BOARD OF COMMISSIONERS'
Tuesday, August 7, 2001
Sheldon High School Auditorium
a. SECOND READING AND PUBLIC HEARING/Ordinance PA 1164/In the Matter of Amending the Lane County Rural Comprehensive Plan to Revise the "Significant Mineral and Aggregate Resources Inventory," Redesignate From "Agriculture" to "Natural Resource: Mineral," Rezone From "E30/Exclusive Farm Use" to "SG/Sand, Gravel & Rock Products" and Allow Mining For 575 Acres of Land Pursuant to Lane Code 16.400 and 16.252 and the Goal 5 Oregon Administrative Rules (OAR 660-023); and Adopting Savings and Severability Clauses (File PA 99-5996; Eugene Sand & Gravel). (NBA & PM 7/24/01) (Thom Lanfear)
Commissioner Anna Morrison presided with Commissioners Bill Dwyer and Peter Sorenson present. Bobby Green was excused. Cindy Weeldreyer was present for the first twenty-five minutes. County Administrator Bill Van Vactor, Assistant County Counsel Stephen Vorhes, Recording Secretary, Melissa Zimmer, Thom Lanfear and Lloyd Holtcamp were also present.
Morrison explained the decision was subject to plan amendment and rezoning criteria and the Goal 5 Rule cited in the agenda cover memo and the attachments. She said that evidence and testimony must be directed toward the approved criteria and failure to raise an issue to enable a response may preclude any appeal to LUBA. She said there would be an opportunity for submission of information and this was the opportunity for those present to enter information into the record. She said only the persons who qualify as a party may appeal Board decision to LUBA.
Morrison asked for any ex parte contacts due to conflicts of interest.
Weeldreyer stated she had contact with people who sent her E-mails. She had not received any information that had biased her in any way. She had no conflicts of interest.
Dwyer stated he had contact with a few people and advised them it was a quasi-judicial proceeding and if they wanted to make a statement they needed to do it at this meeting to get into the record. He stated he read the editorial in The Register-Guard but it did not influence him.
Sorenson stated he was in contact with the farmers who attended a public forum he held on the Willamette River about three years ago. He had contact with Wade Skinner, Jim Weaver, he had two meetings with Mike Alltucker and the staff of Eugene Sand and Gravel. He had E-mails and letters that he forwarded to Thom Lanfear for inclusion into the record. He read newspaper articles and told the people he came in contact with that he would keep their views in mind and that none of the opinions or information presented to him would impair his ability to fairly and partially decide this matter and he had no conflicts of interest.
Morrison said in August 1999, she visited the site with the Harpers and the Alltuckers. In October 1999 she attended a meeting at the Beacon. House that was called by the opponents. In July 2000 she met with the applicants, with Randy Henderson, Lori and Mike Jenson and in September 1999 she brought a dump truck over to try to negotiate the corner at Beacon and River Road to see how difficult the turn would be. She had E-mails, letters, newspaper articles but none of the conversations or items forwarded staff would preclude her from making an unbiased decision.
Thom Lanfear, Land Management, reported the applicant for the proposal is Eugene Sand and Gravel and the subject property is located north of Eugene on River Road, comprising map and tax lot numbers: Map 160423, Tax Lots 301, 900, 901, 1001, 1400, 1401, 1600, 1700 and 1701. He said Map 160426 comprises Tax Lots 100, 200, 300, 500 and 900. He said Map 160427 was comprised of Tax Lot 200.
Lanfear noted the map that was mailed out with the notice did not have two of the tax lots shaded in and that map was corrected in the Board packet with a supplemental cover memo. He noted the packet that was prepared for the Board summarized the Goal 5 Rule and issues that had arisen during the Planning Commission review, summarizing the Planning Commission recommendation to the Board.
Lanfear said the Goal 5 Rule is the portion of the administrative rules that applies to the review of a mineral and aggregate proposal and it requires the governing body to determine whether a site is considered significant in terms of quantity and quality of the resource. He said if the site is considered significant, the next step would be to decide if any significant conflicts that arise from the mining could be reduced to a level where they are no longer significant. He noted the rule was summarized in a handout that was available.
Lanfear noted the conflicts that are contained in the Rule that are eligible for review by the governing body fall into conflicts created by discharges from activity, consisting of conflicts due to noise, dust, groundwater and flooding. He said those conflicts must be minimized to a level where they are no longer significant. He said the impacted area for those discharges begins at 1,500 feet out from the proposed mining site and that distance could be expanded if there is evidence that the conflict extends out further than that. He added other conflicts to be reviewed are with Goal 5 resources that include riparian habitat, wetlands and sensitive fish habitat. He added another category of conflicts to be reviewed are conflicts with agricultural practices and the review of the conflict minimization and what it takes to decide if a conflict had been minimized to a point where it was no longer significant. He noted that requires the proposal to come into conformance with an applicable standard. He stated if the noise conflict exceeds the DEQ standards when the proposal is reviewed, and if the applicant could come forward and propose minimization techniques that would reduce the level of conflict to bring the noise level into conformance with the DEQ standard, then that conflict had been considered to be minimized. He added that was true for any of the conflicts to which there is an applicable standard. He said another category of conflict is one of agricultural practices and whether those conflicts are minimized is determined by a different set of standards. He stated the standard for that minimization is whether the conflict would cause a significant increase in the cost of agricultural practices or if it would cause a significant change in agricultural practices.
Lloyd Holtcamp, Transportation Planning, explained that they have two goals under traffic that are being addressed according to the Oregon Revised Statutes and Plan Amendments. He said the goals must be addressed when considering a plan amendment. He noted with Goal 5, it is to identify a conflict to the nearest intersection with an arterial, looking at site distance, road capacity, cross sectional elements, horizontal and vertical alignment and similar items in the Transportation Plan and adopting ordinances. He said under Goal 12 (Transportation Planning Rule) the criteria is to address significant impacts that need to be examined to the identified function, capacity of the road, performance standard and the level of service measured by the highway capacity. He noted in the supplemental memorandum, that staff had commented on what they think were the impacts that needed to be mitigated. He said they have a capital improvement project in the area at the intersection of River Road and Beacon, as the northern terminus of the River Road project that is scheduled for Fiscal Year 2003.
