property value guarantee maintaining it was not constitutional and would challenge it in court if this clause was included in the permit.
Glenn Stoddard proposed reading through the permit and would open the permit for discussion after the reading unless there were specific sections that the public wanted to discuss.
Section 2.1- acknowledges that this is a permit not an agreement as it is subject to review and to be opened up.
Other sections read through were Terms and conditions, mining and hauling operations, [Chippewa Sands has submitted a dust control plan to the State of Wisconsin] ground water and well protection, and blasting [there is no current blasting]
Section 7 Nuisance Complaints & mitigation: this section was added in lieu of the property value guarantee
Section 7.1 and 7.2 –when an industry interferes with the use and enjoyment of another resident’s property this constitutes a nuisance. Property owners and industries have the right to conduct business on their property but their rights end at the property line and then it affects the rights of another person’s property. This section bridges the gap between the government’s role in protecting the people from the diminishing of their property and people who are not being compensated for the diminishing of their property value. There are two ways to approach this section: if the mine is directly impacting the neighbor, they need to make the compensation to the neighbor. If there is no compensation, the company may need more work to mitigate the nuisance to the other property. This is a unique situation as the mining started while our ordinance was in litigation and they had the investment in their company. Now the Town of Cooks Valley has to try to bring them under compliance. Glenn Stoddard felt the town would be risking litigation if the Town of Cooks Valley pushed the issue of property value guarantee. Glenn Stoddard feels this mine is not affecting property values as much as the other mines have. The lawyer for Chippewa Sands indicated they would be agreeable to this section. How does this section take the place of property value guaranty? Eric Strang, representing Chippewa Sands related the company wants to be in operation for a long time. So they would work with the neighbors if there is a nuisance and if there is a devaluation of property value. The neighbor can complain under the nuisance section and work on an agreement to compensate and reduce the issue. The Town of Cooks Valley could act as a referee in this process.
Section 10 Permit application review and development fee, environment monitoring and enforcement. A $10,000.00 cap or fee is set for the cost of developing the permit and permit process. At this time, the $10,000.00 cap has been surpassed but Glenn Stoddard has willingly donated his extra time as the attorney for the Town of Cooks Valley. Environmental monitoring will be paid by the company up to $10,000.00 for the monitoring of air and well water quality. The disputes have a process and remedies are standard language as in the other permits granted by the Town of Cooks Valley.
Section 10.8 Any person may have a right of action and the permit is not a protection from any injury, loss or damage. This would be after going through the nuisance process and then would proceed to court action.
11.5 If part of the permit is changed and can not be enforced, it will be severed from the permit but the rest of the permit will remain in effect.
11.6 This section is new and Chippewa Sands insisted on this section if they were going to sign the permit. This company does not have to sign this permit. They have the right to challenge the permit. This is similar to the severability clause. They are signing the permit but not agreeing to it and want to be able to challenge the permit. Chippewa Sands feels the permit gives the Town of Cooks Valley flexibility in the future that may cost them money in the future. With this language and the lack of the property value guarantee, the other section of with the nuisance clause, Glenn Stoddard is okay with this permit but in the future the Town of Cooks Valley may want to impose the property value guarantee or other language to deal with other nuisances.
11.7 This section was added and Chippewa Sands has concerns about it. They shortened the section. The longer version clarifies that the Town of Cooks Valley has the right to require the permit holder to apply for a new or modified permit if it proposes to expand its mining operations to encompass land that is not currently subject to the permit holder’s reclamation permit. Attorney Glenn Stoddard explained the process of negotiation and encouraged Chippewa Sands not to push the permit on the Town of Cooks Valley but need to negotiate with the board. In the discussion of section 11.7 Supervisor John Sykora had concerns about future property values being affected due to expansion of the Chippewa Sands mine. If Chippewa Sands challenges the permit the Town of Cooks Valley would have to defend the challenge. The challenge to the property value guarantee would be a constitutional issue and Chippewa Sands would maintain the Town of Cooks Valley had exceeded its authority.
There was a public comment submitted by Victoria Trinko and a comment from Judith A. prince read by Victoria Trinko.
Glenn Stoddard referred to section 7.1 and 7.2 in the permit to remediate the concern about the dust as mentioned in Victoria Trinko’s comment. This issue would be between Chippewa Sands and Victoria Trinko as expressed in section 10.8 where Victoria Trinko would be able to redress any injury, loss or damage sustained by such person as a result of Permit Holder’s operations on the Property. Representative of Chippewa Sands, Eric Strang, would like to work as neighbors and resolve any conflicts without the Town of Cooks Valley having to be involved. There was discussion about possible monitoring of air quality and based on the results the Town of Cooks Valley could make Chippewa Sands do more to limit their impact on the quality of the air.
Glenn Stoddard feels we as yet do not have the studies in relation to the possible hazards of this industry beyond the mine site boundaries. However, he felt there was cause for filing or complaining about dust as a nuisance and Victoria Trinko should work with Chippewa Sands to resolve the issue.
David Clements made a motion to extend the discussion of the public hearing for one hour. John Sykora seconded the motion. The motion carried 2-0.
Tom Short had concerns with section 3.4.1 with trucks traveling to or from the property shall use only roads and highway approved from time to time for such use by Chippewa County or the State of Wisconsin. Discussion of how this applied to the mine trucks vs. private trucks that could haul bedding sand from the mine and vary from the road agreement route. This would reduce the cost of hauling bedding sand from the other side of Bloomer. Glenn Stoddard proposed adding the phrase [except trucks hauling bedding sand] to the permit.
John Sykora expressed concerns about the amount of money allotted for monitoring which would not cover the cost of the sampling. There was a suggestion of having Dr. Crispin Pierce conduct air monitoring on private property off the mine site. Glenn Stoddard felt Victoria Trinko does not need monitoring to prove the case of dust as a nuisance.
Divvied Clements made a motion to close the public hearing at 9:49 pm. John Sykora seconded the motion. The motion carried 2-0.