HomeMy WebLinkAboutItem 6: Ordinance on Delta Sand and Gravel
ECC
UGENE ITY OUNCIL
AIS
GENDA TEM UMMARY
Action:
An Ordinance Concerning Delta Sand and Gravel
An Ordinance Denying Proposal to Amend the Eugene-Springfield Metropolitan Area
General Plan (Metro Plan) to Revise the Goal 5 Significant Mineral and Aggregate
Resources Inventory and Redesignate from “Agriculture” to “Sand & Gravel;” and
Providing an Effective Date
Meeting Date: July 28, 2008 Agenda Item Number: 6
Department: Planning and Development Staff Contact: Kurt Yeiter
www.eugene-or.gov Contact Telephone Number: 682-8379
ISSUE STATEMENT
Delta Sand and Gravel has applied to Lane County for amendments to the Metro Plan, a change in
zoning, and two variances to allow an expansion of their aggregate resource extraction business (a
quarry) onto a property located immediately outside the Eugene Urban Growth Boundary (UGB). The
requested Metro Plan amendment requires approval by both the County and the City of Eugene. Lane
County has unilateral authority over the requested zone change and variances.
This is a continued discussion from April 21, 2008. The agenda item summary from the April 21, 2008,
meeting is included in Attachment D for a full description of the issues and background.
BACKGROUND
On April 21, 2008, after reviewing draft ordinances and findings, the council passed the following motion:
“In lieu of adopting an ordinance tonight, I move to direct staff to perform further analysis of the
application’s consistency with the criteria, considering citizen involvement and transportation-related
impacts, impacts caused by mining of the aquaclude within 150 feet of existing residences, noise impacts
on existing residences and the impact approval would have on the supply of residential land. I further
move to direct staff to, if that analysis warrants, return to City Council with revised findings for
Ordinance 1 (Council Bill 4791) determining that the application has failed to meet additional criteria.”
Staff analysis requested by this motion is provided as Attachment A to this agenda item summary.
Attachment B includes a copy of Ordinance 1 (Council Bill 4791, initially provided to the council for the
April 21 work session) with a set of revised findings. As requested by the council motion, the findings in
Attachment B include additional findings on the identified issues, where staff have determined that the
record supports a finding that the application failed to meet applicable criteria. The findings show, in
legislative format, changes to the findings of denial that were provided in Attachment B to the April 21
Agenda Item Summary. Attachment C includes the same ordinance and findings as Attachment B, but in
final format suitable for adoption (without the legislative format in the findings).
Z:\CMO\2008 Council Agendas\M080728\S0807286.doc
These revised findings would deny the application based on the following reasons:
a. The application was not complete because it did not include a traffic impact analysis;
b. The applicant failed to prove the site contains significant aggregate resources;
c. Dust conflicts were not adequately minimized;
d. Noise conflicts were not adequately minimized; and
e. Traffic impacts were not adequately quantified.
RELATED CITY POLICIES
The Land Use Board of Appeals (LUBA) has recently interpreted relevant state rules and determined that
the comprehensive regulatory scheme governing this matter supersedes local land use policies.
Therefore, local policies are not applied to the application.
COUNCIL OPTIONS
The City Council may consider the following options:
1. Adopt the draft ordinance and findings included in Attachment B (legislative version) and C (clean
version).
2. Adopt the draft ordinance and findings included in Attachment B (legislative version) and C (clean
version) with specific modifications as determined by the City Council (e.g., pass a motion to
remove specific findings).
3. Direct the manager to prepare one of the three draft ordinances described in the April 21, 2008,
AIS, included as Attachment D.
CITY MANAGER’S RECOMMENDATION
The City Manager recommends that the council adopt the ordinance and findings contained in
Attachment C, which will deny the application based on the reasons outlined in the staff analysis
described in Attachment A.
SUGGESTED MOTION
Move to approve the draft ordinance attached as Attachment C, including the findings attached to the
ordinance.
ATTACHMENTS
A. Staff analysis of issues requested by the council on April 21, 2008
B. Ordinance 1 (Council Bill 4791, initially provided to the council for the April 21 work session) with
revised findings shown in legislative format
C. Ordinance 1 (Council Bill 4791, initially provided to the council for the April 21 work session) with
revised findings. This is the same ordinance and findings as provided in Attachment B, but in final
format for adoption
D. Agenda Item Summary from April 21, 2008, work session
A complete copy of the record has been placed in the Council Office.
Z:\CMO\2008 Council Agendas\M080728\S0807286.doc
FOR MORE INFORMATION
Staff Contact: Kurt Yeiter, Senior Planner
Telephone: 682-8379
Staff E-Mail: Kurt.M.Yeiter@ci.eugene.or.us
Z:\CMO\2008 Council Agendas\M080728\S0807286.doc
ATTACHMENT A
Staff Analysis for Delta Sand and Gravel
July 28, 2008
On April 21, 2008, after reviewing draft ordinances and findings, the City Council passed
the following motion:
“I move to direct staff to perform further analysis of the application’s consistency
with the criteria, considering citizen involvement and transportation-related
impacts, impacts caused by mining of the aquaclude within 150 feet of existing
residences, noise impacts on existing residences and the impact approval would
have on the supply of residential land. I further move to direct staff to, if that
analysis warrants, return to City Council with revised findings for Ordinance 1
(Council Bill 4791) determining that the application has failed to meet additional
criteria.”
Staff’s analysis below addresses the issues contained in the motion and, where revised
findings could be warranted, a generalized description of the revised findings.
Attachment B includes the draft ordinance denying the application, with modified
findings incorporating the findings recommended in the staff analysis. These changes to
the findings are shown in legislative format.
1. Citizen Involvement (Goal 1)
The City is required to consider citizen involvement under Statewide Planning Goal 1
(“To ensure the opportunity for citizen involvement in all phases of the planning
process”). Findings responding to Goal 1 are especially important for this project
because there was public testimony that raised concerns about the citizen involvement
procedures used to consider the application.