Lanfear explained they had copies in the lobby that contained all of the criteria, staff analysis and summary of what the Planning Commission did. He noted that all of the documents were available on the Lane County website. He said the items of the record consist of 760 separate items that are available for review in his office and or in the Board office. He said they had received additional items including a report from Ross Penhallogen, a report from Ed Whitelaw, Mark Chernak, environmental scientist, letter from DLCD addressing Goal 5, a letter from fish and wildlife, a letter from Tom Boyette of ODOT and submittals by both Eugene Sand and Gravel and Thistledown Farms making suggestions about the open record period.
Lanfear noted the Lane County Planning Commission held three hearings on this matter and upon their deliberations, they found that the site was considered significant in terms of quantity and quality and they reviewed the conflict minimization and found that based on the record in front of them, there was not enough information to recommend an approval. He said they identified the need for the applicant to further address noise, dust, traffic and impacts to agricultural practices.
Morrison asked if Holtcamp had conversations with ODOT around the issues of traffic.
Holtcamp responded the contact he had with ODOT staff had been with Tom Boyette, centering on holding funds on deposit for improvements at the ramps for the Northwest Expressway at Beltline. He noted there was an interpretation that Lane County did not need to hold those funds for ODOT.
Morrison said that Public Works was working on the expansion and width of Irvington Drive. She noted that Spring Creek had been mentioned in that area. She wanted to know as they go forward with the issue if they could incorporate the whole flow pattern with Irvington even though it had nothing to do with the application.
Lanfear wasn’t sure how close it would get to Spring Creek and whether that road was already in the floodplain. He noted part of the proposal would increase the flood levels in that area.
Morrison noted if they had a potential problem in one area and it had been identified on Irvington Drive, that whatever decision the Board come up with, that it impacts the whole system so there would be no future problems.
Sorenson asked if the application had been changed since the Planning Commission meetings.
Lanfear responded the proposal had not been changed except to the extent that they are proposing additional dust minimization measures.
Mike Alltucker, President, Eugene Sand and Gravel, stated he represented the 200 hard working men and women working at Eugene Sand and Gravel. He said there are about 500 people that bring quality sand and gravel products to the community every day. He said his employees share in a 100 year tradition of helping to build the community. He said their mission is to become the premier supplier of products and services in the industry but that depended upon their securing future aggregate reserve.
Steve Pffeifer, 900 S.W. 5th Portland, explained with one exception, concurred with staff and the Planning Commission on their assessment. He said that the Goal 5 Rule is an unusual regulatory scheme as it relates to aggregate. He said prior to 1996, plan amendments processed for an aggregate extraction overlay base zone, went through the normal zone change and comp plan process and were largely a matter of local policy. He said the state recognized a different approach in siting aggregate projects and they chose a different route in the Goal 5 Rule. He said they chose to preempt local comprehensive plans and zone map amendment criteria for imposing comp plan designations and zone change criteria. He noted there were only two other instances in the state where they had done that with land siting: light rail siting in the metro area and prison siting throughout the state. He said in those cases, preemption occurred in the same way, local plans, local ordinances are off the table and the policy choice is removed from local government.
Pffeifer noted the comp plan and zone map amendment criteria were not on the table. He said it was the Goal 5 Rule that applies and it is a factual determination that a policy choice had been preempted by the state. He said there were five conflicts that had to be addressed as part of a conflict minimization process in an aggregate: dust, noise, other discharges, conflicts with inventory Goal 5 resources, and agricultural conflicts. He stated anything not on that list is not eligible for consideration. He said a conflict has to be significant. He said if a conflict is identified and the conflict the state decided was subject to other state or federal regulation, the state decided under the rule that if an applicant could demonstrate that the other body of regulation was met, the conflict is deemed minimized and local discretion disappears. He said to the Board that at the end of the process if they decided the conflicts had been identified, the resources found to be significant based on the evidence in the record and they considered the measures on whether there is minimization of the conflict, it notes what the test is for minimization. He said it needed to be that the conflict is minimized to the extent that it is no longer significant. He added it didn’t not need to exist, it needed to be no longer significant. He noted it was up to the Board to make the interpretation of significance as to when a conflict is minimized to the point that it is no longer significant. He said the Board had to take all the information they heard (pro and con) of the issues and decided whether the conflict had been minimized with the measures proposed.
With regard to the agricultural conflict question, Pfeiffer noted that LCDC decided by rule that the applicant demonstrate that there not be any significant increase in the cost of accepted farm practices in the vicinity.
Jeff Tross, Land Use Planning Consultant, 1720 Liberty St. S.E., Salem, explained that one of the questions that had surrounded this proposal was why it occurs in the EFU zone at all. He noted in the Willamette Valley, high quality sand and gravel deposits are the result of riverborne depositions and the natural geological process that is responsible for sand and gravel deposits and are responsible for the soils that support farm use. He added that farmland and gravel are co-located. He noted the EFU zone itself provides for a wide variety of natural resource activities besides farming. He said it is expected that this type of use will occur in the farm zone and it was intended for these uses to co-exist with farm activities. He said this position was confirmed in a letter that is a part of the record, File Record #396 (a letter of April 3, 2000 from Doug White, from LCDC) to Mr. and Mrs. England who reside in Eugene. He read portions of the letter into the record. He noted that aggregate and agriculture co-exist in the EFU zone throughout the Willamette Valley and there are exhibits in the record from the Planning Commission explaining that point He noted there was a working report in 1982 prepared by the County for mineral and aggregate resources. He said the report recognized that the County’s sand and gravel resources were mainly restricted to the floodplains of the major rivers and along the main stem of the Willamette River north of Eugene. He said the report noted that these areas would be sought out as future sources of supply for high quality sand and gravel aggregates. He said the application was consistent with the efforts of public agencies to plan for future aggregate resources.
Tross noted the major goal of the application is to show that the proposed operation would meet the adoptive standards and would not result in significant impacts to surrounding activities. He stated this aggregate operation would be characterized by incremental use and progressive reclamation. He explained the information that they had provided to evaluate the potential for conflicts with other activities was based on a worst case scenario that would occur under actual operating conditions. He said this proved that the potential conflicts could be minimized even at a greater intensity of activity than is planned to take place.
Tross stated the Planning Commission agreed that most of the Goal 5 requirements were met including being a significant site. He said the question of noise, dust, traffic and impacts of the proposal on surrounding farming activities would be addressed by the testimony.
