BOARD OF COMMISSIONERS'
Thursday, August 9, 2001
Sheldon High School Auditorium
a. CONTINUED 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, Sr. and Cindy Weeldreyer were excused. County Administrator Bill Van Vactor, Assistant County Counsel Stephen Vorhes, Recording Secretary Melissa Zimmer, Lloyd Holtcamp and Thom Lanfear from Land Management were also present.
Lanfear noted there was a request from someone in the audience who was not able to be present last night but signed up and requested to speak.
Dwyer responded they closed the record and if they opened it for one that they would have to open it for everyone. He asked if anyone else wanted to speak. He didnít want to re-open the record.
Sorenson said there would be other times when people could testify. He added they were still accepting testimony into the record. He concurred with Dwyer not to re-open the hearing.
Morrison concurred with Dwyer and Sorenson that there would not be any more public testimony allowed.
Lanfear reported the applicant would be presenting a rebuttal to the evidence that had been presented both orally and written. He noted they had received an additional 115 submittals into the record. He stated there was a request from Daniel Stotter to leave the record open to respond to materials submitted by the applicant.
Jeff Tross, Land Use Consultant, stated the process for Eugene Sand and Gravel began over seven years ago to this application. He said the application itself had undergone change in response to comments and testimony from public agencies, the recommendation of the planning commission and the testimony of the public at the public hearings. He said the aggregate operation would begin at 50 acres (including the haul road that would remain for the life of the operation) and would take ten years to reach as much as 100 acres.
Tross noted as each mining cell was finished, it transforms towards its final reclamation use. He said ultimately the application must be decided on the facts and evidence that address the rules and criteria. He said the Goal 5 Rule for mineral and aggregate is unique in that it is specific about what must be considered, how the rules could be satisfied and how satisfaction of the rules lead to a decision. He explained this application addressed the rules more completely than any other previous Goal 5 application and it meets the burden of proof required by Goal 5.
Ralph Christenson, EGR Associates, addressed ground water, flooding, and the significance issue. He said there were extensive reports and other submittals within the record. He noted there were people concerned about a loss of ground water and wells going dry. He stated that was a concern that Eugene Sand and Gravel had early on in the process. He said their current neighbors never had water problems. Christenson said that a Mr. Beet stated that his wells (near another gravel extraction location) have had problems. Christenson said they had reviewed the site and informed Eugene Sand and Gravel they could cause problems for the neighbors. He added since that time, they had worked on finding mitigation measures and that was important information.
Christenson noted that an orchard in the proposed area was having trouble with their well. He said they could be fairly confident that that was not an issue that was caused by Eugene Sand and Gravel since they were not extracting rock. He said they would anticipate that certain wells would have problems.
Christenson explained modeling was designed specifically to see if Eugene Sand and Gravel would have an impact on the water. He said the modeling indicated that they were going to have an impact and that caused them to go into mitigation. He explained the mitigation plan they chose was based on specific knowledge of the site, similar sites now in operation, and past practices and industry use of methods similar to this throughout the Willamette Valley as testified by Frank Schnitzer. He added they used similar ground≠water disbursal methods used by local sand and gravel operations and their experience with infiltration into their pit and specific characteristics of the aquifer, the geology and the history of operations. He noted they were specifically asked from the Planning Commission where this type of operation had been done before, where it worked. He said they provided that information between the time of the Planning Commission hearings and these hearings, indicating they know places where it had worked. He said their job was to design a system that would work and that is what they would do when it was appropriate. He added that design would be part of the DOGAMI permit because of their requirement with DOGAMI to maintain the water supply in the wells.
Christenson noted they read the submittals of Dr. Massman and Selker and they understand their arguments. He said they will clarify the issues where their conclusions were different and that will be answered in writing. He said their ultimate conclusion is that their mitigation wouldnít work, and they would have to pump 150 million gallons per day. They believe this is based on a flawed understanding of the site. He asked if the site was a significant resource that needed to be addressed. He said that at DOGAMI, a planning commission geologist thought so. He said the water line deposit would meet the base rock standard because it had already met the base rock standards that three other major excavations had met. He said they were meeting base rock standards at 90 to 120 feet below ground surface. They thought it was less confusing to take an average measurement but they did meet the base rock standard.
With regard to flooding, Christenson stated that flooding occurs in the area as it is in the floodplain and there would be a 100 year flood at the site. He said the largest impact would occur at the facility, not the other dwellings. He said the impact downstream in a 100 year flood would be one inch. He said the variation from other causes (river changing its course) would be greater than the one inch impact. He noted they made the model from scratch and calibrated it to the 1996 and 1964 flood. He was confident their flooding information was correct.
