Pine Bluffs firm conditional use permit request tabled

The district courtroom in the Cheyenne County Courthouse filled with members of the public Tuesday afternoon during a Cheyenne County Board of Commissioners meeting as discussion continued regarding an application for a conditional use permit from Pine Bluffs Gravel and Excavating Inc. for the proposed use of a gravel mine to operate a ready-mix concrete batch plant.

The county planning and zoning commission had previously reviewed the application at a hearing Jan. 28 and had unanimously voted to make the recommendation to the Cheyenne County Commissioners to deny the application.

Bill Sydow, a member of the zoning and planning commission, said that the members’ decision had been made based on the proper use of borrow pits and the amount of dust caused by the company during production.

“Borrowed pits could be used for a singular project and that was done. I think the time has passed. We unanimously didn’t approve it primarily because of dust. The dust was seen by a number of our commissioners this past summer and late fall and I personally saw it and couldn’t see through the dust on two occasions,” said Sydow.

“We can talk about the dust mitigation program but where were we last summer with Jake Miller’s plan? Secondly you can plant all you want to on top of those piles of soil but nothing is going to guarantee you will get anything to germinate or live on top of those piles and I think the dust will still be there,” he said.

Sydow also said that the existing surrounding uses on those lands are either specified as agricultural or residential.

“I think we saw last summer that dust control is never going to be accomplished,” said Sydow, who explained the only way to fix the problem would be if Pine Bluffs bought out all the surrounding properties.

Sydow’s discussion about dust mitigation practices came from an argument by Sean Minahan, a lawyer representing the company, and a presentation from Jake Miller on behalf of Pine Bluffs.

“Testimony today will alleviate concerns this board may have with the company’s projects,” said Minahan.

Minahan said that employees and researchers would present material to battle the dust problem and clear up concerns of truck traffic and congestions, trespassing, road conditions and any effects that may ensue on natural resources.

Some of the proposed fixes to the dust problem were less soil scraping and moving of the truck entrance.

“All the top soil scraping was done last summer and that operation is essentially done. We believe that caused most of the excessive dust. The dirt berms that were created from the top soil will be seeded down to decrease dust,” said Minahan. “They will be moving the truck entrance off of County Rd 99 up onto HWY 30 to alleviate the dust caused by that truck traffic.”

Minahan said that there are other gravel companies in the county and that Pine Bluffs feels as if they are being targeted for no reason.

“Here included are three conditional use permits that this board had previously approved in the last 10 years. We are aware of several other pits in the county and up to 14 of them are operating. Pine Bluffs just wants to be treated the same,” said Minahan.

“Not passing the permit would essentially force Pine Bluffs out of town,” he said. “People will say today that they don’t believe that Pine Bluffs was a good neighbor in the last year. But testimony today will show how Pine Bluffs is operating to be a good neighbor today, tomorrow and forever if this commission allows it.”

Pine Bluffs pit manager Doug Keller explained to the commissioners that the initial project began after the company was awarded a contract from the Federal Highway Administration in April with purposes of finishing task orders in Colorado, Nebraska, Kansas, South Dakota, Laramie and Cheyenne County.

“It’s basically to rebuild and resurface the primary hauling roads every year. This year there are 250,000 tons in that contract. We were awarded that contract and I believe had 8,000 ton gravel services in Sidney and East of Sidney. It’s very difficult to find aggregate in our area that is suitable for use on these Air Force contracts,” said Keller.

“We reviewed the Cheyenne County zoning regulations. It states that that is a permitted use if it is used for public improvement projects, and it was our feeling that that was the case. We obtained a transfer permit to use the agricultural water for industrial use out of a well that was located on the site as well,” he said.

Keller said that the company moved out to the site on June 28 and that they were given a deadline of finishing work by the end of October.

He said that commissioner Ken McMillen called him after hearing complaints and decided a meeting wasn’t needed after all. Then the company had received a cease and assist order from Cheyenne County Attorney Paul Schaub’s office that stated they were in violation of the zoning and planning codes and to stop production until a use permit was received.

“We explained our interpretation of the zoning laws and were told that they were permitted for that use,” said Keller.

“It was probably the hottest and driest summer I’ve ever seen here,” he said.

Keller said that Nov. 1 was the last day that gravel was made at the site and that the road project was finished by Nov. 6.

