BOARD OF COMMISSIONERS'
February 20, 2002
Harris Hall, Main Floor
Commissioner Bill Dwyer presided with Commissioners Bobby Green, Sr., Anna Morrison and Peter Sorenson present. Cindy Weeldreyer was present via telephone. Assistant County Counsel Stephen Vorhes and Recording Secretary Melissa Zimmer were also present.
# 1. PUBLIC COMMENTS
Mary Ann Holser, asked the Board to look at decision-making where scientific evidence is mixed with the placement of cell phone towers. She asked the Board to take preventative action with the cell phone towers. She added that public participation could offer solutions. She asked the Board to consider the precautionary principles, as Congress does not allow discussing health problems related to cell phone towers.
2. EXECUTIVE SESSION as per ORS 192.660
3. PUBLIC WORKS
a. FIFTH READING AND DELIBERATION/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)
Dwyer asked the Board if they had any ex-parte contacts.
Green responded that in the last few days he had e-mails and conversations with Randy Pape questioning the process. With regard to anything different or new, he had nothing to report and nothing prejudiced his decision-making ability.
Morrison stated since January 30, 2002, she had received numerous e-mails, voice mails, and comments, but none had any impact. She didn’t think she had a conflict of interest and didn’t stand to gain financially from the application.
Sorenson stated he received e-mails and telephone calls from people in the community. He stated he saw a reader board that Eugene Sand and Gravel put on the highway urging he and Dwyer to vote for the gravel operation. He also saw a full page add in the Register Guard asking the Board to vote in favor of this application. He said the ex-parte contacts raise serious questions about the fairness of the proceedings. He stated much of this had been directed at Dwyer. He was called by Mary O’Brien to see if he received an e-mail from a Ms. Arkin. He received the e-mail that was sent to all the commissioners. He urged the community to avoid ex-parte contacts.
Weeldreyer received numerous e-mail and voice mails, urging support for the Eugene Sand and Gravel application. She said the Register Guard’s editorial persuaded her when it stated the Board of Commissioners need to be fair and to look at what the rules and parameters are for a gravel site operation. She agreed that she would be fair and impartial, looking at the procedures instead of the emotional issues. She didn’t stand to gain anything financially.
Dwyer said he received numerous e-mails and responded to them. He noted it was a quasi-judicial decision whose record is closed as of January 30. He said people have a right to say what they want. He noted the decision would be made on the record--and on the record only--in accordance with the law, utilizing their best judgment. He announced that Tuesday, March 19, 2002 was set aside as an additional day should they fail to get through with deliberation on the testimony and evidence today.
Dwyer explained the Board has to hear the staff report and the record to determine if the PADA information is adequate from the staff. He added the question of significance was not being decided because the Board had already made that decision. He said they needed to determine if the conflicts for mining could be minimized and they need to consider the impact areas covered in the Board of Commissioners deliberation outline.
In response to Sorenson’s question about what previously had been done with Step 1, Vorhes responded that the Board had dealt with Step 1 and the Board’s tentative action was to determine the application was completed and that there was a significant resource and it covered quantity and quality. He said the Board finished Steps 1 and 2 and could go to Step 3.
Dwyer asked if there were any responses to ex-parte contacts.
Lori Jenson, 92019 River Road, Lone Pine Farms, Junction City, stated she had not had any ex-parte contact other than a conversation thanking Sorenson and Dwyer. She tried following the rules but was not allowed to be in on the ex-parte conversations. She was unsure whether she should be able to respond to that.
Dwyer stated it was taken in a broad context, including e-mails and conversations that didn’t deal with the substance of the issue. He stated no one on the Board had stated they had substantive conversations with anyone that would change the facts they are going to consider.
Norm Maxwell, (did not give address) stated he had previous experience with ex-parte contact with the County. He said no one could be disqualified for having ex-parte contacts. He thought it was a waste of time discussing it.
Bruce Loudon, 30318 Victory Dr., Junction City, said they were able to comment last meeting to the proceedings and asked why they couldn’t comment to Step 3.
Dwyer responded the record closed on January 30, 2002. He noted it was a quasi-judicial decision and only remarks entered during the time the record was open would be considered. He said the rest of the remarks were freedom of speech.
Thom Lanfear, Land Management, explained they were at the part of the process where the Board looks to the mining plan and determines what conflicts could be expected from the mining. He said the task before the Board is to determine if those conflicts could be minimized to where they are no longer significant. He said the first part of the analysis involves reviewing the impact area from the various conflicts. He added there would be an identification of the existing and improved uses that exist around the proposed mining site.
Dwyer noted a lot of this was subjective, based on their best judgment. He asked Lanfear to define significance.
Lanfear responded for the purpose of identifying where a conflict is minimized to a level that is no longer significant, the conflicts fall into three categories; one category is regulated by a state, federal or county regulation. He said when looking at noise in relationship to the residences in the area, the applicant is required to demonstrate that they would bring their level of noise into conformance with the applicable DEQ regulations. He noted any state, federal or local standard might not regulate another category of conflicts. He said in that case, the determination of significance is up to the Board to determine whether that conflict had been minimized or not. He said it was not spelled out in any specific rule. He said the third category of conflict minimization occurs with agricultural practices and there is a specific statute, ORS. 215.296. In the case of agricultural practices, a test of whether something allowable is minimized, is whether or not the use will force a significant change in accepted farm or forest practices on surrounding lands devoted to farm or forest use, or whether it would significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use. He said it was up to the Board to determine what significantly increase or significantly change means.