Jim Hanks, JRH Transportation, 4675 Village Plaza Loop, Eugene, discussed the truck volumes. He explained during 1999 (the peak year for resource extraction by Eugene Sand and Gravel) the average number of loads per hour at the current site was 12 loads. He added during the peak month of the peak year, the average number of loads per hour was 26. They did the analysis to ensure they were being sufficiently conservative to handle any potential impact, basing the cost allocation for the traffic signal at Northwest Expressway and Beltline based on a number of 45 round trips.
Kerrie Stanlee, Daly, Stanlee & Associates, Beaverton, explained the quality of work by Daly, Stanlee & Associates had been questioned during the proceedings. He noted it was the opinion of one professional against another. He said they had three registered acoustical engineers involved. He said it was a collaborative effort of three engineers: Bill Holiday, Randy Stanley and himself. He said in addition to the work performed by Daly, Stanlee, they invited the review by John Hector (also an acoustical engineer) who helped write the DEQ law. He reviewed their procedures to see if there were any problems with the procedures they used in developing the ambient levels and gathering the data in developing the analysis. He said the study was not just his work, it was a collaborative effort of three engineers. He said that testimony had been provided that the noise study had not demonstrated that the DEQ noise standards would be met and the main reason was ambient noise. He noted that mitigation was provided and showed a slide explaining the control needed. He stated an attempt was made to measure the ambient levels behind the houses along River Road. He said after it was questioned by the opponent (and the County submitted requests that something was considered) an attempt was made and permission was denied by everyone contacted. He said it was not that they failed to present the data to the Board, they were not allowed to obtain the data.
Candy Hatch reported that she performed the air quality evaluation for the Eugene Sand and Gravel application. With regard to asphalt plant emissions, she noted that testimony had been given that the air emissions from the asphalt plant would harm resident and worker health and kill or damage plants and cause damage to greenhouses and materials around the site. She performed an analysis of asphalt plant emissions, assuming that the plant operates at maximum capacity, using emissions data from actual asphalt plant operations that was provided by EPA literature. She explained the results from the analysis showed that the concentration of air emissions from the asphalt plant were well below any health or any levels that would cause damage to plants or to building materials. She noted these results were in the July 2000 air quality report, pages 5 to 7. She found nothing in the testimony that said the air quality levels they analyzed specific to this project would create the outcome.
With regard to dust, Hatch stated the visual image she received from the testimony was that there was a perception of huge clouds of dust rising from the aggregate mine, continuously depositing around the site and there would not be huge clouds of dust coming from the facility. They analyzed the dust specific to this proposed project, including well controlled aggregate mining operations. She said they didnít analyze generically uncontrolled facilities, they looked at what would specifically come from that plant. She said the analysis assumed that all of the operations on the site would be operating at peak levels for every day during a year without rainfall. She said the results from that analysis produced a dust deposition of 3.3 grams per square meter per month at the property line which equates to about a teaspoon scattered over a one square meter area. She noted these results were in the February 2001 report, pages 6 to 8. She added when they accounted for rainfall at the maximum impact point in the summer, it was 2.1 grams. She said it means that property farther away would have less than that number. She noted Thistledown Farms would have .1 to .5 gram per square meter per month. She explained that LRAPAís deposition standard was 3.5 grams per square meter per month. She noted that LRAPA reviewed their analysis and found that the mitigation measures were sufficient to meet their standards and regulations and submitted a letter to the record dated May 4, 2001.
With regard to monitoring and reporting, Hatch noted that Eugene Sand and Gravel would be required to submit an application to get an air permit from LRAPA. She said that LRAPA will perform a technical review of the project including all of the air pollution control measures and equipment and will verify that the final design of the projects would meet their standards. She said after they complete that review, they will issue a permit that has conditions setting limits and dust control methods. She added it would require monitoring, reporting and record keeping to show compliance for all of the air pollution control equipment and dust control methods. She added LRAPA stated they would include the fugitive dust methods (watering activities) as a condition for the permit. She said that once the permit is issued, Eugene Sand and Gravel would have to do testing periodically, perform monitoring, keeping records of performance and maintenance of equipment and sending in reports to LRAPA, at a period specified by the agency. She added the Board could put a condition in this approval that essentially adopts by reference the conditions from the LRAPA air permit as an extra layer of enforceability.
