HomeMy WebLinkAbout07-014
Motion By: LeMair
Second By: Millar
WHEREAS, On July 18, 2005, the City Council denied the Shakopee Mdewakanton Sioux
Community's petition for a supplemental Environmental Assessment Worksheet
(Resolution 05-130); and
WHEREAS, On August 15, 2005, the SMSC initiated a lawsuit against the City contending that the
denial of its petition for a supplemental EAW was improper; and
WHEREAS, On December 21, 2005, the City presented to the Court a motion for summary
judgment in the SMSC's lawsuit, arguing that the City properly denied the EAW petition
because Minn. R. 4410.1000 subp. 5 of the Environmental Review Rules did not
require a supplemental EAW if the project did not substantially change; and
WHEREAS, The SMSC agreed with the City that the lawsuit presented a legal question about the
interpretation of the Environmental Review Rules, but the SMSC argued that "the City
was obligated to review the impacts of the gravel mine on the surrounding land use
because of the significant changes in the area"; and
WHEREAS, On January 24, 2006, the Court issued the Order denying City's motion for summary
judgment in SMSC's lawsuit, for reasons that implied the Court might have agreed with
the SMSC's interpretation of Minn. R. 4410.1000 subp. 5 of the Environmental Review
Rules; and
WHEREAS, Following a request for clarification of the Order, the Court explained that the Court
agreed with the SMSC's interpretation of Minn. R. 4410.1000 subp. 5 of the
Environmental Review Rules, that the City should consider changes in the area
surrounding the proposed gravel mine; and that it would be "a very good idea" to
prepare a supplemental EAW; and
WHEREAS, The City Council wishes to act consistent with the Court's guidance and interpretation,
as clarified.
WHEREAS, Pursuant to Minn. R. 4410.1100, the City of Prior Lake has prepared an Environmental
Assessment Worksheet (EAW) for this proposed project; and
WHEREAS, The 30-day public comment period expired on November 22, 2006; and
WHEREAS, Minnesota Rules 4400.1700, subp. 2a (B), also allows the RGU to postpone the
decision on the need for an EIS, for not more than 30 days, in order to obtain lacking
information; and
WHEREAS, On December 18, 2006, the City Council has postponed the decision on the EAW until
January 16, 2007, and
.\VW\Al.cityofpriorlake. com
Phone 952.447.9800 / Fax 952.447.4245
WHEREAS, The Ryan Contracting excavation of sand and gravel is expected to comply with all the
City of Prior Lake standards and review agency standards; and
WHEREAS, Based on the criteria established in Minnesota R. 4410.1700, the project does have the
potential for significant environmental effects; and
WHEREAS, Based on the Findings of Fact and Conclusions, the project does have the potential for
significant environmental impacts.
NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE,
MINNESOTA as follows:
1. The recitals set forth above are incorporated herein.
2. The preparation of the EAW and comments received on the EAW have generated information
adequate to determine whether the proposed development has the potential for significant
environmental effects.
3. The EAW has identified areas where the potential for significant environmental effects exist. Where
possible, appropriate mitigative measures have been incorporated into the project plan. The
proposed sand and gravel excavation is expected to comply with all City of Prior Lake standards
and review agency standards.
4. The EAW does not provide enough information to address all of the potential impacts.
5. An Environmental Impact Statement is required to study the following:
a. Effects from additional traffic and number and size of the trucks on the adjacent roadway;
b. Effect on the safety of people traveling in the vicinity with those trucks;
c. Effects of higher noise decibels;
d. Health effects of dust and diesel for a continuous four-year period on the church and the
elderly who will be living there;
e. Effect on surface water and groundwater in the vicinity;
f. Effect on the SMSC drinking water supply that is within 100 yards of this area;
g. Effects of stacking of trucks and accessing CSAH 42 from McKenna Road without traffic light;
h. Potential enforcement issues as it relates to traffic generated by the mining operation on the
other users in the area.