Ralph Christenson, EGR & Associates, 9535 B Prairie Road, Eugene, stated their job as consultants was not to minimize what the conflicts were but to identify them and find a solution that was viable, practical and would minimize the conflict. He noted the Planning Commission did a thorough review of the record that was presented and came to the conclusion that the resource is one of significance, and it did meet the quantity and quality criteria and that a number of issues and conflicts had already been demonstrated to be minimized including flooding issues, groundwater, riparian, wildlife, endangered species, wetlands and greenways. He said the four issues that they left open were specific issues regarding dust, noise, traffic and dust impacts to farming. He noted all of the conflicts with dust had been minimized except one. He stated that at the project boundary they would exceed the LRAPA standard for dust. He said the standard is 3.5 grams per square meter per month (approximately a level teaspoon of dust). He said their response to that was to go back to the operational plan to minimize that impact and they replaced what was in the plan originally with a sprinkler system along the entrance road that would keep the road wet and increase the frequency of watering within the operational area of the facility. He explained they were then at 3.3 grams per square meter per month, under worst case conditions and they met the LRAPA standard.
Christenson explained with noise the issue was whether they used the right measure technique. He said they did not use the DEQ’s noise measurement procedures manual for the ambient noise levels as they were not as protective as the measurement system they did use. He noted there was confusion around this so they asked John Hector, DEQ, if they had used other type of techniques. Hector said they had used other techniques because they were appropriately protective. Christenson explained they went back out and tested, (using the manual procedures) and the ambient noise level was found to be higher using the procedures in the manual rather than the procedures they had used. He noted when they had gone out to measure the noise levels on River Road, they found there were some differences, but they were not significant enough so they wouldn’t meet the DEQ standard for the hourly statistical noise level.
Christenson said an issue was whether the conveyor system had less noise impact than trucks passing by. He noted a conveyor system was different than a truck passing by using the same amount of material. He explained the conveyor system has a constant sound and a truck has a sound that rises and falls and overall, the truck would produce more noise. He said a conveyor system is static, sitting in one place and with a static system they could take all the measurements necessary to meet the standards. He noted the system would meet the standard because it could be covered or changed for making quiet systems. He said if they had met all the requirements, then they had met the DEQ standards for noise, and they had met the minimization standard.
Jim Banks, Traffic Engineer, 4672 Village Plaza Loop, Eugene, explained for over a year they had been meeting with the county and the state to ensure that they addressed all of the transportation issues related to the site. He said they had reached full agreement on the impacts and mitigation for the project. He noted there were three unresolved issues at the Planning Commission, the enforceability of the haul route, questions about the trip, generations for the site and comments regarding the funding for improvements at Northwest Expressway and Beltline.
Banks explained that based on an extensive review of the history of Eugene Sand and Gravel operations at their current site, their analysis showed that there would be a maximum of 45 round trips (or 90 total trips) of trucks going to the site. He noted that over half of the time the round trips would be one-third that number or less. He said at the Planning Commission there was a count taken at the existing site that showed numbers at their maximum level. He said the persons taking the count didn’t understand the operations at the current Eugene Sand and Gravel site as the existing site has not only the operations at the location, but there was a separate operation north of the River Ridge golf course. He said the Eugene Sand and Gravel operations going from their south to north locations would not be happening at the other site. He noted at the existing site there are trucks coming in and out for the truck maintenance facility. He said it showed a truck count that would have been the maximum but they showed less trips at the new site.
Banks noted with the expenditure for a signal at Northwest Expressway and Beltline that Eugene Sand and Gravel had agreed to pay its proportionate share. He said the issue was who takes the money and it turned out the state did. He said that Eugene Sand and Gravel had agreed to overlay the portions of the haul road that had been requested by the Public Works staff to provide the widening at Beacon Road and River Road and they were in agreement with all impacts. He said they had investigated and mitigated all impacts under Goals 5 and 12 and the appropriate mitigation had been provided for and approved and the project would not cause any facility to fall below its planned mobility standards.
Bruce Andrews, Andrews, Doyle & Associates, 893 Creekside Drive, Salem, stated that Eugene Sand and Gravel retained them to evaluate issues raised in the Lane County Planning Commission’s staff report on the potential siting of a sand and gravel mining facility near River Road. He said the staff raised a number of questions regarding potential impacts on agriculture and agricultural practices. He said their team addressed the agricultural activity in Lane County and the surrounding area of the facility. He noted their assessment was entered into the record in Exhibit 702 (B). He said they reviewed and analyzed a number of research reports submitted into the public record regarding the effects on dust and livestock. He said the research was analyzed in relation to Lane County area agriculture. He noted they also conducted their own search related to dust and agricultural crops. He said the assessment provides an analysis of potential conflicts with agricultural practices in the area surrounding the proposed Eugene Sand and Gravel facility. He said they were asked to study the minimization of conflicts from the proposed facility with agricultural practices under the provision of ORS 215, 296, 1 to 215.296(1)determine that the use will force a significant change in accepted farm or forest practices on surrounding lands devoted to farms or forest uses or significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use. He said with the agricultural assessment, they examined and described the agricultural activities and practices surrounding the facility. He added they reviewed the concerns about potential conflicts with agricultural practices expressed in the public record, reviewed research reports (including those submitted into the record) on the affects of dust deposition on plants and agricultural crops and provided an analysis of the report. He said they also conducted research literature on dust and asphalt processing in relation to agricultural activities, reviewed concerns expressed about potential impacts from asphalt plan omissions on greenhouse, covers, on farm, family and worker health, on vegetable research plots and on the ability to obtain and maintain organic crops certification. He said they reviewed the view expressed that persistent agricultural chemicals might be released into the environment by means of dust, top soil and exposure to flood and groundwater.
Andrews explained they provided a brief summary of potential conflicts with agricultural practices from noise, noxious weeds, surface and groundwater, wildlife displacement, increased truck traffic and soil erosion. He noted they proposed mitigation measures for the potential conflicts.
Andrews stated, based on the information in the record they developed, they determined that no applicable evidence had been submitted or encountered that demonstrates the potential dust impacts at the predicted dust deposition rates with the proposed Eugene Sand and Gravel facility would have a significant impact on agricultural practices in the surrounding area. They determined there was no applicable evidence or documentation that had been submitted or encountered that demonstrated the potential impacts from asphalt plant emissions predicted from the proposed Eugene Sand and Gravel facility that would have a significant impact on agricultural practices including organic farming practices in the surrounding area.