The Goal 1 findings, as they appeared in the materials for the Council’s April 21, 2008
work session, address the concerns raised by some participants as follows:
”Some participants raised concerns about the procedures used to consider
the application. The applicant’s request is composed of numerous
applications. Those applications, taken alone, would be subject to
different review procedures under the City and County Codes. Under one
applicable process, the City Council and Board of Commissioners would
not have accepted new evidence for their review (instead, they would base
their decision on the evidence gathered in the Planning Commissions’
process). However, another applicable process required them to accept
new evidence. To allow for a consolidated review while ensuring that no
participant’s substantial right is prejudiced, the City and County opted to
accept new evidence. The criteria applicable to the applications are very
similar, making it nearly impossible to judiciously oversee a process that
allowed new evidence only with respect to one of the applications, but not
the others. By providing for all of the procedural safeguards for a quasi-
judicial evidentiary hearing, the City and County ensured that Goal 1 was
satisfied.”
Staff Recommendation: In response to Council direction given at Council’s April 21,
2008 meeting, staff has performed further analysis of the application’s consistency with
Goal 1. Based on that analysis, staff recommends that the City’s final decision include
the above findings with no changes.
2. Transportation-Related Impacts
In this case, the City is required to consider traffic impacts under both Statewide Planning
Goal 5 and Statewide Planning Goal 12.
The applicant did not provide a traffic study, as the applicant maintains that there will be
no additional impact over current operations. The applicant’s material indicates that the
traffic volumes and location of ingress and egress will not change from current
operations, and identifies the local roads to be used for access and egress.
The County Engineer waived the requirement for a traffic impact analysis as permitted in
Lane Code 15.697(2) because the Engineer made the determination that the scale and size
of the proposal is insignificant, eliminating the need for detailed traffic analysis of the
performance of roadway facilities for the 20-year planning horizon.
A. Statewide Planning Goal 5
The Goal 5 rule requires the City to make an initial determination as to whether the
information in the application is “adequate.” OAR 660-023-0180(8). As relevant to this
application, the transportation-related portion of that rule provides that an application
“shall be adequate” if it includes:
“(c) A traffic impact assessment within one mile of the entrance to the mining
area pursuant to section (5)(b)(B) of this rule;”
OAR 660-023-0180(5)(b)(B) provides:
OAR 660-023-180(5) -- For significant mineral and aggregate sites, local
governments shall decide whether mining is permitted. For a PAPA application
involving an aggregate site determined to be significant under section (3) of this
rule, the process for this decision is set out in subsections (a) through (g) of this
section.
* * *
(b) The local government shall determine existing or approved land uses
within the impact area that will be adversely affected by proposed mining
operations and shall specify the predicted conflicts. For purposes of this
section, "approved land uses” are dwellings allowed by a residential zone
on existing platted lots and other uses for which conditional or final
approvals have been granted by the local government. For determination
of conflicts from proposed mining of a significant aggregate site, the local
government shall limit its consideration to the following:
* * *
(B) Potential conflicts to local roads used for access and egress to
the mining site within one mile of the entrance to the mining site
unless a greater distance is necessary in order to include the
intersection with the nearest arterial identified in the local
transportation plan. Conflicts shall be determined based on clear
and objective standards regarding sight distances, road capacity,
cross section elements, horizontal and vertical alignment, and
similar items in the transportation plan and implementing
ordinances. Such standards for trucks associated with the mining
operation shall be equivalent to standards for other trucks of
equivalent size, weight, and capacity that haul other materials;
As part of the City Council’s deliberations on February 21, 2007, the Council made a
preliminary determination that the application was “adequate” for purposes of OAR 660-
023-0180(8) and that (if the application could be approved under other criteria) the
proposed expansion would not cause conflicts with local roads used for access and egress
to the mining site under OAR 660-023-0180(5)(b)(B). Therefore, the findings presented
to the Council for the April 21, 2008 work session included the findings to that effect.
B. Statewide Planning Goal 12
The rule implementing Statewide Planning Goal 12 provides:
OAR 66-012-0060(1) * * *Where an amendment to a * * * comprehensive plan *
* * would significantly affect an existing or planned transportation facility, the
local government shall put in place measures as provided in section (2) of this
rule to assure that allowed land uses are consistent with the identified function,
capacity, and performance standards (e.g. level of service, volume to capacity
ratio, etc.) of the facility. A plan or land use regulation amendment significantly
affects a transportation facility if it would:
(a) Change the functional classification of an existing or planned
transportation facility (exclusive of correction of map errors in an adopted plan);
(b) Change standards implementing a functional classification system; or
(c) As measured at the end of the planning period identified in the adopted
transportation system plan:
(A) Allow land uses or levels of development that would result in types or
levels of travel or access that are inconsistent with the functional classification of an
existing or planned transportation facility;
(B) Reduce the performance of an existing or planned transportation
facility below the minimum acceptable performance standard identified in the TSP or
comprehensive plan; or
(C) Worsen the performance of an existing or planned transportation
facility that is otherwise projected to perform below the minimum acceptable
performance standard identified in the TSP or comprehensive plan.
As discussed above, on February 21, 2007, the City Council made a preliminary
determination that the proposed expansion would not cause conflicts with local roads
used for access and egress to the mining site (under OAR 660-023-0180(5)(b)(B)). To be
consistent with that determination, the findings staff presented to the Council for the
April 21, 2008 work session included the findings of consistency with Goal 12.
Staff Recommendation: In response to Council direction given at Council’s April 21,
2008 meeting, staff has performed further analysis of the application’s consistency with
these Goal 5 criteria. Based on that analysis, revised findings are offered as a defensible
substitute for the findings under OAR 660-023-0180(8)(c) and -0180(5)(b)(B). Under the
revised findings, the council will find that the application was not adequate for lack of a
traffic impact analysis, certain traffic impacts were not adequately addressed for lack of
the analysis, and that without data about the facility’s current transportation impacts, the
City cannot formulate a condition to ensure consistency with Goal 12 criteria.