Lanfear explained the rule specifies that the Board start with an impact area of 1,500 feet. He noted on page 11 of the staff report, it identifies that the local government shall determine an impact area for the purpose of identifying conflicts with proposed mining and processing activities. He said the impact area shall be large enough to include uses listed in (b) of this section and shall be limited to 1,500 from the boundaries of the mining area, except where factual information indicates significant potential conflicts beyond this distance. He noted through the process the impact area does extend farther out for several of the conflicts and the noise conflict had been identified as impacting a greater distance.
Sorenson asked if the 1,500-foot impact area was the maximum or if it could be larger under the state rules, depending on the type of conflict.
Lanfear responded this was the minimum.
Dwyer noted there was another process past the 1,500-foot impact. He asked if that is where the ESEE study comes in.
Lanfear said the ESEE analysis only applies if the Board finds conflicts can’t be minimized. He noted when the Board gets to each conflict (and they look at the impact area) they would be basing it on the information in the record and broader than the 1,500 feet impact when they get to groundwater, flooding and noise. He noted that groundwater, flooding and noise do extend beyond the 1,500 feet before the minimization techniques are proposed.
Dwyer asked if it was subjective if the minimization efforts beyond 1,500 could be addressed.
Lanfear said there is subjectivity as to whether or not a conflict is minimized, whether they believe the evidence from one side or the other is where the subjectivity comes in. He said as decision makers, the Board will need to base the decision on the evidence they believe to be more accurate than the other. He added under the Rule, the Board is required to determine the existing and approved uses in the area to evaluate for conflicts. He noted that all of the mining lies outside of the Willamette Greenway. He noted there were proposed noise berms for noise minimization and flooding control in Area 2 and Area 1. He said the areas are broken up into smaller cells and instead of mining one big pit, so when one is being mined, the previous one is starting to be reclaimed or used as a retention pond for groundwater control.
Existing and Approved Uses
Under the Rule, "Existing and Approved Uses," Lanfear said they are defined as dwellings allowed by a residential zone. He said some of the uses (with conditional or final approval from the County) that had been identified were 31 dwellings within the initial 1,500-foot impact area that are zoned for farm use, with eight dwellings on rural residential properties
Lanfear added there are BPA transmission lines and an approved conditional use permit for Lone Pine for commercial activities in conjunction with farm use. He noted another existing use is Beacon Landing, owned by the State of Oregon.
Green asked if mining was allowable in all the areas to be mined (such as H and I).
Lanfear responded they received comments from the Department of Geology and Mineral Industries and the Department of Fish and Wildlife expressing concerns about what would happen to the river during a flooding situation if those areas were mined too deep. He said they were possibly restricting it to 25-foot depths so in the event of a flood, the river could not be captured there. He said it was up to the Department of Geology and Mineral Industries as to how deep they would allow it. He added it looked like they would be restricting the depth.
With regard to the impact area, Sorenson asked if the issue of economy, or jobs, is part of what is meant by the impact area.
Lanfear explained the impact area is for identifying conflicts. They specify the list of conflicts that the Board looks at in the rule. He said if they find there is a conflict from the rule that is not minimized, when they get to the ESEE part, one of the E's stands for economic and that is where they could review all the economic impacts.
Sorenson asked who regulated the Willamette Greenway.
Lanfear stated the regulations for the Willamette Greenway are in Lane County’s jurisdiction. He noted Lane Code Chapter 16.254 deals with the Willamette Greenway Development permits, as part of the process (under 6 b) and they would be able to determine if the proposal conforms to the Willamette Greenway, Goal 15. He added at that time the applicant needs to demonstrate conformance with the Goal and there will be a discussion about meeting the Greenway provisions.
With regard to cells that might be restrictive, Dwyer asked what could be done by the Board in the approval process to ensure that what happens from the river doesn’t occur as a result of conditions required by the Board.
Lanfear said the Board can determine reasonable and practical conditions to assure the conflict is minimized. He said if the Board finds the mining of the cells past 25 feet is a conflict with riparian resources or represents a flooding conflict, the Board could restrict the mining to a certain depth. He added it had to be tied to a conflict that was identified.
Morrison asked if they were to restrict the depth of one of the components if it would impact the significance of the resource.
Lanfear stated the resource was still there. He said it was possible that in the future there could be technology that would allow it to be mined because the resource is still there.
Green asked how they were using reasonable and practical. He asked what could be considered reasonable.
Vorhes responded it would depend on the conflict and what the Board sees as evidence in the record that leads them to reach a comfort level that what is asserted to be done to minimize the conflict will be achieved. He said it would vary from conflict to conflict and in the proposal to minimize a conflict or a particular aspect of a conflict. He added the test of any appeal is how adequate the findings are in describing the rationale and how the Board reached the conclusion of mitigating measures being reasonable and what the evidence is in the record to support that conclusion.
Conflicts due to Discharge
Lanfear noted the first category of conflicts from the proposed mining that require determinations by Board are conflicts due to noise, dust or other discharges with regard to those existing and approved uses and associated activities that are sensitive to such discharges. He said through the process they identified conflicts that fall under this provision to be noise, dust, and groundwater discharge. Also, the noise minimization techniques of placing berms around the mining cells leads to another discharge under flooding.
Dwyer asked what percentage of prime soils was in cell number one.
Lanfear responded it was greater than 35% if they were looking at area one alone.
Lanfear noted the applicant performed noise studies at various locations. He said they took measurements and identified that the outer boundary represents the limit of land that would be subjected to noise in excess of the DEQ regulations, before any minimization techniques take place. He stated the applicant had reviewed the requirements. This was a conflict when they look at the relevant standards from a state law, so there are DEQ provisions that limit how much noise could be created with existing residences in the area. He said the applicant took the standards and applied minimization techniques so each residence would not be subjected to any noise in excess of the standard. He said they proposed noise berms along the edges of the mining areas.