Company management then received a letter from Bob Reynolds, who represented three families close to the property, asking the company to cease operation because of trespassing that had been occurring.

“We responded basically that we didn’t feel like we operated recklessly; 600,000 gallons of water went on that site for dust management. We do more dust control then most normal contractors. Our interpretation was that we were legal on that site and said we would take time to sit down and visit if they had problems. I think this has a long-term benefit to the county,” said Keller.

“For this new project it takes a 12-mile section of Interstate 80 and replaces all the pavement with concrete. We were awarded the gravel contract for that. The project will be over a two-year period and it has a huge economic impact. The roads on HWY 30 will be resurfaced from Sidney to Bronson this summer. These are pipelines of commerce in this area.”

Keller said that he had never heard news of any employees trespassing on residential property until the last commissioners meeting. He said that if he had heard of it beforehand the employees would have been removed from the job immediately.

He said that a large amount of Cheyenne County roads would be resurfaced in the future and he would be willing to work with the county and neighbors of the property throughout the whole process.

Jake Miller, a representative of DOWL HKM (a consulting firm), said that the company had recently developed a well thought out mitigation plan to battle the dust created during production.

“With a mitigation plan you build a record and history to control dust and mitigate any dust leaving the site. This has to be an ongoing process,” said Miller.

“It was a stripping and crushing process last year, this year it is going to be a wet sand process. Paving the roads will reduce dust and if they move the crush facility back they can move it farther away from residential areas,” he said.

Miller said that other processes of reducing dust included, pre-wetting soil before stripping and during stripping, hydro-seeding the soil, minimizing the free fall of the aggregate, working on the leeward side of soil piles, applying magnesium chloride to the gravel site and decreasing the speed limit on the roads to reduce dust.

Keller said that out of the total property leased, if it the property was to total 200 acres only 15 acres would have already been stripped, leaving a lot more to strip to use the ground to full capacity.

Thad Kuntz, a hydro-geologist with Adaptive Resources, Inc., was asked by Pine Bluffs to look into the water issues surrounding the area.

In his presentation to the commissioners he said that he believed the project would not affect the groundwater at all.

“I have found no data that groundwater would come in contact with the pit to cause excess evaporation of the water,” said Kuntz. “In my opinion they won’t expose any ground water in that area.”

“They are only using water on site to wash gravel, they aren’t using chemicals. So my questions is what are you going to contaminate the aquifer with?” asked Kuntz.

Duane Derr, who runs scale houses in Sidney and Kimball as well as trucks, said that safety meetings were held each Monday to make sure employees were aware to not trespass on neighboring properties.

He also said that every Monday the group would talk about not turning around in neighbor’s driveways and not parking alongside the roads.

“All the traffic we had this summer was in the pit. I live off of County Rd 90 and I never saw any traffic,” said Derr.

Derr said that none of the residents had ever addressed him with any problems that they were experiencing.

Jim Kortz, an attorney representing the Craig Harrison, Brad Sutton and Chad Hrbek families, called what homeowners closest to the property had to deal with “a homeowner’s worst nightmare.”

“They moved into the country for peace and quiet and space and that was basically taken away from them overnight. They have been inundated with air pollution in the form of dust, noise pollution in the form of heavy machinery trucks operating, and the trespassing of employees and truck drivers,” said Kortz. “Blowing dust made it hard for them to open doors or windows. Trucks were constantly making noise and it was a sun-up to sun-down operation.”

Kortz said that trespassing also occurred when truck drivers would knock on homeowners’ doors asking to make phone calls, use the bathroom or in one instance use their swimming pool.

“It has essentially devalued our clients’ property overnight. Mr. Harrison’s family had so much difficulty with noise that was keeping them up all night that his kids’ grades were slipping, so they put their house up for sale and it still hasn’t sold.”

“In conclusion, when I read and hear of their preventative measures it reminds me of the old saying ‘fool me once shame on you, fool me twice shame on me,’” said Kortz.

Kortz said that the company has done business before in Cheyenne County and knew that they needed permission and permits to conduct their work. He also said that according to residents Pine Bluffs has continued operations since their apparent shutdown in November.