3. Impacts Caused by Mining of the Aquaclude within 150 Feet of Existing
Residences
Background. The aquaclude is a subsurface barrier of poorly permeable material
proposed to mitigate possible groundwater depletion and reduce the amount of
groundwater seeping into the mining excavation area. The aquaclude would be created
by excavating a trench at least 30 feet deep to a layer of older alluvium rock where there
is no visible ground water flow, then re-filling most of the trench with clay and ash
material. Permeable soil (overburden) and other material will be re-placed on the top 11
feet so that groundwater cannot back up to surface levels behind the aquaclude (to avoid
flooding). The application and supporting materials in the record depict the trench as a
sloped trapezoidal channel, but the width of the trench at the top is not determined in the
record.
State Goal 5 rules for mining set a minimum 150 foot setback from property lines, which
is enforced by the Department of Environmental Quality (DEQ). This regulation is also
contained in Lane County Code Section 16.217(4)(v). Delta Sand and Gravel asserts that
the construction of the aquaclude is not a mining activity subject to DEQ setback
regulations, and has requested a variance from Lane County to construct the aquaclude
within this setback. County code provides the following minimum setbacks when a
variance is granted for non-mining activities inside the mining setback:
16.217(4)(v) (aa) The Director may grant an administrative variance to decrease
the setback upon showing that the eventual utilization of the site is compatible
with a smaller setback up to the following minimums:
(i-i) Fifty feet from the boundary of any nonresidential zone, or the right-of-
way of an existing street or road.
(ii-ii) One hundred feet from the boundary of a residential zone.
Lane County has approved this variance, pending approval of the comprehensive plan
amendments and zone change. Conditions of approval applied to mining operations
would not automatically apply to construction of the aquaclude if it is not considered a
mining activity; however, it is the County’s intention to enforce all descriptions of
construction activities and mitigation measures included in the application as part of the
project description. The City can argue that construction of the aquaclude is, in fact, a
mining operation and subject to all DEQ setbacks and regulations, but ultimately the
decision rests with Lane County. State definitions of “Mining” are attached at the end of
the staff analysis.
Most of the land located inside the UGB adjacent to the expansion site is zoned for
residential use, except that the residential area along Echo Lane and the 8 acre undivided
Kempf property are zoned “Agriculture” and the 4J property to the north is zoned “Public
Land.” Lane Code would apply the 50-foot setback to these properties not zoned
Residential. Where a right-of-way in a residential zone abuts the expansion area, such as
portions of Hunsaker Lane, the 50-foot setback would apply. The existing residences that
would be most impacted by the reduced setback area are some along Hunsaker Lane on
the southerly side of the expansion site (located within 150 feet of the aquaclude
construction), and homes located at the southern end of Admiral Street, located northerly
of the expansion site (with houses within 200 feet of the aquaclude). Construction of the
aquaclude would occur at an early stage of use of the expansion site and, while
construction of each segment would be of relatively limited duration, construction of the
entire aquaclude may take 6-8 years. In the end, whether installation of the aquaclude is
treated as a construction activity or mining, the net effect to the nearest residences would
be the same as if mining were allowed 50-100 feet nearer than the standard setback,
except that the aquaclude will be more quickly backfilled to grade level.
Specific possible impacts of the reduced setback are discussed below.
Noise. The variance would allow excavation/construction activities 50-100 feet
closer to some existing residences. Staff does not find in the record a succinct summary
of the difference this would cause in terms of noise (i.e., comparing the noise at the 50
and 150 foot setbacks from residential areas, for instance). DSA Engineers prepared a
report for the applicant to study the noise impacts of the aquaclude construction (Exhibit
221 in the record). It states that construction of the aquaclude would be exempt from
DEQ noise regulation (if it is not considered a mining activity), but DSA used DEQ noise
standards as a benchmark for their recommendations. DSA suggests that the distance
between the excavation and residences can be less and still meet noise standards if
excavation activities by certain equipment were limited to less than 30 minutes each hour
(e.g., the minimum distance should be 250 feet from residences on Admiral Street
without additional mitigation). Since these setbacks would not be met, additional
mitigation in the form of a berm 6 – 9 feet tall is also recommended by DSA, the shorter
berm being satisfactory if the excavation is limited to less than 30 minutes each hour, use
of the noisier heavy equipment is limited, and excavation is prohibited before 7:00AM.
The DSA memorandum also states the applicant’s intent to construct a 10 foot tall berm
prior to excavating the trench, which will likely be constructed in 300 – 500 foot
segments as needed. After construction the berm would be removed.
The record indicates that the impact of “impulse” noise, such as the banging of dump
trucks to shake loose all the material being dumped, was not quantified. The DSA report
explains this away for the excavation because the dumping of material would normally
occur at the processing plant or other far-away sites. However, construction of the
aquaclude involves filling the trench with less permeable materials. It is probable that
dump trucks will be used, and that there will be impulse noises associated with this
activity. The adequacy of the berm to minimize impulse noise is not addressed by the
applicant.
The applicant proposes to limit construction activities to the hours of 7 o’clock AM to 10
o’clock PM. For comparison, building construction in the city is usually limited in the
city to the hours of 7 o’clock AM to 7 o’clock PM to limit disturbances (EC 6.750 (d)).
In summary, there would be digging activities 50-100 feet nearer some existing
residences if the variance were granted for the aquaclude. A berm 10 feet tall might be
required by the county. Construction of the berm would itself cause temporary noise
impacts to these properties.
More discussion about noise impacts not associated with the aquaclude is contained in a
different section of this report.
Staff Recommendation: Noise: Amend findings related to noise as recommended below,
not in a separate set of findings exclusively related to the aquaclude variance.