6. The scope of the EIS is limited to the above factors.
7. The attached Findings of Fact and Conclusions are incorporated herein as Exhibit A as if fully set
forth.
PASSED AND ADOPTED THIS 16TH DAY OF JANUARY, 2007.
Hauaen X Hauaen
Erickson Erickson X
Hedbera X Hedbera
leMair X leMair
Millar X Millar
YES
NO
FrankBOY~
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EXHIBIT A
FINDINGS OF FACT AND CONCLUSIONS
IN THE MATTER OF THE DECISION ON THE NEED FORAN ENVIRONMENTAL IMPACT
STATEMENT (ElS) FOR THE PROPOSED MINING AND EXCA V A TION ON THE MCKENNA
PROPERTY
Ryan Contracting has proposed a sand and gravel mining operation on 12.91 acres ofland located on the
north side of McKenna Road, about lf4 mile north of CSAH 42, in the South 'li of Section 22, Township
115, Range 22. Pursuant to Minn. R. 4410.1100, subp. 6, the City of Prior Lake has prepared an
Environmental Assessment Worksheet (EA W) for this proposed project. As to the need for an
Environmental Impact Statement (EIS) on the project and based on the record in this matter, including
the EA W and comments received, the City of Prior Lake makes the following Findings of Fact and
Conclusions:
Findings of Fact
1. PROJECT DESCRIPTION
A. Project
This project proposes the excavation of sand and gravel from 12.91 acres. Approximately
500,000 cubic yards of material will be mined, for private purposes, over a 4-year period.
Upon conclusion of the mining operation, the site will be returned to agricultural use.
B. Project Site
The proposed project is located in the City of Prior Lake on the north side of North
Berens Road (formerly McKenna Road), about Y4 mile north of CSAH 42, in the South 'li
of Section 22, Township 115, Range 22, Scott County, Minnesota. The excavation area
itself in 12.91 acres in size. The parcel on which it is located is approximately 29.6 acres
in area. This site includes 8.5 acres of woodland, 20.5 acres of brush/grassland/cropland
and 0.6 acres oflawn.
II. PROJECT HISTORY
A. In January, 2000, the City of Prior Lake received a petition requesting the preparation of
an Environmental Assessment Worksheet (EA W) for this project. On February 22,2000,
the City Council adopted a resolution declaring the need for an EA W.
B. An EA W was prepared on the proposed project and distributed to the Environmental
Quality Board (EQB) mailing list and other interested parties on November 15,2000.
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C. A press release containing the notice of availability of the EA W for public review was
published in the Prior Lake American on Saturday, November 18, 2000.
D. The EA W was noticed in the November 27,2000, EQB Monitor. The public comment
period ended on December 27,2000. Comment letters were received on or before the
deadline from the Prior Lake - Spring Lake Watershed District, the City of Shakopee, the
Minnesota Department of Natural Resources, Scott County, Dorsey and Whitney, LLP,
Peterson Environmental Consulting, Inc., the Shakopee Mdewakanton Sioux Community.
A letter from the Metropolitan Council was received after the comment deadline. Copies
of the letters are hereby incorporated by reference.
E. On February 20,2001, the City Council made a negative declaration on the need for an
Environmental Impact Statement. On February 27,2001, the City Council adopted
Resolution 01-19, which approved a CUP subject to 37 conditions (see attachment #1).
F. In 2001-02, the SMSC challenged the City's negative declaration on the need for an
Environmental Impact Statement, which included a request that the Court should either
prevent Ryan from mining or impose additional conditions on its operation, beyond those
already required in the CUP. In its first ruling, the Court upheld the City's negative
declaration, finding that no further environmental review was necessary, based on the
mitigative nature of the conditions incorporated into the CUP. In 2002, following a trial,
the Court denied the SMSC' s request to prevent mining operations, but imposed several
additional conditions on Ryan's operations to mitigate potential environmental impacts.