Robert Costa, 6195 Woodside Drive, Salem, stated he was a professional agronomist. He provided testimony in place of Bruce Andrews who was not able to attend. He said most of the potential impacts had been effectively addressed in their previous submittals including the agricultural assessment that was Exhibit 702 B. He noted the remaining issues would be addressed by others or by written submittals. He agreed that excessive dust could have a detrimental affect on crops. He said dust could cause a significant problem under certain conditions and agriculture is a dusty business. He said agriculture and dust have always co-existed. He noted the area surrounding the proposed facility supports a wide variety of agricultural activities from specialty crops to grass seed. It was his opinion that when the apple, peaches and raspberries are on the trees and vines, normal activities such as combining, straw bailing, weed control and plowing typically generate greater levels of dust than those predicted from the Eugene Sand and Gravel facility. He agreed there was a level of dust for crops that was so low that no effect was observed. He said for the research submitted into the record by the opposition, and the research they found for comparable dust materials, the detrimental affects reported in the studies were a result of dust deposition rates on plants ranging from 7 to 100 times the dust deposition rates predicted from the Eugene Sand and Gravel facility. He said the comparison was based on a conservative predicted deposition rate for the proposed facility when normal rainfall was factored in of 2.1 grams per square meter per month at the property boundary. He added much of the dust that settles is intercepted by the foliage, not the fruit and the research showed the significant amount of the dust is removed from plants by wind and rain.
Costa explained there was another example from the Farmer Report submitted by Mr. Penhallogen and others as Exhibit 661 B, 427 D, 527 J and 605. He said that Dr. Andrew Farmer conducted a search of the literature on the affects of dust on the vegetation and wrote a summary of his research. He explained most of the research he reviewed on crop plants was for cement dust. He said Farmer stated that the lowest rate of application of cement lime observed to cause an affect was 0.5 gram per square meter per day. He said this deposition rate was 15 grams per square meter per month and 7.1 times higher than the dust deposition rate predicted at the property boundary of the proposed facility. He cited another report, the Herano Research, submitted by Penhallogen as Exhibit 527 B and 605. He said they gave an agricultural assessment, (702 B) for their analysis of the report and the many reasons why the report was not applicable to the proposed Eugene Sand and Gravel facility. He noted other reports that were entered into the record cited similar dust deposition levels.
With regard to beekeepers, Costa said in a letter dated January 2001 and included in Exhibit 702 B that Dr. Burton concluded that based on the information they had reviewed regarding any potential impact to honey bees caused by dust from the proposed aggregate operation, that the proposed project would not significantly affect bee practices.
Shane Latermer, Beak Consultants, 317 S.W. Alder, Portland, noted they were retained by Eugene Sand and Gravel from the beginning of the project to aid with their biological needs and consulting for this project. He noted that Eugene Sand and Gravel had been more than proactive and had done more things than they had to do biologically to meet what the requirements would be for permitting in the future. He said mining today is different than on the river as it is required to be done in sequential fashion and there are economic reasons for the mine to do it in that way. He showed slides on how things would look.
Steve Pfeiffer said Goal 5 presented the Board with a different task than what they were accustomed to in zone plan amendment exercises. He said it was not a policy decision. He said it was their belief they approached the application as more of a conditional use permit where there was specific criteria that required a factual application and analysis by both the applicant and any other parties and the decision the Board makes is based on the evidence that was created by the record. He explained that contrary to what some people said, he did not say and did not believe that the Board was without discretion or that the Board had no role. He said it didnít give rise to policy considerations because they were resolved by LCDC at the adoption of the rule. He said the Board had discretion on the matter of significance and measures taken to minimize the impact He noted the only legal issue was the extent to which they were correct in their belief that the local comprehensive plan and zone map amendment criteria and the policies in the plan donít apply. He said LCDC in the adoption of the rule had preempted those criteria. He said that local government shall amend their comprehensive plan and land use regulations, include procedures and requirements consistent with the rule for the consideration for addressing aggregate resources. He noted until such local regulations are adopted, the procedures and requirements of the rule shall be directly applied to local government consideration to local plans and policies. He noted it was a rare circumstance when a county or city had stood before LCDC and suggested they had the ability to adopt independent zoning ordinances.
With regard to the 60 foot rule, Pfeiffer said the Board would have to make an interpretation on how the best rule lies. He said where there is 60 feet (on average) of an aggregate layer, and it is an industry norm, it is not unusual to expect an applicant to mine through them. He said it was to determine where high value farmland was involved. He said there was never a consideration whether it applied to all of Lane County, but it was an attempt (with the farm bureau) to say on those lands there should be more aggregate them would be found otherwise.