Dust. The excavation activity and construction of noise-mitigating berms would
be located between 50 to100 feet closer to some residences after the variance. The
conditions of approval applicable to mining activity, such as watering haul roads to keep
dust down, would not automatically apply to the aquaclude area of construction. The
record does not indicate whether LRAPA standards would differ in the area of the
aquaclude.
There is evidence in the record that dust particles settle out from the air over greater
distances. The greater the separation, the less dust remains in the air. Therefore it is
logical that the variance allowing the installation of the aquaclude and earthen berms
nearer to existing residences would have a detrimental effect, though one that is not
quantified in the record.
Neither the record nor conditions are explicit about whether the berms installed for noise
mitigation would be located closer to the residences than the setback specified for the
aquaclude. In other words, it is not specified if the 10-foot high earthen berms would be
closer than 50 feet to the property lines. If they were, the dust impacts could be even
worse.
Inasmuch as the draft findings for dust impacts already find that the conflicts are not
adequately minimized, and an economic, social, environmental and energy (ESEE)
analysis finds no overriding reasons to approve the mining, no significant changes to the
findings are needed.
Staff Recommendation: Dust: Amend finding to simply recognize that the variance
granted by the county would exacerbate the dust impacts even further.
Wetlands. Portions of the proposed expansion site’s western boundary follows an
old meander scar of the Willamette River, commonly called East Santa Clara waterway.
The aquaclude variance would allow construction activities to within 50 – 100 feet of this
intermittent waterway, depending on the neighboring zone, as described above. This
waterway was added to the City’s and County’s Goal 5 inventories as a “Category D”
stream, which requires a setback of 20 feet. Installation of the aquaclude and berms
would not encroach into the existing Goal 5 setback. There is no impact that would
violate existing local standards.
Staff Recommendation: Wetlands: No changes recommended except to clarify the status
of the waterway as a Goal 5 resource and the locally adopted setbacks to this waterway.
Flooding and Groundwater. The aquaclude is proposed as a mitigation against
groundwater depletion and is designed to respond to concerns about too much rise in the
groundwater in the neighboring urban areas. Staff finds nothing in the record that would
quantify the different impacts between the proposed location for the aquaclude and
another location if the variance were not granted. There is testimony in the record that
describes how the subsurface water system is very large compared to the relatively small
expansion site. Moving the aquaclude 50 – 100 feet to the east would probably not have
a significant effect on flooding or groundwater.
Staff Recommendation: Flooding and Groundwater: No changes recommended.
Visual Impact.Visual impacts are not subject to the Goal 5 criteria for mining,
but it is included in this paper for the sake of completeness. Construction of the
aquaclude includes a 10 foot tall berm for noise attenuation. It is not clear how long the
berm will remain, but for its duration it might be visible from nearby residences. The
berm would help block views of construction equipment.
Staff Recommendation: Visual Impact: No changes recommended.
4. Noise Impacts on Existing Residences
The primary source of noise impacts to nearby residences from the mining operation is
where heavy equipment digs and breaks rock, loads the rock onto trucks, and transports
the rock offsite or to the existing processing facility, where the material is crushed and
sorted. The processing facility will not move, so it will cause no increase in noise above
current conditions. Therefore, potential increases in noise will be from the extraction
and transportation processes, and in the construction of the aquaclude, which is a
specialized form of excavation possibly exempt from DEQ regulations as discussed
above. There are two phases in the extraction process: first, the top layers of soil and the
“first lift” of rocky material (8-10 feet deep) are removed, and second, a series of “second
lift” extractions each about 16-18 feet deep. The difference is important because during
the second lifts, the equipment will be operating below grade level. The quarry wall
itself will act as a noise buffer between the equipment and the nearest surrounding
properties and conflicting uses.
Regarding transportation of the quarried materials, there are several gates that provide
access to/from the site. The direction of travel depends on the materials being
transported (e.g., are they first processed?) and the direction of the receiving site. The
primary access point is on Division Avenue, near the processing facility. No new gates
are proposed, nor are there changes proposed that would inherently affect the use of the
existing gates. Therefore staff finds that there is no change proposed in the amount of
noise due to the transportation of extracted materials.
Daly-Standlee and Associates (DSA), engineers acting on behalf of the applicant,
prepared a noise study (Exhibit 1F) and responded to comments during the public
hearing. DSA used the more stringent Oregon Department of Environmental Quality
(DEQ) Noise Regulations for Industry and Commerce that apply to a “new noise source”
on a “previously unused site,” not the more lenient noise limits for “existing noise
sources” that could apply to mining expansion sites. The DSA noise study provides
recommended mitigations for four zones within the expansion site. The zones are based
on proximity of the excavation activities to sensitive receptors off site, such as
residences.
DSA concluded (after several revisions responding to public testimony) that, with
appropriate noise mitigation measures, noise generated by future mining operations in the
proposed expansion area will comply with the most demanding interpretation of the DEQ
at all residential properties surrounding the proposed expansion area.
There is evidence
from two peer reviews that the mining operations, with mitigations, could meet DEQ standards.
Both Planning Commissions agreed that the noise conflict could be minimized to a level
that meets the DEQ standard. The Eugene Planning Commission vote was 3-2 and the
Lane County Planning Commission vote was 3-2, with 1 abstention.
Most opposing testimony came from Arthur M. Noxon, PE, acoustic engineer. In staff’s
view, the more substantive comments pertain to the following issues:
1. Ambient noise levels in residential areas were not measured from the more
sheltered, quieter private outdoor spaces that may be most impacted by the expanded
quarry.
2. Impulse noises, such as the banging of dump trucks as they unload, were not
measured in the DSA study. The aquaclude will involve filling of the trench proximate to
residences, presumably with associated impulse noises, inside the DEQ setback for
mining operations.
3. Because the expansion site has sensitive receptors (e.g., homes) on three sides,
it is likely that excavation activities will not always be shielded by the quarry wall. For
instance, the residences on the south side of the expansion site will have a direct line of
sight to excavation occurring along the north property line. Berms will be installed only
temporarily for the aquaclude construction. The DSA analysis does not specifically
address whether the distances involved will mitigate the noise impacts.