Andrews said they had determined that no evidence had been submitted or encountered that demonstrated potentially hazardous levels of persistent agricultural chemicals exist in agricultural soils within the proposed facility and had determined that gradual conversion of less than 575 acres of farmland to aggregate mining operations would not have a significant impact on farmland value or rental rates in Lane County. He said they had to determine that dust from mining had been adequately mitigated and expected levels of dust after mitigation would be too low to produce the effects that adjacent farmers were concerned about. He noted the concerns expressed by opponents were not based on site-specific evidence and did not consider the mitigating factors proposed and relied on information that was speculative or unrelated to the actual situation. He said farms operating near or next to numerous sand and gravel operations had successfully worked with neighboring facilities to mitigate the affects from dust.
Andrews said the evidence submitted into the record confirms their overall position. He said they reviewed the dust mitigation plan offered by Eugene Sand and Gravel and reviewed the air quality evaluation summary prepared by CH2M Hill Industrial Design Corporation. He said the worst case scenario (not considering rainfall) would be a maximum dust deposition rate of 3.3 grams per square meter per month at the property boundary. He noted when normal rainfall is factored in, the dust deposition rate ranges from 1.1 to 2.1 grams per square meter per month at the property boundary and the surrounding areas would experience lower rates of dust deposition because the predicted dust deposition rate decreases rapidly with distance from property boundary. He commented that the CH2M study indicated that in the driest month (without precipitation) dust accumulation at the River Road farm stands would be 0.1 grams per square meter per month. He explained that it would compute to a teaspoon full of dust over a square meter at a maximum rate with no rainfall. He said their team realized that excessive dust could have a detrimental affect on sensitive crops. He said dust could pose a problem under certain conditions. He said that a good working relationship had led to the development of mitigation measures that eliminated potential conflicts. He said the dust levels from the proposed Eugene Sand and Gravel facility would be well below the levels cited in the research reports and no evidence refutes their conclusion that the mitigated dust levels would have no adverse affects on neighboring crops.
Andrews explained it was their opinion that with the implementation of the proposed mitigation measures for potential conflicts with agricultural practices, the siting and operation of the proposed Eugene Sand and Gravel facility would not force a significant change in accepted farm practices and would not significantly increase the cost of accepted farm practices on surrounding lands.
Mike Alltucker said everyone hates their industry, but it is an industry that is hard to live without. He stated everyone in Lane County uses 12 to 15 tons of aggregates every year per person. He noted that each new home that gets built uses about 200 tons of their product. He gave a slide presentation. He noted they had to find a site that was close to the community with deep reserves and it had to be 60 feet deep. He also noted they had to find a site with willing sellers and finding that site with all the criteria was difficult and this was the only site that met all the criteria. He said at this location there is between a 30 to 40 year reserve and will create a rich wildlife area. He said they will be setback 1500 feet from the river and there will be no mining in the greenway. He noted that less than half of the 550 acres would ever be used as a resource, with the rest remaining in open space and preserved setbacks. He said they would protect the air quality by process control. He said they would monitor and protect their neighbors' groundwater. He said due to a neighborhood meeting that was held, they had modified their haul road.
Alltucker stated that land use law recognizes that good gravel may be adjacent to good farmland. He said they had spent the last three years designing a plan that addressed all the concerns that would be raised by the community. He said it was important to their employees and to the community and without their company, the depletion of other resources accelerates and other companies would have to face the same issues they are facing now. He said they had designed a model plan that would be held as a standard in the future. He said they had submitted their application to Lane County over two years ago. He said the delays had only focused their needs for aggregate more. He said they have to purchase aggregate from one of their competitors. He said they work hard at being a good neighbor and want to continue that into the future. He asked the Board to give consideration to their application and move quickly to adopt their plan.
Dwyer declared that he used to drive a truck for Eugene Sand and Gravel and he served on the committee in the legislature where this bill came from. He was familiar with the history of the conflicts between farm and aggregate. He asked if wells drawn down from adjoining neighbors might be mitigated by drilling deeper wells.
Christenson responded there was a limitation to the ability to drill deeper wells because the geology of the site was that the upper gravel tend to be limited in depth and under that the more cemented gravel doesn't produce water well. He noted the wells that were shallow (25 foot range) could be depended for more water. He said for the wells right by the property, deepening wouldn’t help and other means would have to be supplied.
Dwyer asked if any additional drilling for wells would have to be at the adjoining owners' expense.
Christenson noted that water law in the State of Oregon requires that if there is a water right on the well and someone else’s activity causes them to be unable to get their usual and customary quantity of water, then whoever did the other impact that causes them to lose the usual and customary quantity of water has to cease and desist whatever they did that caused their usual and customary water to go away.
Dwyer asked how they reached the proportionate share of costs for the roads.
Tross said there were traffic signals at Northwest Expressway and Beltline that were not now warranted. He said the need of the signals was based on 15 years of growth in traffic other than Eugene Sand and Gravel. He said they came up with different alternatives for the County and the State to review. He said they studied what the volume capacity would be at the intersection without any Eugene Sand and Gravel trucks and what the increase in the total would be based on adding Eugene Sand and Gravel .
Sorenson asked besides the agricultural conflict in Goal 5, what the other four were.
Pfeiffer responded dust, noise and other discharges with regard to uses that are sensitive to such discharges. (OAR 660-23-180 (4b).) He added potential conflicts to local roads used for access and egress to the mining site within one mile of the entrance to the site, (unless a greater distance is necessary to include the intersection with the nearest arterial in the comp plan) and conflicts with other Goal 5 resources within the impact area.
Sorenson asked if there were any specific state rules under agricultural conflicts.
Pfeiffer explained what the Goal 5 Rule does under (4c), to determine whether measures would minimize conflicts to agricultural practices, the requirement of ORS 215.296 shall be followed instead of the requirements of the section. He noted the commission cross-referenced the rule to the ORS 215.296 that is to be applied to all non-farm use applications in EFU zones.
Sorenson noted the farms stated there was a conflict but the proponents for the gravel pit said there was no conflict. He wondered what the agricultural conflicts were.
Pfeiffer responded to determine whether proposed measures would minimize conflicts to agricultural practices, that ORS 215.296 has a two part test. He said their interpretation was cross-referencing directly to the statute, referencing accepted farming practices and whether there is a significant increase in the cost of the practices in the vicinity or a significant change in the practices in the vicinity. He said if there was, there would be a failure to minimize.