Pfeiffer urged the Board to consider conditions as a focal point as they move forward. He said if the Board sees a conflict, they should weigh the evidence and if there were conditions that could be drafted with sufficient enforcement and certainty to ensure that the minimization occurs. He said the Boardís decision must be supported by the weight of the evidence in the record. He said the Board finding of approval and minimization of conflicts or denial must be supported by that evidence. He said it could not be based on policy or statements, it had to be based on evidence to the facts in the application. He said what was heard was concern about loss of farmland. He said the Board had to determine that based on the record there is reason to believe (with credible testimony) that those operations would be adversely affected under the criteria. He noted what the Board received from the opposition was testimony about the effects of dust on plants or traffic. He said there had not been any credible expert testimony as to whether those conditions would come to pass based on the facts before the Board. He added there was nothing in the record to support a finding that the amount of dust that would be generated in a month would lead to dire consequences to farm stands or the industry as a whole. He didnít believe the weight of the evidence was present to support a finding of denial based on the notion that the conflicts had not been minimized as the rule required. He added sweeping academic studies did not support specific factual conclusions to outweigh the level of detail that the Altuckers had put on the table.
Pfeiffer concurred Stotterís request that the record be left open. He said they proposed a 30 day period of time initially, followed by a 14 day period of time to rebut new information submitted during the first 30 day period. He said that would be followed by a seven day argument-only opportunity by the applicant. He said they would be entitled to a meaningful opportunity to rebut
Mike Altucker, owner, Eugene Sand and Gravel, said his company had worked hard in the past three years to design a plan that addressed all of the issues they knew would be raised by the community. He said he listened for any new issues they might not have addressed and he hadnít heard any. He said he heard Hendersonís family speak passionately of their concerns and the business and their family. He heard Lori Jensonís daughter speak about her land. He heard Wade Skinner describe his connection to the earth and soil. He heard ODOT and Lane County Public Works testify that they had mitigated all traffic impacts. He heard business people speak about their support of their project and company. He listened to Janet Harper and her family and she was an inspiration. He said it was easy to be against something, but more difficult to be in support. He thanked his supporters.
Altucker explained the state had established a strict set of standards they must meet before they could go forward. He said they designed a plan that met all of the criteria and answers all the questions that had been raised. He said they met the rule. He noted their application had been in front of Lane County for over two years and the extended period had heightened their need for an aggregate resource. He said their companyís future was dependent upon the Boardís decision to approve their application. He asked the Board to give careful consideration and move quickly to approve their plan.
Dwyer stated the maximum this should be set would be 60 days to give everyone a chance to respond. He didnít want this to drag. He had no objection with the suggestions from Stohl Reeves.
Sorenson said in extending the record, the applicant suggested 30 days to September 10 and the opponents were suggesting a 30 day period. He said the September 10 would be a good date for the public and the proponents and opponents to submit additional evidence. He suggested from the period of September 10 through September 30 would be the period for the proponents and opponents not to submit additional documents, but to submit additional comment on the evidence that had been submitted and then give to the applicant until October 9, bringing it to 60 days from August 9, the close of the applicantís argument. He suggested lengthening the period of time for the opponents and proponents to submit additional comment following the close of the record and leaving the same length of time for the applicantís final argument
Stotter responded that one thing that was required as a matter of state law was the ability to respond to factual new information. He noted the system Sorenson created did not give that opportunity. He said their proposal avoided dragging things out by clearly stating the applicant ends its factual situation, the opponents address the factual situation and the argument is what the applicant is left with at the end.
Sorenson noted Stotterís proposal had the agreed period of time on the continued opening of the public written record, but he didnít like the length of time it would take. He asked Pfeiffer if he agreed with Stotterís proposal.
Pfeiffer noted at the end of the day, they both had the opportunity to submit evidence and they have the burden of proof under Sorensonís proposal.
Sorenson stated that period one was 30 days after the close of the public hearing and additional submissions or information from the public, applicant and opponents. He added that period two would be 30 days after period one and it would be the applicantís response and evidence addressing new information. He said period three would be the opponentís response and evidence addressing new information and period four is 30 days after period three, the applicantís reply.