4. Most of the proposed mitigation measures depend on administrative oversight,
such as self-monitoring distances between certain types of equipment and property lines,
hours of operation, frequency of loads, etc. These are more difficult to monitor and
enforce than structural or mechanical solutions, such as construction of berms.
The County found that the initial construction of the aquaclude, which involves the
removal, stockpiling and return of topsoil and overburden to the trench during the surface
digging, constitutes a construction project that is exempt from DEQ noise level
requirements.
Staff Recommendation:
In response to Council direction given at Council’s April 21,
2008 meeting, staff has performed further analysis of the application’s consistency with
these Goal 5 criteria. Based on that analysis, revised findings are offered as a defensible
substitute for the findings under OAR 660-023-0180(8)(c) and -0180(5)(b)(B). These
revised findings conclude that there are several deficiencies in the DSA study that can
lead to the conclusion that the conflicts of noise may not have been successfully
minimized. The conflicts are worsened if the City considers construction of the
aquaclude to be a mining activity and not exempt from DEQ standards.
If the conflicts are not minimized, the city must conduct an economic, social,
environmental and energy (ESEE) analysis to determine if there are overriding reasons to
approve the expansion of the mining site. Based on Council direction, staff has prepared
draft findings showing that the conflicts due to noise have not been minimized and an
ESEE analysis that finds no overriding reasons to approve the mining.
5. Impact Approval Would Have on the Supply of Residential Land
The record indicates that there are currently three residences on the subject property.
Presumably all three would eventually be removed if the application for a quarry
expansion were approved for this site.
The subject property is located outside the Urban Growth Boundary (UGB). It is
currently designated by the Metro Plan for “Agricultural” land use and is zoned by Lane
County as “E30/Exclusive Farm Use (LC 16.212)”. There would currently be little
opportunity for providing any additional residences on this.
Because this property is located outside the UGB, it was not included in Eugene’s last
adopted residential lands inventory.
Therefore, there is no significant impact to the supply of residential land if the application
were approved.
Staff Recommendation:
No change to the draft findings.
Definitions
OAR 660-023-0180 Mineral and Aggregate Resources
(1) For purposes of this rule, the following definitions apply:
(h) "Mining" is the extraction and processing of mineral or aggregate resources, as
defined in ORS 215.298(3) for farmland, and in ORS 517.750 for land other than
farmland.
ORS 215.298 Mining in exclusive farm use zone; land use permit.
(3) For purposes of ORS 215.213 (2) and 215.283 (2) and this section, “mining”
includes all or any part of the process of mining by the removal of overburden and the
extraction of natural mineral deposits thereby exposed by any method including open-pit
mining operations, auger mining operations, processing, surface impacts of underground
mining, production of surface mining refuse and the construction of adjacent or off-site
borrow pits except those constructed for use as access roads. “Mining” does not include
excavations of sand, gravel, clay, rock or other similar materials conducted by a
landowner or tenant on the landowner or tenant’s property for the primary purpose of
reconstruction or maintenance of access roads and excavation or grading operations
conducted in the process of farming or cemetery operations, on-site road construction or
other on-site construction or nonsurface impacts of underground mines. [1989 c.861 §7]
ORS 517.750 (Non Agricultural lands)
(15)(a) “Surface mining” includes all or any part of the process of mining minerals by the
removal of overburden and the extraction of natural mineral deposits thereby exposed by
any method by which more than 5,000 cubic yards of minerals are extracted or by which
at least one acre of land is affected within a period of 12 consecutive calendar months,
including open-pit mining operations, auger mining operations, processing, surface
impacts of underground mining, production of surface mining refuse and the construction
of adjacent or off-site borrow pits (except those constructed for use as access roads).
(b) “Surface mining” does not include:
(A) Excavations of sand, gravel, clay, rock or other similar materials conducted by
the landowner or tenant for the primary purpose of construction, reconstruction or
maintenance of access roads on the same parcel or on an adjacent parcel that is under the
same ownership as the parcel that is being excavated;
(B) Excavation or grading operations reasonably necessary for farming;
(C) Nonsurface effects of underground mining; or
(D) Removal of rock, gravel, sand, silt or other similar substances removed from the
beds or banks of any waters of this state pursuant to a permit issued under ORS 196.800
to 196.900.
ATTACHMENT B
ORDINANCE 1
ORDINANCE NO. ___________
AN ORDINANCE DENYING PROPOSAL TO AMEND THE EUGENE-
SPRINGFIELD METROPOLITAN AREA GENERAL PLAN (METRO
PLAN) TO REVISE THE GOAL 5 SIGNIFICANT MINERAL AND
AGGREGATE RESOURCES INVENTORY AND REDESIGNATE FROM
“AGRICULTURE” TO “SAND & GRAVEL; AND PROVIDING AN
EFFECTIVE DATE.
The City Council of the City of Eugene finds that:
A.
In August 2005, application No. PA 05-6151 was made to Lane County for a
Type II Metro Plan Amendment to add property located outside the Metro Plan UGB and within
the Metro Plan Boundary to the Metro Plan Goal 5 Inventory of Significant Mineral &
Aggregate Sites, to change the Metro Plan designation for that property from “Agriculture” to
“Sand & Gravel” and to concurrently rezone that property in the County’s Rural Comprehensive
Plan.
B.
Sections 9.7700 through 9.7750 of the Eugene Code, 1971 (“EC”) set forth
procedures for amendment of the Metro Plan. Pursuant to the procedures described at EC
9.7730(2)(b), the Board of Commissioners of Lane County referred the above-described
application to the City Council of the City of Eugene for City action on the proposed Metro Plan
amendments.
C.
The Eugene Planning Commission reviewed the proposal with the Lane County
Planning Commission in public hearings on November 15, 2005 and January 25, 2006,
deliberated jointly on July 25, and August 30, 2006 and the matter was forwarded to the City
Council and Board with formal Planning Commission recommendations.