Sorenson noted there was no showing of a significant increase in the cost of farm practices and there had been no showing of a significant change with farm practices.
With regard to the testimony to date, Pfeiffer noted there were two different types. He noted they had specific analysis based on the surrounding uses. He said the Planning Commission heard a broader set of analysis or more conclusions. He said the Board had to determine the specificity and the credibility of it.
Sorenson noted they had dust, noise and other discharge conflicts and he asked if flooding was a criteria.
Pfeiffer replied flooding was a discharge .
Sorenson noted that Andrews said there was no significant change in farm production processes or in the cost of production and there was no applicable evidence submitted. He asked Andrews if he was basing it on the evidence in the record.
Andrews responded that based on the evidence in the record, the crops that are grown, the mitigation plan that is offered by Eugene Sand and Gravel and the experience of other farmers in similar type settings experienced no adverse affects being sited next to a sand and gravel operation.
Sorenson asked if there would be any more intense flooding if the proposed project was approved.
Christenson responded that in a 100 year event, they indicated that in a relatively narrow band near the center of the project, there would be a rise of .42 feet. He noted as they moved toward the north and south boundaries of the project, it drops off to a rise of an inch and then it goes away. He stated they modeled that with the entire project completely diked up and with a mitigation channel they put across the site in order to let the flood waters through. He said it was his opinion (and the standard set by FEMA) that flooding would not be a problem.
Morrison asked what would happen if the computer models were wrong. She asked how they would evaluate the numbers that were put in.
Christenson said they use the worst case scenarios. He said they skewed everything as hard as they could, producing as much dust as was possible with the mitigation measures they were going to put on it. He said the consultants had used the measurements that were most conservative. He said for the noise measurement, they used a method that was more stringent than the prescribed method by the state’s own procedures manual.
Morrison asked if there were any violations with LRAPA using the systems they have in place now on the current site with regard to dust.
Candace Hatch, Bridgewater Group, 4500 S.W. Cruiseway, Lake Oswego, responded the record showed there had been some complaints in terms of dust and that there had been additional measures put in place for the dust. She said she had not seen any with regard to violations. She noted the new facility will have newer pollution control equipment, it would be more efficient with lower emission standards and will produce less emissions than the existing facility.
Morrison asked about the DEQ requirements for noise.
Christenson said there were no permits but a standard and if they didn’t meet the standard, the DEQ could fine them.
Morrison asked if the DEQ didn’t monitor it, then who would it be.
Christenson responded it is dealt with by a complaint.
Kerrie Standlee, Daly, Standlee & Associates, said the DEQ regulation was a state law and they used to have an enforcement section that was the standard during Measure 5. He noted at this point it is a law that is on the books that is not enforced by any agency. He said they left the law on the books so the counties or cities could use it to launch a lawsuit or a reason for stopping an operation. He said the County would be responsible for monitoring or having someone monitoring it.
Morrison asked what happens if they were proven wrong and irrigation water was affected.
Tross responded the groundwater and hydrological study is for the mining area to be surrounded by an infiltration trench. He said the groundwater levels would be maintained so groundwater levels would not be significantly diminished.
Morrison said that page 21 noted the conflicted uses within the impact area that could affect the resource site or dwellings, the ability to mitigate the potential impacts using reasonable and practical measures. She asked who determined the reasonable and practical measures.
Tross responded under the Goal 5 Rule, the way it reads is that local government determines what those measures are. He said the key words are reasonable and practicable. He said that Goal 5 said that the aggregate site can’t significantly affect an offsite use, once the site is determined to be significant (as it had been by the Planning Commission) based on the three significant factors of quantity, quality and location, then other uses could not be found to be in conflict with the aggregate resource.
Morrison asked if they would continue to use the rest of the land in farm use and if so who would be doing that.
Tross stated it would depend on factors that would depend on conditions at the time the site begins operation. He said it may depend if there is a local farmer willing to lease the land or use it for that purpose. He added it would depend on market conditions on the land.
Morrison noted that Mike Alltucker was looking at this site to be used for 30 to 40 years and they had looked at other sites to be considered. She asked after those years where the company would go.
Alltucker responded that his biggest challenge is having to look further into the future than they ever had to do before. He said land use laws would probably be more restrictive in the future than they are today and that is why this site is so important to their company. He noted that geologically there are other sites available that are adjacent or co-exist with farmland.
Dwyer asked if conservation easements were given to ensure compliance of the reclamation promises regarding open space. He asked how the public would know it would not turn into another Valley River Center after they left the area.
Alltucker noted that conservation easements were not part of their proposal at this point. He said they have to post a bond with the state with DOGAMI that ensures that even if their company disappeared, that their bond would stand in and reclaim the site like their plan said it would.
With regard to soil classes, Dwyer asked if any of the cells would stand alone and the percentages allowed under the rule.
Tross noted that was a definition in the Goal 5 Rule. He said on a cell by cell basis, (the cell being ten acres) the answer was yes, compromised of Class 1 and 2 soils. He said in order to answer if this was a significant site, he said they had to look at the definition of significant site in the Goal 5 Rule. He noted the Goal 5 Rule stated they look at the mining area in its entirety and under that definition, they did not encounter that problem because the depth of the aggregate exceeded the 60 feet that overcomes Class 1 and 2 percentages.
Lee Kirsten, 260 Country Club Road, Eugene, stated he was a lawyer for Lone Pine Farms. He said with Thistledown Farms, his client had invested significant time and money to bring expert advice on the impacts of the proposal. He hoped the Board wouldn’t be political and the experts would show how the merits of the proposal did not justify approval.
Randy Henderson, Thistledown Farms, said they believe that decreased customer count was due to truck traffic on River Road. He said people would use Highway 99 instead and they won’t get the impulse sales at their fruitstand. He stated they would lose crop yields due to dust interference of photosynthesis. He said that they would have to spray for increased mites due to dust. He said there would be loss of eye appeal and quality of fruit and vegetables due to dust. He said they would have to increase their spraying due to physiological changes in plants from dusts and chemicals that causes increased susceptibility to fungus and insects. He thought there would be an increase in heating costs to their greenhouse due to low light transmission caused by dirty films on their greenhouses. He added the increased flood levels would transfer the herbicides from their crops. He said prohibition of growing sensitive crops adjacent to the proposed site would cause change in his crop rotation practices. He noted there was a possible loss of water rights and decrease in the shelf live of products that would require washing. He added they would also experience the loss of farm ambience, of the farm experience and loss of certification of his farm due to asphalt emission fallout. He said they would have increased herbicide cost due to noxious weed infiltration, possible loss of property from changes in the river course; capture of the pits and inability to farm due to the expansion of the urban growth boundary as suggested by Eugene Sand and Gravel in their latest submission.