Sorenson asked what Lane County’s standard was, versus the state’s.
Lanfear responded the Lane County noise standards do not apply to industrial uses. They are considering the DEQ standards solely in this instance. He said there is a standard called the ambient degradation rule which means that noise radiating from the site could not increase the existing hourly statistical noise levels by more than 10 decibels at any appropriate noise-sensitive receiver. He said they measured the existing noise levels in the area and it is only allowed to be increased by 10 decibels at any residence within the impact area. He added they use their judgment and take representative samples at varying distances from the noise sources. He said on the ambient level of noise in the area, the main source is traffic on River Road. He noted there were two parts to the DEQ standards and they have to meet the more restrictive one. He said there was an upper level for the noise that could be emitted. He said if the ambient degradation rule leads to a lesser level of noise, they have to meet it.
Vorhes explained the noise ordinance the County adopted has an exemption for industrial commercial uses.
Lanfear stated the standards from the DEQ regulations are listed in decibels. The daytime limit applies between 7:00 a.m. and 10:00 p.m. He said the levels are 55 decibels for levels that are more than 50% in any hour. He added at nighttime it drops to 50 decibels. He stated the applicant had identified the ambient noise levels in the area. They put into their analysis all noise that would be generated by the various equipment and they proposed minimization techniques.
Sorenson asked where the sampling took place.
Lanfear noted after they heard testimony from Mr. Noxon, the applicant, went back and did testing. He said their initial testing selected a few sites that were at varying distances from River Road to get samples of the ambient noise levels directly from River Road. He said they took one site that was 50 feet from River Road and another 350 east, another 250 feet south of Lone Pine and 2,100 feet from River Road. He noted they had five locations where they tried to get a representative sample of the ambient noise levels. He added after they heard the testimony, they verified their calculations would predict the correct amount of noise at the various residences.
Sorenson asked who determines a site (that was not yet built) that would violate a state administrative rule.
Lanfear said it was part of the Board’s decision process. He said the Board would base it on the evidence in the record. He said the Board might want to impose performance conditions to assure that the levels could be brought to levels that meet the DEQ standards.
Sorenson asked what the loudest and quietest decibels would be.
Lanfear noted the applicant’s engineer predicted a level of 81 decibels at the end of Lone Pine Drive. He noted in table 7 of the noise report, the applicant addressed what the noise limit is at each residential location they studied. He said if it exceeded the maximum allowable rule, then they listed the maximum allowable rule, as they would be limited to that. He added it wasn’t always the ambient degradation rule limit that applies. He noted the lowest ambient noise level would be 36 at night and 42 during the day, meaning the ambient would be 26.
Green noted that sound travels. He asked if there were anticipated complaints about the noise.
Lanfear stated the rule specifies that if there is a conflict regulated by a state, federal or local standard, the conflict is considered minimized if it is brought into conformance with the standard. He said if the applicant could demonstrate that they would bring the noise down and meet the DEQ standards, then it appears that conflict is considered minimized. He commented that the rule does not contemplate there would be no conflicts, it requires the conflicts be minimized below a significant level. He added if there was no standard, then it would be up to the Board to decide when it has reached that level where it is no longer significant.
Sorenson asked how they determined the noise level from a plant that had not yet been built.
Lanfear responded the applicant’s noise experts had used standard tables that contain descriptions of noise from the various equipment that is used. He added they had experience based on existing mining activities they would use to calibrate their model.
Sorenson asked how noisy it was.
Lanfear stated it was noisy enough that it exceeded the DEQ limits.
Dwyer asked how extensive the studies were with regard to the berms beyond the impact area.
Lanfear stated he went by what was in the record, and the Board would need to decide whether the studies presented by the applicant are believable or not. He said if they represent the science as presented by the applicant, and if the Board would accept that, they could reduce the conflict to a level that is no longer significant.
Sorenson asked what Art Noxon’s critique of the sampling was.
Lanfear noted that during the process, Noxon had identified 47 references to problems he has with the study. He added the applicant had responded to all of them and there was no response from Noxon during the last rebuttal period. Lanfear said it appeared the applicant addressed all of Noxon’s concerns.
Sorenson asked about the highs and lows caused by the equipment.
Lanfear responded that there is a table in their study that identified some of the machinery. He said there is general agreement that sound could be mitigated. He noted in table 5 of the applicant’s submittal, there is a listing of decibel levels associated with various equipment. He said that two impact crushers would generate 86 decibels, a triple-decker rubber coated wet screen would generate 89 decibels and a front-end loader would generate 79 decibels.
Vorhes explained as the rule describes the conflict in noise, it is a conflict in the mining area and that is the activity that takes place. He added when they start transporting material out of the mining area that is not considered part of the mining, that is subject to the noise conflict. He said the impact area might cover an area through which the haul road travels. He added whether they could look at the noise created by the trucks as they exit the mining area on the haul road and on River Road, (under the noise conflict) is where there is some interpretation. He said they have to focus on the noise generated in the mining area by the mining and processing, not the hauling.
Dwyer asked if there was any portion of the gravel operation that operates at night.
Lanfear said throughout the process, the applicant agreed to limit the operation to the hours mentioned. He said mining, crushing, aggregate sales and hauling would not exceed 6:00 a.m. to 5:30 p.m.
Dwyer asked if the noise included the trucks backing up and if there had been any information into the record as the vehicles go into reverse.
Lanfear said those types of noises from the operation fall under a different statistical level measurement and it is not something that is exceeded more than 50% of the time in an hour. He noted there were different measurements based on the duration of the noise.