D.
The City Council has conducted a public hearing and is now ready to take action.
NOW, THEREFORE,
THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS:
Section 1.
The Metro Plan amendments proposed by application No. PA 05-6151 (Lane
County) is hereby denied.
Section 2.
This Ordinance shall become effective 30 days from its adoption by the City
Council and approval of Mayor, as provided in the Eugene Charter of 2002, or upon adoption of
an identical action by the Board of Commissioners of Lane County, whichever date is later.
Passed by the City Council this Approved by the Mayor this
____ day of ____________, 2008 ____ day of _______________, 2008
___________________________ _______________________________
City Recorder Mayor
Exhibit A to Eugene Ordinance No. __________
FINDINGS OF FACT AND CONCLUSIONS OF LAW
GENERAL FINDINGS AND CONCLUSIONS:
Delta Sand and Gravel Company is requesting approval of Eugene-Springfield Metropolitan
Comprehensive Plan (Metro Plan) amendments to add 72.31 acres of its property to the Goal 5
Significant Aggregate Site Inventory of the Metro Plan and to re-designate that land from
Agriculture to Sand and Gravel. In addition to these Metro Plan amendments, Lane County is
also considering the applicant’s related request to rezone the subject property from Exclusive
Farm Use to Sand, Gravel and Rock Products. The subject property contains 72.31 acres and is
located adjacent to the existing Delta mining and processing facility. The property is adjacent to,
but outside of, the Eugene-Springfield Urban Growth Boundary and is located within the Metro
Plan boundary. The proposed plan amendments and rezone will allow Delta Sand and Gravel
Company to expand its aggregate mining site onto its adjacent property (the proposed expansion
area that is the subject of this request).
METRO PLAN AMENDMENT
OAR 660-023-0180 is the Oregon Statewide Planning Goal 5 Rule regarding aggregate
resources. OAR 660-023-0180(9) provides that if local governments have not amended their
comprehensive plans and land use regulations to include procedures and requirements consistent
with the Goal 5 Rule for the consideration of post-acknowledgement plan amendments (PAPAs)
regarding aggregate resources, the procedures and requirements of the Goal 5 Rule shall be
directly applicable to a local government consideration of a PAPA. Therefore, Metro Plan, Lane
Code and Eugene Code land use regulations related to PAPAs regarding aggregate resources are
not applicable to this application. The Land Use Board of Appeals decision in Morse Bros. v.
Columbia County, 37 Or LUBA 85 (1999) supports the conclusion that OAR 660-023-0180(9)
preempts the application of local comprehensive plan amendment to such PAPAs until the local
comprehensive plan and land use regulations have been amended to comply with the Goal 5
Rule.
The Metro Plan has not been amended to adopt procedures and requirements consistent with the
Goal 5 Rule for the consideration of such PAPAs. The Lane Code and the Eugene Code do not
contain specific criteria regarding the consideration of a PAPA proposing to add a site to the
Metro Plan’s acknowledged list of significant aggregate sites and have not been amended to
conform to the requirements of the Goal 5 Rule through periodic review. Therefore, only the
provisions of the Goal 5 Rule shall be directly applicable to Eugene and Lane County’s
consideration of this application.
METRO PLAN AMENDMENT CRITERIA AND FINDINGS
The subject property is within the Metro Plan boundary and outside of the Eugene-Springfield
Urban Growth Boundary. The application requests an amendment to the Metro Plan diagram
which is a Type II Metro Plan amendment. The application constitutes a citizen-initiated Type II
Metro Plan amendment.
Eugene Code 9.7730(3) - Approval Criteria
(3) Criteria for Approval of Plan Amendment. The following
criteria shall be applied by the city council in approving or
denying a Metro Plan amendment application:
(a) The amendment must be consistent with the relevant
Statewide Planning Goals adopted by the Land Conservation and
Development Commission; and
(b) Adoption of the amendment must not make the Metro Plan
internally inconsistent.
Statewide Planning Goal 1
To ensure the opportunity for citizen involvement in all
phases of the planning process.
Chapter 9 of the Eugene Code provides for a notification and participation process for all quasi-
judicial land use matters. Notice was provided in conformance to these requirements. By
providing the notices required by state law and the Eugene Code and public evidentiary hearings
before its planning commission and City Council, the City of Eugene satisfies the requirements
of Goal 1.
Some participants raised concerns about the procedures used to consider the application. The
applicant’s request is composed of numerous applications. Those applications, taken alone,
would be subject to different review procedures under the City and County Codes. Under one
applicable process, the City Council and Board of Commissioners would not have accepted new
evidence for their review (instead, they would base their decision on the evidence gathered in the
Planning Commissions’ process). However, another applicable process required them to accept
new evidence. To allow for a consolidated review while ensuring that no participant’s
substantial right is prejudiced, the City and County opted to accept new evidence. The criteria
applicable to the applications are very similar, making it nearly impossible to judiciously oversee
a process that allowed new evidence only with respect to one of the applications, but not the
others. By providing for all of the procedural safeguards for a quasi-judicial evidentiary hearing,
the City and County ensured that Goal 1 was satisfied.
Statewide Planning Goal 2
To establish a land use planning process and policy framework
as a basis for all decisions and actions related to the use of land
and to assure an adequate factual base for such decisions and
actions.
The Eugene-Springfield Metropolitan Area General Plan (Metro Plan) is the policy tool that
provides a basis for decision-making in this area. The Metro Plan was acknowledged by the
State in 1982 to be in compliance with statewide planning goals. These findings and record
show that there is an adequate factual base for City’s decision concerning the proposed
amendments. Goal 2 requires that plans be coordinated with the plans of affected governmental
units and that opportunities be provided for review and comment by affected governmental units.