G. A separate City Ordinance authorized the City to cancel Ryan's CUP if Ryan failed to
make substantial use of the premises pursuant to the CUP with in a one-year period. This
provision is similar to provisions in the Building Code and in Minnesota Statutes. The
City tolled the commencement of that one-year period until the appeal period in the
SMSC Litigation expired. After the litigation and appeal period expired, the one year
time period on the CUP began to run. In January 2004, after staff concluded that Ryan
had not satisfied the preconditions to the validity of the CUP within the one year period
following the litigation, the City cancelled the CUP. Ryan disagreed with the City's
conclusions and procedures, and sued the City. Ryan also contended that the City lacked
statutory authority to impose a one-year term on the CUP or a requirement that an
applicant use a CUP within a one-year period. The SMSC intervened in that action and
aligned itself with the City. In May 2005, cross-motions for summary judgment were
argued, and soon thereafter, a settlement dialogue began.
H. On June 20, 2005, the City Council received a copy of a petition requesting the
preparation of a revised environmental assessment worksheet. The City received official
notification of its RGU status from the Environmental Quality Board on July 1,2005. On
July 18,2005, the City Council denied the Shakopee Mdewakanton Sioux Community's
petition for a supplemental Environmental Assessment Worksheet (Resolution 05-130).
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I. On August 15,2005, the SMSC initiated a lawsuit against the City contending that the
denial of its petition for a supplemental EA W was improper. On January 24, 2006, the
Court issued the Order denying City's motion for summary judgment in SMSC's lawsuit,
for reasons that implied the Court might have agreed with the SMSC's interpretation of
Minn. R. 4410.1000 subp. 5 of the Environmental Revi~w Rules. Following a request for
clarification of the Order, the Court explained that the Court agreed with the SMSC's
interpretation of Minn. R. 4410.1000 subp. 5 of the Environmental Review Rules, that the
City should consider changes in the area surrounding the proposed gravel mine; and that
it would be "a very good idea" to prepare a supplemental EA W.
J. On April 3, 2006, the City Council adopted a resolution declaring the need for an EA W.
Under Minnesota Rules, the City Council is designated as the Regulatory Governmental
Unit (RGU) charged with preparing and making the decisions on the EA W.
K. The EA W was completed in October, 2006, and distributed to the Environmental Quality
Board (EQB) mailing list and other interested parties on October 19,2006. Notice of the
EA W was published in the Prior Lake American on October 21, 2006, and in the EQB
Monitor on October 23, 2006. The comment period on the. EA W expired on November
22, 2006.
L. Comment letters were received on or before the deadline from the Minnesota Pollution
Control Agency (MPCA), the Army Corps of Engineers, the Minnesota Department of
Health (MDH), the Metropolitan Council, the Prior Lake - Spring Lake Watershed
District, and the Shakopee Mdewakanton Sioux Community (SMSC). Copies ofthe
letters are hereby incorporated by reference.
M. On December 18, 2006, the City Council voted to defer action on this decision until
January 16,2006, in accordance with Minnesota Rules 4400.1700, subp. 2a, which allow
the RGU to postpone the decision on the need for an EIS, for not more than 30 days, in
order to obtain lacking information. The purpose of postponing this decision was to
allow staff the opportunity to do further research on the comments submitted by the
SMSC.
III. CRITERIA FOR DETERMINING THE POTENTIAL FOR SIGNIFICANT
ENVIRONMENTAL EFFECTS
Minnesota R.4410.1700, subp. 1 states that "an EIS shall be ordered for projects that have the
potential for significant environmental effects." In deciding whether the project has the potential
for significant environmental effects, the City of Prior Lake must consider the four factors set out
in Minnesota R.4410.1700, subp. 7. With respect to each of these factors, the City finds as
follows:
A. TYPE, EXTENT, AND REVERSIBILITY OF ENVIRONMENTAL EFFECTS
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The first factor that the City of Prior Lake must consider is "type, extent and reversibility
of environmental effects," Minnesota R.4410.1700, subp. 7.A. The City's fmdings with
respect to each of these issues are set forth below.