Dwyer asked--assuming the Board agrees that the sound could be mitigated and it isn’t mitigated--who monitors the noise and what happens with repeated violations of the levels.
Lanfear responded that DEQ has dropped their enforcement piece out of their program so there is no DEQ staff enforcing these regulations. He said the Board would have the ability on any conditions that were placed on this to set up a monitoring program to identify what happens if the noise is exceeded.
Lanfear explained according to the applicant’s submittal, the placement of the berms and minimization techniques with their equipment would bring the DEQ noise levels within compliance within the area. He noted addressing existing land uses as they are defined under the rule (residences) and approved uses such as Lone Pine’s commercial activities.
Sorenson asked whether the noise rule applied on or off site.
Lanfear said the noise is generated on site and they are required to demonstrate that the noise created by the mining and processing meets the DEQ provisions off-site. He said the purpose of this review is to look at the impacts from the mining to the adjacent areas.
With regarding to noise, Lanfear noted there was a series of conditions that had been proposed to reduce the noise levels by the applicant. He said they had limited the hours of operation, limiting truck traffic to 40 truck loads per hour, using rubber screens or other noise reduction equipment on the conveyor, barriers on the crushing and screening operation, a silencer on the asphalt plant burner, sound absorbing material on the inside of the maintenance shop, enclose the compressor. He noted operational measures limit the use of equipment at the same time.
Dwyer was not convinced the evidence established noise would be mitigated or that the testing was sufficient to make the determination as to how the sound moves.
Lanfear said when they review the conflicts, they have to have findings that reflect the Board’s decision. He said they need to find out if the noise was minimized or not.
Green asked if they took a tentative position on one of the conflicts if that stopped the continuation of the process.
Vorhes recommended on the conflict analysis that they deal with all of them and not stop at any one, so they have a clear picture of where the Board in on everything. He said when they get to the ESEE analysis, it deals with all of the conflicts that could not be minimized. He suggested they go through each identified conflict individually so there could be a determination as to whether the Board thinks there are conflicts that are not minimized that would need to be addressed in the ESEE analysis. He said it was up to the Board to develop how to process this information and deliberate.
Lanfear explained that dust falls under the conflict that has an applicable standard that it needs to meet. He noted it is regulated by LRAPA in accordance with DEQ provisions. He said the proposal is expected to generate dust and the applicant had prepared dust studies that had been reviewed by the opponent’s experts. He noted there was not agreement between the two sides. He said the portions of the operations that produce the dust are the overburden removal, aggregate extraction, processing, the vehicle movements, storage piles and reclamation activities. He commented that the applicant maintained that the dust impacts at its worst case estimate did not exceed the 1,500-foot impact area. He said at the planning commission level, the applicant’s study demonstrated it would produce approximately 16 grams per square meter per month of dust outside the boundaries of the subject property. He noted the LRAPA standard was 3.5 grams per square meter per month. He said it was exceeded, and the planning commission made a finding that they did not comply with the minimization of dust conflict and as a result of that, the applicant went back to the study. There were proposed additional dust control measures including putting sprinklers along the haul road and deciding they would keep all on-site road surfaces moist in an effort to control the dust. He noted that brought the dust level down to 3.3 grams per square meter, below the 3.5 standard. They concluded that brings the project into conformance and minimizes the conflict. He noted the opponents had taken issue with a large number of aspects of the dust study.
Dwyer asked if there was a different standard for orchards.
Lanfear responded on farm practices and use, there is a different standard to be used, the increase of cost and increased change of practice. He said this piece of the conflict review was focusing on impacts to the houses and the existing approved uses, including Lone Pine’s commercial uses in conjunction with farm use.
The Board took a lunch break at 11:50 a.m.
The Board resumed at 1:30 p.m.
Dwyer asked the Board since they last met if they had any ex-parte conflicts.
Morrison responded she didn’t.
Sorenson said during the break he received a note from Mary O’Brien and he gave it to Steve Vorhes. He was approached by Mr. Stotter who wanted to know if more questions would be asked about the impact of dust on agriculture. He was visited by Eban Fodor and Fodor asked him if he was aware there was conflict about the impact of different heights of berms on noise.
Weeldreyer responded she did not have any ex-parte conflicts.
Dwyer did not have any.
Lanfear described the LRAPA standards for dust and what the applicant’s study showed. He noted that LRAPA’s standards were not exceeded anywhere on or off site.
Sorenson asked if there was any other testimony concerning dust and whether or not the dust standard would be violated.
Lanfear responded there was evidence in the record from Mark Chernack, Environmental Scientist and a report from a Camille Sears, who evaluated the applicant’s information and found problems with it. He noted the best response from the applicant is in Exhibit 702 (b).
Sorenson asked whether or not the standard would be violated.
Lanfear noted the conclusion of the opponent’s dust studies is that the dust study submitted by the applicant is not reliable and does not predict the dust levels accurately, the dust levels would be exceeded at neighboring properties.
Green returned. Dwyer asked him if he had any ex-parte contacts during the lunch break.
Green replied he had none.
Sorenson asked if the standard they were discussing was a weight per square meter. He asked what the rule was and whether the proposal met the rule.
Lanfear responded that according to the Sears’ report, the applicant had overestimated the amount of dust they could control on site and the dust emissions from the operation would exceed the standard. He stated the project was reviewed by LRAPA and they thought it could be accomplished.
Green discussed section 5.1, and how Eugene Sand and Gravel would impact airborne dust. He asked if the planning commission took this into consideration.
Landfear said the applicants received some information in the record that there is a new standard that just went into effect at the DEQ for the smaller particles of dust that travel farther. He said they contend they meet the standard and factored those 2.5 micron emissions into their PM 10 emissions. He said they represent about 32% of the particles in the PM 10 group.