Lori Jenson, Lone Pine Farms, 91909 River Road, Junction City, stated she and her family own Lone Pine Farms and the entire farm is in the impact zone of the gravel pit. She noted they had a lot invested in the application process. She said they have had to regrade their roads so the farm equipment could pass over them safely and no offer had been made for the crops they had lost due to Eugene Sand and Gravel. She said their experts noted that Eugene Sand and Gravel’s experts had created a fictitious world based on assumptions where there would be impact from the extraction and processing facility. She noted her experts explained why this was incorrect into the record.
Jenson stated if this application was approved, their farm would no longer be economically viable. They submitted material into the record showing that a critical aspect for successful direct produce marketing is to create a sense of place. She said she would no longer be able to afford to sell clean products to her customers. She noted they submitted material into the record showing that the cost of washing was prohibitive. She added it was unsafe to operate her draft horses in the impact zone of a gravel pit. She noted the material they submitted into the record showed the cost involved when they lose the ability to continue accepted farming practices.
Ed Whitelaw, Economist, stated he was retained by Thistledown for analysis and testimony on this issue. He said it was his opinion that if the application is approved and implemented, it would significantly increase the costs of the accepted farm practices on the surrounding lands devoted to farm use. He noted in the report he submitted, he discussed the different ways of looking at costs with supply and demand side effects.
Whitelaw explained the applicant had (in the course of the testimony) repeatedly said that there was no credible evidence of the impacts. He found that Ross Penhallogen was knowledgeable and competent to address the issues. He said that direct, fresh marketing on farms is a burgeoning area in agriculture and Thistledown and Lone Pine Farms are unusual assets that local economy has. He said the impacts on the farms and the farm stands are on the costs of accepted farm practices. He noted it was hard to separate the local aggregate market and the local fresh direct produce market. He stated if the Board had a choice between two assets, the economist would advise to save the one that is relatively scarce. He said that Lane County’s aggregate market was unusual in the state because of the abundance of rock materials relative to projected demand. He said the prices reflect that the prices for aggregate are lower than in other major markets in the state and have stayed constant over the years when compared to the prices of fresh produce sold direct.
Whitelaw stated that if the site is not developed as a mining site (and even if Eugene Sand and Gravel were to disappear) there would be no decrease in aggregate jobs in the county. He said the demand and supply of aggregate would remain and it would be highly likely that other gravel companies would hire the Eugene Sand and Gravel employees.
Duane Hatch, 348 Van Duyn, Eugene, stated he was an OSU Extension Horticulturist for 22 years in Lane County. He stated he had seen the changes in agriculture. He concurred with the idea that dust and crops do not go together and is a problem. He said that Lane County crops need to be sold in a different way then they had in the past and the roadside stands along River Road was a good way of doing that. He explained that dust and peaches do not go together as the fuzz on peaches accumulates dust and there is no way of removing that. He said that dust affects the growth of plants as dust mites build up. He said that treatment for mites is expensive spraying or control is not achieved. He added the sprays that are applied are less effective on a dusty surface. He didn’t want to see the handicap of a viable growing institution as the roadside stands are subjected to the operation that is proposed.
Mark Reed, University of Oregon, Department of Geology, stated he had been in the profession for 22 years. He noted his work on this site included several reports. He added he did his work without pay as a public service. He was concerned about the permanent destruction of prime farm ground in the Willamette Valley, as there were excellent alternatives available.
With regard to the site, Reed noted that the aggregate was only 53 feet thick, not the 60 feet required by Goal 5 and Eugene Sand and Gravel had failed to demonstrate that the quality of the gravel met the ODOT standards. He said the key issue to the thickness of the gravel is that there is an upper gravel layer of about 53 feet thickness, then a clay layer of 10 to 14 feet thickness and a lower gravel of 20 feet in thickness. He said the upper layer had lose gravel that was high quality and the lower quality material is older in age. He noted the section showed there was 53 feet of gravel, not the 60 feet required and Eugene Sand and Gravel incorrectly reported this upper layer as 60 feet in their geologic data reports. He noted that the clay layer physically and economically isolates the gravel beneath it from the gravel above. He said the Goal 5 Rules states that the layer of gravel must be 60 feet, (it did not say layers) but it had implications for the interpretation of the rule.
Reed explained that all of the ground beneath the Willamette River would qualify under Goal 5 (considering the definitions of aggregate and the definition of width of an aggregate layer) if the interpretation was to mean that they could incorporate multiple layers instead of the one single layer, everywhere beneath the Willamette Valley where there is more than 60 feet of sand and gravel deposited in a water lane environment. He noted unless they interpret the term layer strictly, then the Goal 5 Rule loses its meaning entirely because all sides qualify.
With regard to ODOT standards, Reed noted the principal problem for quality concerns is the issue of a representative sample that is called for in the Goal 5 Rules. He said that Eugene Sand and Gravel had assured them that the quality requirements were met, but they had submitted only six samples and those samples were not valid. He said passing tests on invalid samples constitutes no test at all. He said they weren’t valid because some were carefully selected high-grade from only 20 feet of the available drilling or they were picked from a stream bank. He noted that other samples were mixtures of the high-grade material at the top mixed with the worst rock, so no one could tell how bad the worst rock was. He stated Eugene Sand and Gravel defended this deficient sampling in his statement. He said not one sample of the lower gravel (beneath the clay layer) had been submitted that passed the ODOT test and gravel beneath that layer must pass the test in order to add up to more than 60 feet if they were to accept the multiple layers interpretation.
With regard to groundwater, he read excerpts from Professor Joel Massman from the University of Washington. Massman explained that impacts would affect farming practices. He added the proposed mitigation would not work as the rate of groundwater discharged from infiltration trenches would be greater than the amount that could be put back into the ground.
Mike Milke, 30770 Lone Pine Drive, stated he owns Kaybar Three Farms. He was opposed to the application. He showed a video tape about his farm.