1. The type of environmental impacts anticipated as part of this project include:
a. Potential adverse affect on groundwater, and to the water supply well
located to the north of the site. The comments from the Minnesota
Department of Health (MDH) addresses the proximity of the Site relative
to the drinking water supply management area (DWSMA) associated with
the Shakopee Mdewakanton Sioux Community (SMSC) McKenna supply
well.
The MDH points out the increased vulnerability of the underlying aquifer
to potential contamination from surficial sources once lower permeability
surficial soils are removed. In response to these conditions, numerous
limitations have been placed on the project. These include limiting the
mining depth and maximum quantity of sand and gravel that can be
removed, prohibiting on-site fuel storage, limiting the equipment than can
be at the Site, establishing specific parking and re-fueling areas, installing
security fencing and monitoring wells. Even with the limitations and the
monitoring wells, mining removes much of the surface material that would
protect the groundwater in the event of a spill. For this reason, there is a
higher potential for groundwater contamination in a mining site than for
regular development. The damage to the groundwater could be done
before it shows up in a monitoring well. This is an issue that may warrant
further study.
b. Impact on surface water due to increased pollutants in stormwater runoff.
Treatment ponds, designed to NURP guidelines, have been included in the
plans for this development to mitigate the effects of pollutants in the
stormwater runoff. Preparation of a Stormwater Pollution Prevention Plan
(SWPPP) is also required prior to any mining on the site. Since the
SWPPP and NPDES permit have not been completed, the concerns about
the impact of potential runoff from the mining operation on the
downstream channels have not been addressed. This impact may require
additional study.
c. Impact on adjacent land uses.
Residential development in the vicinity of the proposed project includes a
58 lot residential subdivision to the north, in which 17 homes have been
built or are currently under construction. To the south of the mining
operation is the Shepherds Path campus. This development will ultimately
consist of a church, companion uses to the church (meeting areas, daycare,
retreat center), 442 senior housing units, a YMCA facility, a youth center,
a medical office/clinic, a bank, and a park and trail system. To date, the
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church and companion uses have been constructed. The youth center, the
park and trail system, and 154 of the senior units are currently under
construction. The EA W does not address the potential impacts of the
mining operation, and the resulting truck traffic and stacking, on this
adjacent use. More study is needed on the following issues: 1) effects
from additional traffic and size of the trucks on roadways, 2) safety of
people traveling in vicinity with those trucks, 3) effects of higher noise
decibels, 4) health effects of dust and diesel for a continuous four-year
period on the church and the elderly who will be living there.
d. Impact on McKenna Road, North Berens Road and other roads due to
trucks from the mining operation.
The traffic analyses completed in 2006 identified some deterioration of the
McKenna Road surface and identified that additional truck traffic would
hasten the deterioration. The CUP documents include inspection of
McKenna Road and road maintenance if deterioration is identified. An
irrevocable letter of credit is required for road repairs by the CUP which
also stipulates that truck traffic from the site travel south on McKenna
Road to County Rd. 42. A sign must be placed at the entrance to
McKenna Road that states "Truck-No Right Turn." The CUP is revocable
for non-compliance at any time. Safety associated with traffic from the
Site was assessed by the 2000 traffic analyses and adequate sight distances
were identified. The approved CUP also requires Ryan to provide a letter
of credit (LOC) in the amount of $1 00,000 to cover any potential damage
to the road. This LOC will be held by the City until the completion of the
project.
While the EA W does address the higher traffic volume, it does not address
vehicles, specifically dump trucks, stacking on the road. The revised
traffic study assumes a stop light at McKenna and 42, which is not
scheduled for installation in the foreseeable future. This effects local
traffic and raises concerns about the safety impact on vehicular and
pedestrian traffic and the noise of several trucks idling. A better
understanding of the safety issues and potential noise and air pollution
effect of heavy diesel trucks idling is needed.
B. CUMULATIVE POTENTIAL EFFECTS OF RELATED OR ANTICIPATED FUTURE
PROJECTS.