Green noted there was nothing in the record predicting how Eugene Sand and Gravel’s proposed facility will impact levels of the PM 2.5 in the area adjacent to the facility. He asked if LRAPA had seen this report.
Lanfear believed LRAPA saw the final dust submittal from the applicant and found it to be adequate. He stated that LRAPA had not commented on Chernack’s letter.
Sorenson noted on page 5 of Sears report, it was mentioned that the modeling done by Bridgewater used one year of meteorological data from 1991, from the Eugene Airport and it was one-fifth of the duration required for regulatory purposes. He said Sears commented they should have used five years of meteorological data when estimating concentrations with an air quality model. He asked if there was a requirement within the category of dust to conduct a dust study using the five-year model.
Lanfear responded the applicant maintained there was some discretion that they are allowed to use one year of data if the source of the data is close enough to the site to make it representative. He said the conditions at the airport are the same as the conditions at the site because there are no intervening hills or topography changes between the two areas. He added that LRAPA had only required one year of data on prior projects.
Sorenson noted the requirement was the 3.5 grams per square meter standard and that is a USEPA and LRAPA rule. He asked what the Board had to decide.
Lanfear said the Board has to decide if the applicant’s dust study is believable or not. He noted there was discretion over whether they think the dust study conclusively supports a finding that the conflict is minimized and whether they could meet the standard. He added the Board has to decide which evidence in the record is more credible.
Sorenson asked how they were to distinguish dust.
Lanfear explained this level is focusing on impacts to existing and approved uses that are mostly residences and is regulated by the standard for LRAPA. He said under this provision, if the Board believes they can meet the LRAPA standard, then the conflict is minimized at this step. He added under agricultural practices, they would look at impacts to agricultural practices from dust, and use the ORS 215.296 standard over whether it causes a significant increase in cost or forces a significant change in practices.
Sorenson asked if they were bound by the determination of LRAPA that the plan as currently contemplated would not violate the 3.5 grams per square meter dust standard.
Lanfear said they reviewed the report and found it to be adequate, addressing their standard based on information in the record.
Sorenson asked if they found that the 99% efficiency rate on the watering of the roads would be increased if they had paved roads) that was something that could be required as part of the process.
Lanfear said the Board could add reasonable and practical conditions to minimize a conflict.
Morrison noted that Sorenson was on the LRAPA Board. She asked him if permits came before his board.
Sorenson responded they rarely did.
Lanfear explained this was a conflict that arose from minimizing another conflict. He noted the properties in the 100-year flood plain go from River Road to Coburg Road. He commented there were higher areas south of the site. He said the levels of the flood impact from the project (without any minimization techniques) would rise 1.93 feet in the Oxbow. He noted it is a conflict that has a local standard to meet that Lane County has adopted in conformance with the National Flood Insurance Program. He noted the FEMA requirements are that the community could only allow one-foot rise in floodwaters from development in any section of the river. He said the proposal (if no minimization of the conflict took place) would generate an almost two foot rise in the Oxbow area. That would exceed the standard and not be allowed. He said the applicant had proposed to minimize this conflict through an overflow channel. He said on the applicant’s study, they had shown that the increases in the main stretch of the river would increase .39 feet (less than one-half foot) and their proposal will meet the FEMA and Lane County requirement of producing a less than one-foot rise in floodwaters during a 100 year event.
Sorenson asked if there were any other standards besides the 12” FEMA standard.
Lanfear said he wasn’t aware of any. He noted the modeling that is used to predict floods uses a manning co-efficient. That means that water moving across a cultivated field would move at a different rate than over a forest or across a paved surface. He said there were assumptions in the modeling for what would be an appropriate co-efficient of friction to use across the site. He noted the two sides had a difference of opinion of what is appropriate to use to co-efficient for friction. He stated that Ms. Petroff showed in her study that if they change the number a certain amount, it causes a different result. He said regardless of how she manipulated the data, she never maintained that it went over a one-foot increase. He said the applicant would maintain that they had used their professional judgment and used the friction co-efficient consistent with how the flood study acts throughout Lane County. He stated it was up to the Board to decide if they believe the applicant’s modeling was correct. He stated even under Petroff’s study, she doesn’t claim that it causes a rise of more than one foot.
Sorenson asked if there was any issue about the strength of the overflow area.
Lanfear responded the construction had not been challenged, it is supposed to be an armored overflow area. He noted there might be wetlands issues that would have to be resolved with the Division of State Lands. He added that Fish and Wildlife is concerned about the overflow area acting correctly, as is DOGAMI.
Lanfear said the groundwater conflict falls under the discharges. He noted what was being proposed is dewatering of the area to mine below the water table. He stated the mining plan as submitted, calls for digging out one cell at a time. He said when they mine below the water table (20 to 30 feet below the surface) the water will start to pour into the mine and into the pit. He added they could do wet mining down to about 25 feet. He noted once they get below that level, pumps would be used to pump the water out of the pit so mining could continue. He commented that the concern with the groundwater conflict was that as they get deeper into the pit and water is flowing into it, it lowers the water table. That makes it difficult for the farms and residential wells in the area to function properly. He added if the water is drawn down too far, then wells could go dry, or there wouldn’t be enough water for irrigation for farm purposes. He said there wasn’t a standard to apply for groundwater. He said the conflict needs to be determined to be minimized below a significant level, but there is no government standard to apply. He noted the applicant had done a groundwater study and have impacts that they had identified, with a proposed solution that involves digging a trench around each of the mining cells that would intercept the groundwater and pump it back into the aquifer.
