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How the frac-sand industry escaped environmental review

frac sand
Frac-sand mining is rapidly expanding in bluff country in southeastern Minnesota and western Wisconsin with minimal consideration of long-term impacts to this unique landscape.

Lost in the uproar over silica sand mining is a serious threat to Minnesota’s environmental-review procedures with potentially far-reaching implications. And it appears no one in state government or our congressional delegation is taking this threat seriously.

Peter L. Gove

In the historic Mississippi River town of Wabasha, a clever and aggressive Canadian sand company found a way to flout Minnesota’s environmental-review measures. They leased land from a railroad and then claimed exemption from state and local review, using the railroad’s federal right of pre-emption over state and local zoning laws. This longstanding privilege basically says that state and local governments cannot restrict a railroad’s right to operate in interstate commerce.

In a cautionary tale for many communities in our region, this federal exemption was honored in Wabasha. And, the same could happen anywhere a railroad has a large enough rail yard to accommodate tenants and their operations. In this case, a local government was overwhelmed by a well-funded private company.

As background, in December 2012, a Wabasha citizens group asked the Planning Commission to require an Environmental Assessment before granting a permit for a Canadian company’s trans loading (from truck to rail car) facility that would bring 500 sand-hauling truck trips daily through this small river town from Wisconsin over a Mississippi River bridge. These residents felt there was too little information about safety and environmental risks to their community without an assessment to inform the conditions placed on a permit.

Request denied

That request was denied at the advice of the Wabasha city attorney when the applicant claimed exemption from environmental review under the Federal Surface Transportation Act.

Nothing dissuaded the Wabasha City Council. Not case law that federal pre-emption applies “only to state laws with respect to regulation of railroad transportation,” and not to a lessee of railroad property. Not the Minnesota Environmental Quality Board’s suggestion that an Environmental Assessment was in order. And, the city chose not to request a clarifying opinion from the attorney general. One can only conclude these officials were intimidated by the threat of litigation by project sponsors.

In the end, the Wabasha frac-sand loading facility was approved. Limited permit conditions were added, but without the rigorous analysis of an Environmental Assessment. And apparently justified because a company completely separate from the Canadian Pacific claimed that railroad’s right of federal pre-emption from state and local laws and regulations.

It is hard to imagine that Congress intended the Surface Transportation Act to exempt from state oversight a company that is simply leasing railroad property and essentially has nothing to do with the unencumbered operation of a railroad.

Rapid expansion in bluff country

Frac-sand mining is rapidly expanding in bluff country in southeastern Minnesota and western Wisconsin with minimal consideration of long-term impacts to this unique landscape. This mushrooming industry is essentially unregulated in Wisconsin, with the DNR overwhelmed with monitoring over 100 facilities. In Minnesota, the Legislature recently approved some protections for sensitive trout streams. Given the opposition of the frac-sand industry and its allies in organized labor, more comprehensive legislation was defeated despite the support of Gov. Mark Dayton and the able leadership of Sen. Matt Schmitt and Rep. Rick Hansen.

Again, this is only one industry. The Wabasha pre-emption precedent could be used in other communities perhaps for a fertilizer plant or metal shredder.

Unless the governor, attorney general, legislators or members of our congressional delegation act to clarify the appropriate use of federal pre-emption, what happened in Wabasha can happen in any Minnesota community with a rail line.

Perhaps one step is a field hearing in Wabasha by members of the House Environment and Natural Resources Committee and Senate Environment and Energy Committee to examine this pre-emption case as well as a broader examination of the likely public-health, transportation and property-value impacts of sand mining, including in Wisconsin’s Trempealeau County, ground zero of our neighboring state’s frac-sand industry.

Peter L. Gove, a retired St. Jude Medical, Inc. executive, lives in St. Paul and has worked in government and as a citizen to protect land and water resources for more than four decades. He chairs The Trust for Public Land’s Minnesota Advisory Board, founded Friends of the Mississippi River, and is the past chair of the St. Croix River Association.