The second factor that the City of Prior Lake must consider is "the cumulative potential
effects of related or anticipated future projects", Minnesota R.4410.1700. supb. 7.8. The
City's findings with respect to this factor are set forth below.
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1. The excavation of sand and gravel on this site is limited to 12.91 acres of the 29.6
acre parcel. Any additional excavation will require a new conditional use permit,
which creates the potential for the preparation of a new EA W.
C. THE EXTENT TO WHICH ENVIRONMENTAL EFFECTS ARE SUBJECT TO
MITIGA nON BY ONGOING PUBLIC REGULA TORY AUTHORITY
1. The following permits or approvals will be required for the project:
Unit of Government
Federal:
US Corps of Engineers
Permit or Aooroval Reauired
Wetland Impact
State:
DNR
MPCA
Impact to DNR W aters/W etlands
NPDES Permit; General Storm Water Permit
Local:
City of Prior Lake
LGU - Prior Lake
Prior Lake/Spring Lake
Watershed District
Conditional Use Permit and Grading Permit
Wetland Impact for Wetland Conservation Act
Stormwater Management Plan and Permit
2. The City finds that many of the potential environmental effects ofthis project are
subject to mitigation by ongoing regulatory authorities; however, further study on
the following potential impacts is needed:
a. Effects from additional traffic and number and size of the trucks on the
adjacent roadway;
b. Effect on the safety of people traveling in the vicinity with those trucks;
c. Effects of higher noise decibels;
d. Health effects of dust and diesel for a continuous four-year period on the
church and the elderly who will be living there;
e. Effect on surface water and groundwater in the vicinity;
f. Effect on the SMSC drinking water supply that is within 100 yards of this
area;
g. Effects of stacking of trucks and accessing CSAH 42 from McKenna Road
without traffic light;
h. Potential enforcement issues as it relates to traffic generated by the mining
operation on the other users in the area.
3. An EIS is needed to study these potential impacts.
D. THE EXTENT TO WHICH ENVIRONMENTAL EFFECTS CAN BE ANTICIPATED
AND CONTROLLED AS A RESULT OF OTHER ENVIRONMENTAL STUDIES
UNDERTAKEN BY PUBLIC AGENCIES OR THE PROJECT PROPOSER, OR OF
EIS's PREVIOUSLY PREPARED ON SIMILAR PROJECTS.
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The fourth factor that the City must consider is "the extent to which environmental effects
can be anticipated and controlled as a result of other environmental studies undertaken by
public agencies or the project proposer, or ofEIS's previously prepared on similar
projects," Minnesota R.4700.1700, subp. 7.D. The City's findings with respect to this
factor are set forth below: .
Many of the environmental impacts of the proposed project have been addressed in the
following plans:
1. City of Prior Lake Comprehensive Plan
2. City of Prior Lake Comprehensive Local Surface Water Management Plan
Further study, however, is required on the items listed in Section D, above.
CONCLUSIONS
1. The preparation of the EA W and comments received on the EA W have generated information
adequate to determine whether the proposed development has the potential for significant
environmental effects.
2. The EA W has identified areas where the potential for significant environmental effects exist. Where
possible, appropriate mitigative measures have been incorporated into the project plan. The
proposed sand and gravel excavation is expected to comply with all City of Prior Lake standards and
review agency standards.
3. The EA W does not provide enough information to address all of the potential impacts.
4. An Environmental Impact Statement is required to study the following:
a. Effects from additional traffic and number and size of the trucks on the
adjacent roadway;
b. Effect on the safety of people traveling in the vicinity with those trucks;
c. Effects of higher noise decibels;
d. Health effects of dust and diesel for a continuous four-year period on the
church and the elderly who will be living there;
e. Effect on surface water and groundwater in the vicinity;
f. Effect on the SMSC drinking water supply that is within 100 yards of this
area;
g. Effects of stacking of trucks and accessing CSAH 42 from McKenna Road
without traffic light;
h. Potential enforcement issues as it relates to traffic generated by the mining
operation on the other users in the area.
5. The scope of the EIS is limited to the above factors.
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