He said as far as maintaining the water levels in the area to existing levels, there might be one in Hermiston where they are doing this that is discussed in the record. He stated the applicant maintains that they can keep the water table to within one foot of its current level while mining. He said the opponents had reviewed the proposal and Joel Massman, University of Washington, had reviewed the submittals. He had problems with their methodology and results. He stated the applicant maintained this was a workable solution. DOGAMI also responded that it was a workable procedure.
Dwyer asked if there were problems with the aquifer if mining would not be allowed.
Lanfear responded DOGAMI would have the authority to stop the mining. He said DOGAMI claims they could monitor it close enough so if problems begin to arise, they could step in and stop it from going further. He added they could require that the applicant replace someone’s well if necessary.
Dwyer assumed the landowners had water rights and any withdrawal would be junior. He had questions around water and the impacts and what could be done.
Lanfear said the applicant stated they would supply the water and replace it if it is impacted. He said they maintain their studies were accurate and this could be accomplished. He said it was a matter of which evidence the Board chooses to believe.
Dwyer asked how DOGAMI could guarantee the water would be replaced when they don’t control the water law related to it. He asked under the doctrine of prior appropriation where it is first in line, first in time, if they had a date associated with use and how they would be impacted by the aquifer. He said the water master would shut off the later dates. He asked how DOGAMI could guaranty the same date on the proceeding that would allow the resource in conformance with the doctrine.
Lanfear commented there were a number of water rights that go with the subject property. He said there are old water rights with this land that the applicant could transfer. He added a substantial part of the property would remain in farmland as they are mining the smaller cells. He said the property is 575 acres and only 230 are proposed for mining, with the rest for farmland. He stated the water rights that go with the farmland could be transferred.
Dwyer was concerned about water rights being transferred from an out-of-stream use to a different use.
Sorenson asked why one report stated 100,000 to 300,000 per gallon per foot would be used with the other report only using 2,000 to 3,000 gallons per minute into the pit when it is being mining.
Lanfear understood that EGR was predicting there would be 2,000 to 3,000 gallons per minute flowing into the pit when they are mining it. He added Massman was predicting 105,000 per minute into the pit. He said EGR stated in their report that they used a calculation on the conservative side to estimate impacts to wells. He said when they did a pump test on their well, they used a well that had the greatest rate of water. He said they used that to analyze impacts to wells. He noted it was not the same number they would use to figure out how much water would be coming into the pit. He said that Massman used that number to estimate how much water would come into the pit. He added that EGR stated that, based on their experience at the existing pits in the Eugene Springfield area, the normal rate of flow is about 2,000 to 3,000 per minute. That was being pumped into the ground. He said Massman thought it would be 105,000 per minute and there was no way they could pump that much water out.
Sorenson asked how many wells were in the impact area.
Lanfear stated there are 42 well logs for wells drilled in a two square mile area.
Sorenson asked if the Board assumes there are no groundwater conflicts, what standards they would try to achieve.
Vorhes responded the standard is the rule that says they have to identify the conflicts and determine whether those conflicts could be minimized. He added the definition of "minimized" means they reduce the conflict to where it is no longer significant. He noted there was not a separate agency standard, the standard is contained within the Goal 5 Rule. He said if the Board concludes there are no conflicts, then they move onto the next step in the process. If they conclude there are conflicts, the focus would have to concentrate on whether the conflicts are significant. If they are significant, then it would be necessary to determine whether they could be reduced by mitigation to where they are no longer significant.
Dwyer asked how could a conflict be no longer significant if the law doesn’t allow what they are planning to do.
Vorhes explained part of the analysis would need to consider if an impediment to the mitigation results in the conclusion that the conflict continues to exist at a level that is significant. He added that in looking at the result of mitigation, it might not put things exactly where they were before this started, but part of the Board’s analysis and conclusion would need to determine whether conflict no longer is significant.
With regard to the existing water rights on the subject property, Lanfear reported it totaled 2,314 gallons per minute. They were estimating they would need to use 2,000 gallons per minute for their operations, irrigation, potable supply and air quality protection.
Dwyer asked where the water would be coming from. He asked how they provide more water than they might legally have available.
Lanfear responded a condition could be crafted that accounts for the situation. He noted there was flexibility on practical and reasonable conditions to make sure this conflict is minimized.
Vorhes noted the variety of concerns the Board will have to consider in trying to address what the conflict is, and what the solution to the conflicts might be. He said there might be ways to answer the questions that were raised. He noted there might be ways in dealing with water that don’t limit the applicant to using what the rights are on the property they own, but it might raise the question of whether the replacement rights are comparable enough so that there is no longer a significant conflict. He said the Board needs to look at conditions to deal with the conflict to provide the mitigation that they are looking to provide.
Dwyer asked if the conditions were allowable under current law.
Vorhes stated it would depend on the nature of the concern and the specific condition contemplated by the Board to address that concern. Without knowing those specifics, there might be directions the Board looks at to address a conflict they would find if they looked carefully. There may be some instances that create difficulty if the Board were to require something that isn’t allowed under established water law and in that case they might reach a conclusion that this conflict could not be minimized
Sorenson asked if Lane County approved this, and it turned out the water is pumped from an aquifer and it deprives the farmers of their water, if Lane County would have civil liabilities to the farmers.
Vorhes noted that part of the effort of the Board is to take reasonable steps to insulate the County from liability. He said they could make sure the responsibility does rest with the landowner to do what is necessary to avoid the impacts.
Sorenson asked if there was a bond as part of the County approval process in case there was some financial problem associated with the loss of the water.
Lanfear didn’t know what else could be done to mitigate the impact. He said a bond could be a requirement set by the Board as a condition of approval.
