The Network recently received an inquiry from a health official about whether local government zoning permits to engage in frac sand mining can include conditions or contemplate modifications that would protect public health. Frac sand mining refers to the production of silica sand, which has increased in the United States significantly in the last few years due to its use in the natural gas extraction method known as hydraulic fracturing. As companies seek out land for mining, they are required in some jurisdictions to apply for a conditional use permit before establishing a mine, which would require the company to specify plans, standards and other aspects of a company’s proposed use of the land. The requester specifically asked about the potential to modify permits after they have been approved and noted the possibility that officials might want to make changes to ensure that mining practices are consistent with new research on the health effects of particulate matter.
The Network researched the issue and provided the official with references to court cases, which held that zoning permit decision may be reconsidered and overturned only in the rare instance of mistake, public necessity or a significant change in circumstances. Furthermore, since a permit holder has “vested rights”, changing a permit after it has been approved would be extremely unlikely. The Network recommended two possible methods to more effectively address public health concerns:
The Network also referred the requester to a recent Network blog post on the topic entitled: “Frac Sand Mining: Legal Strategies to Address Uncertain Health Impacts.”
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