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Comments (4)

  1. Submitted by Jon Kingstad on 07/01/2013 - 09:32 am.


    Is the problem with the frac-sand mining or the transportation and loading and unloading of the frac sand onto rail cars? I would agree the transportation part of the operation is outside of local regulation but isn’t the problem with frac sand mining in the “mining” part of the operation? My question is what about environmental impact from the mining operations in Wisconsin?

    I would agree that there are far too many holes in the federal and state environmental policy laws. The only reason any environmental impact statement is being performed for the Alberta tar-sands pipelines is because the pipelines want a Presidential border crossing permit. Strictly speaking, there is no federal law in the sense of an Act of Congress which even requires this. Presidential executive orders based on authority to regulate crossings by electric transmission lines and natural gas pipelines and telecommunications lines have been extended to include oil pipelines. But amazingly, there is no federal law requiring a certificate of public convenience and necessity for an oil pipeline. There is for a natural gas pipeline but not an oil pipeline even though the rates for oil pipelines have been regulated since 1910. So under the federal National Environmental Policy Act, an EIS is required if railroads raise their rates on recyclables but not if they load and carry something like silica sand which may have more direct and negative environmental impacts!

  2. Submitted by Ellen Brown on 07/01/2013 - 02:26 pm.

    it’s both…and more

    Yes, there is definitely a problem with silica sand mining. And there are also negative impacts of processing the sand and transporting/transferring it to rail. For example, 500 truck trips a day from one Wisconsin mine, each trip creating noise, potential fugitive dust and community welfare issues.

    But the point Peter Gove addresses goes beyond both and would be important even if frac sand weren’t involved.

    The company that flouted environmental review of their sand transfer facility in Wabasha did so on the bogus grounds of federal protection from state law because their facility is on (leased) railroad property. The federal pre-emption for railroads was meant solely to keep state and local jurisdictions from interfering with railroad operations…for example by limiting speeds or hours of train operation or some such.

    As the author notes, the Wabasha case of asserting pre-emption for a facility unrelated to railroad operations could set a precedent that would enable any sort of business in any community to evade environmental review simply by locating on railroad land.

    It is a travesty in Wabasha and has the potential to be a disaster statewide.

  3. Submitted by Tessa Schweitzer on 07/01/2013 - 09:19 pm.

    Thank you Mr. Gove for this article and excellent reporting!!

    What really, really T’s me off is that I had contacted the Wabasha Area Frac Sand Information on Facebook last fall to alert them to the fact that Superior Sand Systems was NOT registered with the Minnesota Secretary of State’s Office to do business in Minnesota. They intended to turn the info over to the Wabasha City Attorney, I believe. Low and behold, Superior Sands was registered in January 2013–AFTER they had threatened Wabasha with the railroad law. Something is going on in the area with city attorneys caving. Whether out of fear or some sort of self interest or pressure–I don’t know. St. Charles’ city attorney did the same–counseling the city not to impose an outright frac sand processing ban in the City of St. Charles at the request of the Concerned Citizens group with 900+ signatures. Winona’s hands always seem to be “legally” tied in dealing with regulating the overwhelming diesel traffic they are faced with as a result of frac sand mining and processing. One route takes a sharp turn off of highway 14 right before the intersection with 61 onto a road that does not look like it can handle a lot of weight in the St. Mary’s University neighborhood. They’ll be running night and day on residential streets! It gives the impression of powers of which our state and local gov’ts are might afeared!

  4. Submitted by Rod Loper on 07/02/2013 - 08:36 am.

    Corporate lawyers triumph everywhere

    From the White House on down from world trade agreements to environmental, financial and labor regulations they rule our government. Wait to see the rules for the Trans Pacific Partnership
    now under wraps. Local state and federal government is to be superseded everywhere if they impede profits.

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