Morrison asked if they required a bond, what formula would they use to justify that the bond would cover the need.
Vorhes said they would have to look at what they want to insure against and what the cost would be. He said they could try to anticipate what the Board wants to have the bond insure against, and calculate what the costs would be with the present day dollars. That is what the performance bond is designed to cover.
Green asked, since there were no federal or state standards being applied, what criteria they would use.
Vorhes replied the ultimate task under the Goal 5 Rule in the conflict analysis is whether the conflict can be minimized. What that means under the Goal 5 Rule is that they could reduce the conflict to the point where it is no longer significant.
Sorenson asked if there was any data as to how many wells would be affected, assuming the EGR estimate was accurate.
Lanfear said the average well is drilled to 27 feet. He noted most wells are just drilled to the top part of the water table. A significant drop would cause the wells not to access water depending how far they were from the actual mining cell.
Weeldreyer asked if water rights could be transferred from one rural property to another.
Lanfear responded there is a letter from Water Resources that said they could transfer the existing water rights on the subject property over to the industrial use.
Weeldreyer asked if this was a question the water master from Lane County could answer before they conclude deliberations.
Vorhes said they could ask questions and consider reopening the record to allow additional information to address those questions. He noted an option was to let staff look at the question and look in the record to see if there was anything more in the record that addresses the concern.
Weeldreyer said she would have a higher comfort level if Eugene Sand and Gravel had to replace someone’s well if there were a water right issue caused by mining.
Dwyer commented that DOGAMI might be able to make some adjustments as it applies to a mining site, but they cannot make changes to the statute on water rights or water law. He added they assume when they grant the permits that all of the other things are legal and permissible and the consent is there as part of their permitting process. He said they couldn’t make or change law.
Weeldreyer requested that staff look through the record to see if that particular question could be clarified to provide information to the Board as they move through the process. She added if they couldn’t find the clarification, to have the Board have a discussion about reopening the record to allow that information to be entered in by the state water master.
Dwyer asked if new wells that are drilled (as a result of the impact of an adjacent complex) have the date and standing as the one that had been impacted. He also asked where the water would come from that requires 3,000 gallons when they have water rights for 2,314 gallons.
Weeldreyer concurred with Dwyer's questions.
Conflicts to Local Roads
Lloyd Holtcamp, Transportation Planning Section, reported that last summer the applicant submitted findings into the record and the County transportation staff submitted recommendations. (File document 752). He said they made their comments on the applicant’s set of findings and conditions of approval. He recalled the applicant agreed to the street improvements they suggested. He noted they were looking at identifying potential conflicts and they listed the conflicts they were to address to determine if there were conflicts to the roadways within one mile of the proposed entrance onto River Road. He said they were going from their proposed access point 1.4 miles north of Beacon Drive on River Road. He noted that River Road south of the Beacon Drive intersection was the nearest arterial. He added the applicant had proposed an alternate route they will use for their loaded vehicles. He said they would take the trucks on River Road south, turning west on Beacon Drive and taking it to Prairie Road and then to the Northwest Expressway, going south to Beltline, then entering Beltline eastbound to the existing site on Delta Highway.
Holtcamp explained the conflicts are to be minimized to a level that is no longer significant. He said they were using Lane Code Chapter 15 in the Lane Manual, implementing ordinances from the Lane County 1980 Transportation Plan. He noted the potential conflicts to be identified are site distance, road capacity and traffic volume capacity. He said with road and traffic capacity, they had identified conflicts. He noted based on the applicant’s traffic generation numbers for the use (to sustain the existing design life of the routes) and the traffic volume, they are using highway capacity software to study intersections and whether they meet the minimum standard that the County would allow, (Level of service D). He said impacts were identified with the highway traffic volume capacity. They identified a left turn lane eastbound on Beacon Drive as it approaches River Road as operating at a level of service E. He noted the applicant’s traffic engineer recommended that a northbound right turn lane be provided into the applicant’s site and a southbound right turn lane on Rive Road as it travels south to Beacon Drive, going westbound. He added that ODOT examined the impact of the applicant’s proposal, as it requires going south on Northwest Expressway intersecting the ramps at Beltline Highway and going east to the applicant’s current location.
Holtcamp said they have to determine if conflicts need to be minimized, including horizontal and vertical alignment. The applicant found none. He said they also look at the Transportation Plan and implementing ordinance in Chapter 15 in Lane Code and Lane Manual. He stated that the procedure for Lane County is if a development occurs the applicant provides the improvements necessary to accommodate the use. That is in the supplemental agenda cover memo for July 31, 2001. He stated the applicant had agreed to provide that. He added the County has a construction project that had been in the CIP prior to this coming to the Board. He noted the construction project is on River Road from Carthage Avenue north to Beacon Drive. He said the County staff had recommended that left turn lanes be provided at all approaches to the Beacon Drive, River Road intersection. They are also recommending cable being provided for future signal installation at that intersection. He noted the southbound right turn lane at the Beacon Drive intersection would not be needed as part of the County project, but something the applicant would need to provide.
With regard to Phase 1 and Phase 2 and North Delta Highway, Morrison asked when the transition to the new plant would take place.
Holtcamp responded what was in the original information was off from a timing standpoint. He stated that it says Phase 1 would begin in 2000, with mining of the rock only and the crushing operation would remain at Delta Highway for four years. He added Phase 2 would be 2004, that is onsite crushing and screening operations added to the mining at the new site. He said that Phase 3 would be in 2008 and onsite asphalt and concrete batch mix added to the Phase 2.
Sorenson asked what rule they were supposed to apply with the local road portion.
Holtcamp noted the process would be to identify the conflicts based on traffic volume conflicts. They would need to maintain a level of service D.