Arthur Knoxen, Acoustical Engineer, Eugene, stated he helped defend 20 rock quarries in the Central Oregon area. He explained it added up to community noise and the rights for people to have peace and quiet. He said there were fundamental flaws in the acoustic analysis and the system won’t work. He took his findings from Eugene Sand and Gravel’s acoustical engineer’s report. He questioned the validity of the information in the report.
Dan Stotter, Attorney, representing Thistledown Farms, addressed the state law requirements of ORS 215.296. He stated the Board must deny this land use application if it causes either a significant change in surrounding agricultural practices or causes a significant increase in agricultural cost for surrounding farm uses. He said this proposal did not meet state law as it would cause significant adverse impacts to agricultural practices and significant increases in agricultural costs. He said the Goal 5 Administrative Rule stated there must be a single 60 foot layer of aggregate on the subject property. He noted that undisputed evidence in the record showed there was not a 60 foot layer on the subject property as required by law. He said this application must be denied as a matter of law. He stated in addition to the state criteria, county criteria for zone change also applies and are not addressed or met by the applicant. He noted that state law by statute controls an administrative rule and the County has statutory authority to make zone change criteria. He said the DLCD rule could not preempt a state statute or the delegation of authority given to the County to make zone change decisions.
Dwyer noted he read a letter dated August 7 from the DLCD. He said the letter stated there is a 14 foot layer of clay located within the aggregate resource at 58 feet below ground surface. He said according to the definition of width of aggregate layer, in OAR 660-023-018(1g) it should be used when considering whether the aggregate resource layer exceeds 50 feet in thickness. He noted at issue was whether the width thickness of the aggregate layer above and below the clay layer may reasonably be used to support such a finding. He said DLCD believed it could.
Reed’s argument stood that the intent of the Goal 5 Rule is to make a fair trade, prime farm soil for 60 feet of gravel.
Sorenson asked what the evidence was that was submitted in the record that lead to Whitelaw’s conclusion that there is significant costs and change.
Whitelaw responded pages 4 and 5 of the report was where he addressed the facts on costs. He addressed the supply side effects on page 5.
Sorenson asked if there was significant cost to the farmers.
Whitelaw agreed there was.
Sorenson asked if the applicant built a sound barrier if that would solve the sound problem from a legal standpoint.
Knoxen responded it would.
Sorenson asked if a sound barrier could be built to mitigate the sound, bringing it in to compliance with DEQ.
Knoxen noted it would have to be over 25 feet high.
Sorenson asked if there was a significant cost to the farmers about the factors that went into Hatch’s opinion that there was significance on the cost side and a change in the operation. He asked about the facts.
Hatch responded that the roadside stands used to be seasonal. He noted that because of the farm’s expansion and the number of crops produced, the season had been extended. He said if the water table was not maintained that it could be a major expense to pump the water.
Sorenson asked Stotter if he agreed with the legal setting of the case.
Stotter responded regarding the applicable criteria, there was no question that they concurred with Lanfear’s staff that there is additional criteria that Pfeiffer disagrees with. He stated the statute specifically gives the County authority for zone change criteria. He said substantial need had to be demonstrated and that criteria had not been addressed. He said that an agency could not control a rule. He noted there was a statute that prohibits an asphalt plant within a proximity to vineyards and it was their opinion that that statute is a bar to this development. He stated the statute could not be limited, having less protection.
Sorenson asked Stotter to comment on the DLCD letter.
Stotter noted the DLCD had not undertaken any court review. He agreed to look to the agency, but when the agency’s interpretation renders the rule meaningless, such that any piece of land in Lane County would be open to aggregate would fail. He said the interpretation was ludicrous and would not be upheld by a court. He said in the rule where there is an balance between aggregate and farming, the intention was to make it that only certain pieces of land (those having aggregate on Class 1 and Class 2 soils) having a 60 foot layer would be allowed. He said when they passed the rule, they balanced it and did not intend to have aggregate take over farmlands on Class 1 and Class 2 soils across the Board. He noted that was the interpretation that Pfeiffer encouraged the Board to take and it could not be the law.
Morrison asked Reed about his testimony reading excerpts from the groundwater report that was submitted by the applicant.
Reed said he read from the summary of findings at the beginning of the Joel Massman report. He noted they came from page 1, items 1, 2, 3 and 4, that were the summary of the key findings from Massman. He also mentioned another report from a John Selker, a separate hydrologist from Oregon State University that came to the same kind of conclusion.
Morrison noted on the letter with DLCD’s position on the 53 to the 60 feet, she asked Reed if he was questioning their comments.
Reed stated he did not see LCDC’s comments and wasn’t able to question their particular comments. He questioned the validity of a conclusion that it is sufficient to have 60 feet by adding up multiple layers. He said the critical issue was the intent of the rule with a layer that breaks the economic continuity of the body.
Steve Reinquist, OSU Extension Service, stated he was the County Horticulturist in Douglas County. He read Ross Penhallogen’s document into the record. Reinquist noted he did not work with Penhallogen in compiling the data. He said as an extension agent he would agree with the data he had read. He said some fruit and crops would be impacted by the dust. He said raspberries and peaches would be impacted to a greater extent cosmetically.
Frank Snitzer, DOGAMI, stated DOGAMI regulates all aspects of mine development including stormwater, groundwater protection, flood plain stability, cut and fill slope stability, excavation setbacks, property line setbacks, protective buffers, mine depth, fishery and wildlife protection, protection of surface water and soil resources and all aspects of reclamation. He noted they did not regulate air quality, noise, traffic or other land use impacts. He said their role is to ensure that the adjacent natural resources are protected during mining and that a feasible and timely reclamation plant is implemented. He said DOGAMI acts as the lead coordinating agency among state agencies for mine sites.
Snitzer noted their regulatory directive is to allow mining where land use approval is obtained in a manner that protects adjacent resources during and after mining, including the protection of adjacent waterwells, riparian zones and erosion of adjacent properties. He said DOGAMI had determined that the drill density is sufficient to define the aggregate resource of the magnitude presented in the EGR reports. He said the lateral continuity and the correlation between drill holes is good with similar material occurring at the same elevations throughout the deposit. He added there were no dramatic changes in the thickness over short distances and the depth of the bedrock is consistently greater than 90 feet. He said the observations indicate that the drill space is accurate to define a resource. He said to determine the thickness of the aggregate layer at the River Road site, the clay seams and lenses were subtracted from the total thickness of the drilled sequence. He noted when this is done, a thickness of 77.5 feet is obtained. He said DOGAMI concluded that this was a viable economic deposit and met the Goal 5 significance test.