To comply with the Goal 2 coordination requirement, the City coordinated the review of these
amendments with all affected governmental units. Specifically, notice was mailed to Lane
County Transportation Planning, Lane County Flood Management, Lane County Water
Quantity/Quality, Santa Clara (neighborhood) Community Organization, Oregon State Parks &
Recreation Department, 1000 Friends of Oregon, Oregon State Fish and Wildlife Department,
Oregon Department of Transportation/Planning, Division of State Lands/Wetlands, Oregon
Department of land Conservation and Development, Lane regional Air Pollution Authority,
Eugene (School) District 4J, Lane County Wetlands, Lane County Surveyors, Lane County Farm
Bureau, and the City of Eugene Planning Division. Therefore, the amendments are consistent
with Statewide Planning Goal 2. See, however, the findings under Statewide Planning Goal 3.
Statewide Planning Goal 3
To preserve and maintain agricultural lands.
Goal 3 provides for the protection of agricultural lands as those are defined under the goal.
In western Oregon, agricultural land consists of primarily Class I through IV soils identified
by the U.S. Department of Agriculture Natural Resources Conservation Service and includes
other lands found suitable for farm use considering soil fertility, climatic conditions,
availability of water and methodologies available for farm practices.
Soils on the subject property have been identified as containing 75 percent Class II soils.
The subject property contains no Class I soils (Exhibit 1).
The applicant claims that the subject property also contains a significant mineral resource site
of the quantity and quality that, pursuant to Goal 5 and the Oregon Administrative Rules
implementing Goal 5, establish the subject property as for aggregate purposes. The
administrative rules recognize that significant aggregate resources may be mined in areas of
agricultural soils. The potential of such conflicts has been addressed in the sections
pertaining to the Goal 5 rule. The City of Eugene finds that the applicant failed to prove that
the mineral resources were significant pursuant to Goal 5 and the Oregon Administrative
Rules implementing Goal 5, and denies the application to reclassify the site as a Goal 5
resource. Pursuant to the denial of the application, existing agricultural lands are preserved
and maintained consistent with Goal 3.
If the applicant had provided a sufficient basis to determine that the mineral resource was
significant under Goal 5, the City would have more closely examined the testimony suggesting
that the proposal interferes with Agricultural land. It is not clear whether the City would need to
approve an exception to Goal 3 in order to change the Metro Plan designation from Agriculture
to Sand and Gravel. While sand and gravel operations are a permitted non-farm use on
agricultural lands under ORS 215.283, Goal 3 requires that non-farm uses be “minimized to
allow for maximum agricultural productivity.” The Metro Plan does so by treating agricultural
land and those lands which are designated for sand and gravel operations separately.
“Designated agricultural lands” under the Metro Plan “are protected to preserve agricultural
resource values.” Metro Plan, II-E-10. Whereas, the “Sand and Gravel” designation is applied to
lands to allow “[a]ggregate extraction and processing.” Id. While the Metro Plan does provide
for some reclamation of this area (consistent with state law), the conversion of an area from
“Agricultural” to “Sand and Gravel” completely eliminates its protected status under the Metro
Plan. Thus, the proposed removal of the applicant’s expansion area from the Metro Plan’s
Agricultural designation is arguably contrary to the Goal 3 mandate to “preserve and maintain
agricultural lands.”
In light of this, if the Goal 5 standards had been met, the City may have determined that the
applicant is required to take a Goal 2 Exception to Goal 3.
Statewide Planning Goal 4
To preserve forest lands for forest use.
We find that Goal 4 is not applicable to this application. There has previously been a legislative
determination by the metropolitan jurisdictions, as embodied in the acknowledged Metro Plan,
that the subject property is not forest land. This determination is validated by the fact that are no
forest resources existing on the subject property or on any surrounding land and there are no
areas within the subject property that fall within the definition of forest land. Also, the soils of
the subject property (Chehalis silty clay loam, Newberg loam, Newberg fine sandy loam,
Newberg urban land complex and Camas gravelly sandy loam) have no designated Douglas Fir
site index according to Lane County’s 1997 Soil Ratings for Forestry and Agriculture.
Statewide Planning Goal 5
To conserve open space and protect natural and scenic resources.
There has previously been a legislative determination by the Metro Plan jurisdictions that no
Goal 5 resources exist on subject site except wetlands, which are addressed in these findings.
The subject property has not been included in any inventory of needed open space or scenic areas
defined by Goal 5, nor has it been identified in the Metro Plan as having any historic, cultural or
natural resources which need to be preserved and/or protected.
With respect to wetlands, EGR & Associates, Inc., in its Evaluation of Aggregate Resources
attached to the application, determined that there is a wetland located within the meander scar
(aka East Santa Clara Waterway) along the northwest boundary of the subject property. This
wetland does not extend beyond the eastern bank of the meander scar and lies within the required
150-foot mining setback from the property boundary. Avoidance of wetlands in areas not
covered by existing DOGAMI Mining Permits and will be accomplished by limiting mining
operations to areas outside the applicable setbacks from the expansion property boundary,
according to draft County-imposed conditions of approval (see staff report for November 1, 2006
public hearing, Attachment 1, Exhibit C: Lane County draft Ordinance No. PA 1238, Conditions
Necessary to Minimize Conflicts). All wetland area within the 150 foot setback shall be
exempted from the administrative variance and the construction of the aquaclude would occur
outside of the wetland area. Two excavated ponds are located in the southern portion of the site,
which were previously used in aggregate extraction and are currently covered by DOGAMI
permits, and thus exempt from wetland regulation. (Exhibit 1, Exhibit E)
The Goal 5 Administrative Rule for mineral and aggregate resources specifically addresses other
Goal 5 resources and limits considerations of conflict to “Goal 5 Resource Sites” that have been
identified in the Metro Plan. The applicant claims that the subject property contains a significant
mineral resource site of the quantity and quality that establish the subject property as for
aggregate purposes pursuant to Goal 5 and the Oregon Administrative Rules implementing Goal
5. The administrative rules recognize that significant aggregate resources may be mined in areas
that contain other Goal 5 resources. The potential of such conflicts has been reviewed according
to the Goal 5 rule.