Pfeiffer responded at that point, they were left with the opponent submitting new evidence and they would have no chance to respond with a rebuttal. He said in the past he had opened up the last period to provide an applicant opportunity to respond, and if they elect to respond, they need to accept that Stotter would get a chance to respond. He asked that at the close of the opponentís right to submit, they would be given seven days for them to determine whether they had a need to submit new evidence. He said if they do, Stotter should have a chance to respond. He proposed a 30 day wide open record period, with two concurrent 14 day times for both sides to respond to what came in the first 30 days. He noted at the end of them, the applicant would be given a seven day period to respond (if they elect) to new evidence submitted by the opponents, recognizing that the opponents would have seven days to respond.
MOTION: that there be a 30 day public period, with a 14 day period for the applicant to respond to any of the new information submitted, a 14 day period for the opponents to respond to anything that the applicant had submitted, followed by a seven day window for the applicant to consider, whether it wanted to submit new information or whether it would submit argument only.
Dwyer MOVED, Sorenson SECONDED
Stotter noted there was an understanding between Pfeiffer and himself that if in that seven day period, they do need to submit new information, they all agreed it opened it up for the opponents to respond.
Pfeiffer responded he wanted the opponents to then submit a letter requesting that and that would be the process.
Stotter stated that was acceptable.
Dwyer stated that part of his motion would include sending a letter indicating additional time would be needed for responding.
Lanfear recommended that at the close of the record period, he comes back to the Board and they can discuss what had come into the record and set the timelines.
Sorenson listed concerns he had and a request for additional information. With regard to the issue of availability of aggregate in other locations, it wasnít clear if that was really an issue for the Board. He asked if the Board needed to rule on the application as presented instead of ruling that the information was relevant to how much gravel was located.
With regard to traffic, Sorenson was interested in the applicable standard for the Board in terms of ruling on this issue and what the acceptable standard would be.
Sorenson asked for the detail (pro and con) on the sampling to produce ODOT quality gravel and how that sampling was done.
With generic requirements that there was compliance with all laws and regulations, Sorenson asked if the application as it presently exists complies with the federal Endangered Species Act regarding fish and wildlife.
Sorenson asked if the modeling for the dust included wind.
With regard to the flooding question, Sorenson asked what was the legal standard and what fact supported that there was a flooding problem or no flooding problem.
Sorenson asked whether or not there were land requirements in the Conservation Development Act and the regulations that allow county governments (specifically in this case) to impose conditions upon an aggregate mining proposal or if there was a harsh position taken by both sides, if the County was precluded from any involvement in setting any local standards in the Land Use Code.
With regard to the depth of the gravel with the 60 foot rule, he asked about any legislative history on the rule or legal Court of Appeals decision or any other legal authority on how much good gravel was needed
Sorenson noted there was disagreement about the ambient sound from behind the houses. He said the applicant attempted to take those measurements from behind the houses. He asked if the ambient sound could be modeled behind the house and if there could be a stated opinion. He also asked what the amount of barrier was that cuts out how much sound it would take to bring it below the 10 decibel level.
Sorenson asked if there would be an increased cost of production and if there would be a change in agricultural practices and if the change was significant.
With regard to the asphalt issue, Sorenson asked if the asphalt was part of the application governed by the aggregate mining rule.
Dwyer asked if there was a limit to the size of an aggregate facility in terms of acreage., and with regard to the cells, he asked if they could stand on their own.
Vorhes reiterated the first open record period would require any new evidence and testimony be submitted by the end of the business day on September 10, 2001. He added that any new response to that evidence would be due on September 24 (especially the response by the applicant with new evidence, if any, responding to the previous evidence). He said the opponent rebuttal response period would be through October 8, with the final argument being due October 15. He added if the applicant responds with new evidence within that final argument period, that would trigger a seven day additional opponent response period that would need to be exercised and submitted by the opponent (or any other party that felt they needed to respond to the new evidence) on October 22. He added that notice would need to be done in writing. He noted the applicant would then have the final rebuttal argument which would be due on October 29. He suggested waiting until that occurred, provide staff and the Board a clear picture of what will need to be previewed before the Board could entertain an ESEE analysis, they have to consider all possibles and analyze for deliberation, with the date of October 31, or November 7 for the third reading.
MOTION: to approve the Second Reading and Setting a Third Reading for Ordinance PA 1164 on November 7, 2001
Dwyer MOVED, Sorenson SECONDED.
Vorhes noted that on November 7, there would be an oral report on the volume of the materials submitted into the record and a brief discussion to assist with the setting of a deliberation date.
There being no further business, Commissioner Morrison adjourned the meeting at 7:10 p.m.
Back to Board Notices