“Machine trucks are running again. Mr. Sutton can testify that he followed one of the trucks and they delivered a load somewhere in Colorado. If they say it’s going to be an economic benefit to Cheyenne County, what are they doing hauling material to Colorado?” asked Kortz.

Kortz noted that the project had a time period of 6 months to be completed and that time period was up in January.

“They have been operating without proper authorization from Cheyenne County,” he said.

Randy Sutton, who owns property close to the site, said that if the commissioners were to allow the permit to Pine Bluffs they should have to allow permits to all the other gravel companies who have tried to do so in the past.

“I applaud Doug for putting this together and showing the commissioners a need for this kind of thing, and maybe it is needed in Cheyenne County. But if the board is going to grant additional use permits we need to grandfather them back to the original people who wanted to open up additional use permits and allow competition to be there,” Randy said.

He also said that after the initial time he talked to company officials about a problem, No Trespassing signs were posted and further face-to-face communication had been blocked.

“Just because the company has a bid it seems they think they have to take the rock and have that right, regardless of how it affects the neighboring properties or property values,” said Brad Sutton, one of the residents right across the street from the property.

“The sheriff’s office would show a record that they have been contacted frequently with the problems brought up with the dirt, noise, trespassing and people stopping by at night,” Brad said.

“I’ve asked several people including Paul Schaub and the sheriff, what permit are we operating under here? I eat dirt and noise and all this for 6 months and even more than 6 months because they still haven’t quit. They are still digging dirt and gravel preparing for these contracts that they’ve already bid,” he said.

Brad said that it appears that the cement plant is already up and extremely close to the perimeters of his establishment.

“That’s not trying to get along with the neighbors. That is trying to do whatever we felt we could do with the permit. I guess I’m the better neighbor. I didn’t put up any trespassing signs like they did on theirs,” he said.

Brad said that it seems that the company now also leaves a sort of generator running all night that “rumbles like you couldn’t believe.” He said that the 25 to 30 trucks that come in and out of there also sound as if they are on and idling all night long.

Kent From, an employee for Pine Bluffs on the job this summer, said that his feelings went out to the families affected by the dirt in their homes.

However, he said that some of the facts presented by the homeowners were untrue.

“I was a truck driver on that location. We started at 5 a.m. in the morning and the last truck leaving that pit left at 3 p.m. in the afternoon,” said From. “We never had 25 or 30 trucks on the job. When we were all combined we maybe had 25, but they did not go all night. As far as trespassing you can’t get a truck in the turn-in in their driveways.”

From also talked about the weekly meetings and said that they made sure every employee was courteous to homeowners.

“Every Monday morning we were preached that you stay off of other people’s land. We don’t tolerate what has been said that we do. The dust I think has been coming from the pit itself from the height,” he said.

“This is a good company and it feeds a lot of people and if it’s worth losing several people’s incomes over the opinion of three homeowners then I guess I’m headed in the wrong direction,” said From.

In response to homeowners’ frustrations Minahan reiterated that company officials had stated they could be contacted to sit down and talk about any issues occurring around the property.

Regarding the continuance of work on the site, Minahan said that Pine Bluffs had officially been shut down since Nov. 1.

“Pine Bluffs is not the only gravel operation in this county with neighbors. This mitigation plan, given the opportunity, will work and will go into effect when they start their next project,” said Minahan.

Commissioner Steven Olson asked if Pine Bluffs would be willing to shut down operations if the mitigation plan is to fail.

“Part of the mitigation plan is if the plan is not working the plant shuts down,” said Minahan.

Brad Sutton then presented a video to the commissioners that he had taken on his phone of trucks and scrapers moving around the site taken on Feb. 6, when production was supposed to be shutdown.

Pictures that were taken by a sheriff deputy on Feb. 6 of moving equipment was also presented.

Cheyenne County Sheriff John Jenson said that residents surrounding the site had contacted him early on regarding problems neighboring the site. But he said that at the time of the pictures nothing had been witnessed by his office being loaded onto the trucks, just that the trucks had been moving.

“When I say we aren’t working I didn’t mean no traveling in and out, but there has been no gravel recession in that pit since Nov. 1,” said Keller. “We’ve done a minimal amount of pits and wash pits but that’s it.”

The commissioners decided to table the matter until they can properly take all of the information presented under advisement and can make a decision with all three commissioners input.