Lanfear added the Rule lists site distances, road capacity, cross-section elements, horizontal and vertical alignment and similar items in the Transportation Plan. He added there are ASHTO standards that apply to road capacity and other items.
Holtcamp noted the applicant had agreed to fund the items they had identified. He added the Board also has the option to fund part of that.
Vorhes explained that there are standards that are used to identify what the conflicts are and whether what is proposed would create conflicts. He said they would still be in the Goal 5 Rule, with the test being one of minimizing conflicts that had been identified and whether the conflicts could be reduced to the level where they are no longer significant. He said the ASHTO standards provide a measure to identify where the problems are created by the road traffic on County roads and provide a way to describe what is necessary to minimize the conflict.
Sorenson asked if all standards had been complied with.
Holtcamp responded they had been addressed to their satisfaction. He said they looked at site distance. The ASHTO design manual is used to outline what the site distance is. He noted the whole route the applicant was proposing was relatively level terrain and the site distance is good. He said they had no problem with the items. He said on pavement structural capacity, they were looking at the similar items in the Transportation Plan and implementing ordinances. He noted if they identify that the pavement structure is not adequate to accommodate the applicant’s proposed use, then they would ask that they provide additional pavement structure.
Green asked about the grade of the road and the weight impacting the River Road traffic pattern, north and south. He noted the road currently was not in top condition. He asked if the weight of the trucks would impact the infrastructure.
Holtcamp noted there were some asphalt overlays recommended for applying to River Road, Beacon Drive, Prairie Road and Northwest Expressway. He added there was currently approximately 7,000 vehicles per day on River Road just north of Beacon Drive with a projected 2% annual growth in traffic not related to the applicant, or approximately 150 vehicles.
Lanfear explained there was a letter from ODOT that addressed Beltline. He said their only concern was Northwest Expressway.
Sorenson noted the company pays a weight mile tax to the state, but the County receives the money. He asked why the Board had the power to issue further financial requirements to get the permit.
Vorhes responded the conditions proposed by the applicant are to address the conflicts addressed under the Goal 5 Rule. He said the conflict this proposal is creating provides enough of a connection, and in looking at the conditions and the additional improvements that are required, they are related to the traffic and the impact of the development on the local road facilities.
Sorenson asked if too much traffic was a standard.
Vorhes responded that the number of trips it does reflect itself in the level of service impacts. He said it could have impacts on the road structure and there are ways to mitigate them. He said they have to point to specified areas of analysis under the rule in terms of conflicts, and deal with conflicts resolution as part of the Goal 5 Rule. He said when they get to Goal 12, they will look at level of service. He said if it means changing a level of service, there are ways to address that.
Morrison wanted to make sure there weren’t any conflicts with imposing weight mile fees.
Vorhes noted the weight mile tax is imposed to address the overall road concerns and normal wear and tear and how the traffic is running, without regard where it is taking place. He said the assumption is that it could be used anywhere in Lane County. He explained this process is looking at the change in traffic occurring on the local roads (limited to the impact area under the Goal 5 Rule) and what is happening to the road because of the change in traffic caused by the new development in the area, above and beyond the normal wear and tear of traffic. He noted the Goal 5 process looks at the conflicts created by the trucks coming out of the mining area using the local roads within the impact area and the mitigating measures that could minimize those conflicts.
Morrison stated if they eliminate the improvement requirements in this application it is a conflict with what the Board had done in the past.
Green noted the Planning Commission was concerned about how the applicants’ use of the out of direction route would be enforced. He stated in the record that the Lane County Land Management Compliance Program would enforce it, but it didn’t say how. He understood that Lane County only has two compliance officers, one for East Lane County and one for West Lane County. He stated it was complaint driven and resource starved. He asked how this would be enforced.
Howe explained the condition of approval could be worded so the burden to be achieved is borne by the applicant. He said they could provide an agreement with Lane County to monitor truck methods to prevent deviation and provide internal instruction to the drivers of the trucks. He said if they would monitor it, and it would be complaint-driven, then the compliance department would have to deal with it.
Dwyer stated the reason the weight mile tax was not sufficient is because the structural impacts caused by the development are extraordinary and directly related to the development and to the current service. What is needed to bring up the standards so it doesn’t degrade the current road service. He noted the applicant’s agreement to provide those additions and upgrades so it doesn’t impact traffic is a condition of receiving application approval.
Morrison noted the Planning Commission wrote what the route was supposed to be. She thought it would be a conflict that was hard to enforce.
Vorhes explained there is a condition that discusses an agreement between the applicant and the County which details differentiating between a normal delivery to a site that calls for a product using River Road as a haul road from Beacon to Beltline. This condition is designed to alleviate that. He added there could be details that could be worked out in the condition to articulate how to differentiate between violation of the condition and a normal business endeavor that is allowed, and not limited by the condition.
Sorenson asked if they could impose a limit on the number of trucks using a County road as part of the approval.
Vorhes responded it was possible. He said there is a proposed condition that limits the number of trips based on the noise impacts. He said if there are concerns about the impact of a number of trucks on the County road facility, that could lead the Board to conclude a way to minimize the conflict to make it no longer significant would be to limit truck travel across the road.
Sorenson asked what the impact on this would be from Measure 7.
Vorhes commented that Measure 7 focuses on compensation. He said that if Measure 7 was upheld, there was a potential for this action to include Measure 7 issues.
Dwyer stated this meeting would be continued on Tuesday, March 19, 2002 at 9:00 a.m. in Harris Hall, starting with E. Safety Conflicts with Existing Public Airport. He added he would reserve another day if they don’t complete this on March 19.
Adjourned at 4:50 p.m.