Snitzer stated based on the data supplied, DOGAMI concluded that the groundwater would be managed prudently during the operation of the mine site and DOGAMI would replace restrictions on the operation related to groundwater protection. He said conveying groundwater to a trench or empty cell for recharge to the water table is a common method practiced at numerous gravel pits in western Oregon. He said maintaining pumped groundwater onsite and allowing it to seep back into the aquifer is a successful method of maintaining groundwater levels as recommended by DOGAMI. He said recirculating groundwater confines impacts of dewatering and is used by the majority of floodplain operators that pump groundwater. He said at the River Road site (due to the transmissive nature of the gravel) building a trench to recharge the water to the aquifer is considered a feasible method of maintaining a water balance in the area. He said in order to track water levels and quality, groundwater monitoring wells would be required around the site boundary. He added the water level gauging of the oxbow draining during the dry season would also be required. He stated should DOGAMI determine that unacceptable water level declines are occurring, offsite corrective action will be required or may include diversion of groundwater to the oxbow drainage and/or deepening existing wells or drilling new wells. He added it could also include the reduction in groundwater pumping by the operator, if that is required to solve the problem. He said if it was determined by DOGAMI that offsite impacts are likely to occur, the operator would be required to implement mitigation strategies. He noted any significant declines in the onsite monitoring wells will provide advance notice for the potential of offsite impacts and will provide protection for adjacent wells.
Snitzer noted the wells that have been around the site had been in place for about ten years without a water quality violation. He said it was DOGAMI's understanding that Eugene Sand and Gravel had performed the foot analysis according to Lane Rural requirements. He said their regulations allow them to customize the application requirement based on the scale and scope of the project. He noted in consideration of the sensitive habitat and the project scale, DOGAMI will require additional detailed baseline information on channel and floodplain hydrology, channel hydraulics, floodplain hydraulics, geomorphic conditions and the stability of the existing revampments and the natural bankline.
Snitzer explained DOGAMI would require more precise calibrations of the hydraulic model by requiring newly surveyed sections of the river in the area. He said this would provide more accurate information on water surface elevations and erosion potential for all floods up to the 100 year event. He noted in some cases, lesser events could be more damaging with respect to erosion potential. He said mining under the Eugene Sand and Gravel proposal is outside the meander path the river has taken over the last 70 years. He said based on their evaluations of the 17 out of 200 impacted sites during the 1996/1997 floods, it was clear that sites located outside the recent meander path of the river were high risk to be captured. He noted that DOGAMI had previously made statements in the record that the proposed setbacks from the river appear reasonable. He added that DOGAMI had also stated that this appeared to be a relatively safe place to mine, but cautioned that they would restrict mine depths in frequently flooded areas that are subject to erosive velocities. He said the DOGAMI report is based on a cursory review of historical photographs, several site visits and extensive experience at other floodplain sites. He noted the operating permits could result in wider setbacks than they believe necessary or additional mine depth restrictions or other requirements to ensure floodplain stability and protection of adjacent natural resources. He noted they had new authority for floodplain sites in their statutes for sites permitted or expanded after October 1999. He said DOGAMI might require a unilateral modification or amendment of the mine plan or reclamation plan to prevent substantial harm to public or private property for service mine activities could result in a taking of an endangered species or river channel changes threaten stability.
Snitzer said they could theoretically manage dust if it damaged adjacent vegetation but they had not encountered that situation.
Morrison noted in one of the reports from the applicant, that DOGAMI also requires that a bond be posted to assure reclamation. She asked what the amount of the bond was.
Snitzer responded that statutes require them to base the amount of bond cost to them if they were to perform the reclamation at any point in time. He noted at the initial startup of a mine site, the bond would be low because liability was low. He added as the mine got deeper, they would evaluate the bonds annually for the liability. He said it would be DOGAMI's cost if they were to hire a contractor to do the work.
Morrison asked as the monitoring was occurring, if the applicant had to do something if the well went dry.
Snitzer noted the monitoring of the wells would be submitted to DOGAMI on a quarterly basis (or more often if they thought it appropriate) and that data would allow them to make decision on whether they needed to address the problem. He added they would write conditions in the permit that would allow them to open up the permit and change anything that needed to be changed related to groundwater protection to make sure they maintained the impacts on site.
Morrison questioned how well DOGAMI monitored their enforcement. She asked if they responded to problems quickly.
Snitzer said they are in the field and are able to respond to problems quickly.
Tom Boyette, Area Planner, ODOT, 644 A Street, Springfield, stated they had two letters in the record, dated April 13 and August, 2001. He said early in the process, ODOT raised a Goal 12 issue, that is implemented through the Transportation Planning Rule OAR 660-12. He noted their issue in application of Goal 12 to the plan amendment was to look at the traffic impacts that would be generated through the changing of the land use to an aggregate operation. He said early on they named interchanges on Beltline and after Eugene Sand and Gravel narrowed their haul route to a specific truck route, (through Northwest Expressway and Beltline,) they had Eugene Sand and Gravel's travel people analyze that interchange and as a result of that analysis, ODOT and the applicant were able to reach agreement about how to mitigate for the applicant's traffic impact that is necessary to make Goal 12 findings. He said they agreed to a proportional share of the future fix that would be signalizing both of the ramp terminals east and westbound on Beltline.
Morrison asked what would happen if the computer models were wrong. She asked how they would evaluate the numbers that were put in.
Boyette responded with the transportation planning rule as of 1991, most of the cities and counties had urban growth boundaries and the land within the urban growth boundaries had been designated for certain uses and the assumption was the transportation system would be adequate for those uses. He said those proposing to change the land use to a different use would do the traffic impact analysis of the change and that was the exercise they did. He noted the traffic analysis provided by the applicant showed an impact to the Northwest Expressway/Beltline interchange and case law got around the word significant. He said significant means any further degradation to the system that would normally occur with the background traffic and the traffic from the already allowed zoning. He said they looked at the difference between the situation as it would normally play out in 15 years and the changed situation and came up with the incremental degradation to that part of the system and used it as a formula to apply to the cost of the future fix with a proportional share.
There being no further business, Commissioner Morrison recessed the meeting at 10:30 p.m.