The City of Eugene finds that the applicant failed to show that the site’s aggregate resources
were significant pursuant to Goal 5 and the Oregon Administrative Rules implementing Goal
5; therefore, the application to list the site as a Goal 5 resource is denied. This action is
consistent with Goal 5 and the rules that implement it as shown below.
Step 1 Determine if the PAPA information is adequate
OAR 660-023-0180(8) -- In order to determine whether information in a PAPA submittal
concerning an aggregate site is adequate, local government shall follow the requirements of
this section rather than OAR 660-023-0030(3). An application for approval of an aggregate
site following sections (4) and (6) of this rule shall be adequate if it provides sufficient
information to determine whether the requirements in those sections are satisfied. An
application for a PAPA concerning a significant aggregate site following sections (3) and (5)
of this rule shall be adequate if it includes:
The application at issue is for a PAPA concerning a significant aggregate site following OAR
660-023-0180(3) and (5). The applicant does not seek approval following sections (4) or (6).
Therefore, sections (a) through (e), below, apply.
(a) Information regarding quantity, quality, and location sufficient to determine
whether the standards and conditions in section (3) of this rule are satisfied;
The application includes information regarding quantity, quality, and location. The applicant has
provided an analysis of the aggregate resource, conducted by EGR & Associates, Inc. (EGR).
See File Record No.1, Original Delta application, including EGR document dated June 2005:
Evaluation of Aggregate Resources: Delta Sand and Gravel Expansion Area, which is Exhibit E
in the 12 August 2005 application by Delta for a zoning change entitled “Application for
amendment of the Eugene-Springfield metropolitan comprehensive plan map and significant
aggregate resource site inventory and zone change from EFU to sand gravel and rock products”.
Supplemental information was presented by the applicant, EGR, and other persons during the
public hearings before the Planning Commission and City Council. The Eugene Planning
Commission found unanimously that there was adequate information submitted in the PAPA
application.
The City Council finds that the information provided by the applicant provides an adequate basis
for determining whether or not the standards and conditions in OAR 660-023-0180(3) are
satisfied.
(b) A conceptual site reclamation plan;
The applicant provided a conceptual reclamation plan to reflect its proposal to amend its existing
reclamation plan, approved by DOGAMI in 1987 and 1995. See File Record No.1, Original
Delta application, including Operating and Reclamation Plan, which is Exhibit J in the 12 August
2005 application by Delta for a zoning change entitled “Application for amendment of the
Eugene-Springfield metropolitan comprehensive plan map and significant aggregate resource
site inventory and zone change from EFU to sand gravel and rock products”. See also File
Record No. 17 and Exhibit 49.
The City Council finds that the reclamation plan provided by the applicant satisfies this
requirement.
(c) A traffic impact assessment within one mile of the entrance to the mining area
pursuant to section (5)(b)(B) of this rule;
If the subject site were found to be a significant aggregate site, OAR 660-023-
180(5)(b)(B) would require analysis of “[p]otential conflicts to local roads used for
access and egress to the mining site within one mile of the entrance to the mining site
unless a greater distance is necessary in order to include the intersection with the nearest
Deleted:
For significant aggregate sites
(addressed below), Section OAR 660-
arterial identified in the local transportation plan.” The record shows that the local roads
023-180(5)(b)(B) requires analysis of
used for direct access to or from the site are River Avenue, Division Avenue (two
“[p]otential conflicts to local roads used
for access and egress to the mining site
entrances), Beaver Street and Beaver-Hunsaker. Exhibits 28, 49. Numerous participants
within one mile of the entrance to the
raised concerns about the impacts of current and continued traffic to and from the site,
mining site unless a greater distance is
necessary in order to include the
using these local roads. See, e.g. Exhibit 3, 7, 14, 16, 20, 21, 22, 23, 27, 275.
intersection with the nearest arterial
identified in the local transportation
plan.” The applicant’s material indicates
The applicant’s materials do not include a traffic impact assessment relating to the
that the traffic volumes and location of
identified local roads. The applicant asserts that no traffic impact assessment is needed
ingress and egress will not change from
current operations, and identifies the local
because approval of the application would result in the Metro Plan diagram designation
roads to be used for access and egress.
of the subject property being changed from one resource designation (“Agriculture”) to
The applicant did not provide a traffic
study, as the applicant maintains that
another (“Sand and Gravel”). The applicant further asserts that “approval of the
there will be no additional impact over
application will not result in any additional traffic on any local roads and, consequently,
current operations. ¶
The City notes that Lane Code 15.697(1)
will not significantly affect any transportation facility.” Application, 8. Throughout the
requires that a traffic impact analysis may
local proceedings, the applicant has stated that there would be no increase in the number
be required for any plan amendment
proposal, unless waived by the County
of vehicle trips for product delivery or service as a result of the proposed expansion.
Engineer as specified in Lane Code
Application, 8, 14-15. However, the applicant does not provide sufficient data
15.697(2). Lane Code 15.697(2)
provides that the County Engineer may
documenting its current traffic impacts. This was pointed out by the City’s Senior
waive traffic impact analysis
Transportation Analyst. Exhibit 29. The materials offered by the applicant in response
requirements specified in LC 15.697(1)
when, in the case of a plan amendment,
(traffic totals from 1992, extrapolated for 2005) are insufficient. Exhibit 28. There is no
the scale and size of the proposal is
way for the City to determine the frequency of the trips, which roads are being used, the
insignificant, eliminating the need for
detailed traffic analysis of the
timing in comparison to peak hour traffic on the effected roads, etc. Without such
performance of roadway facilities for the
information, the City cannot make any determinations as to road capacity, for example, as
20-year planning horizon. Lane Code
15.697(2)(b) provides that, generally, a
required by OAR 660-023-180(5)(b)(B).
waiver to Traffic Impact Analysis will be
approved when the plan designation that
The applicant’s representatives testified before the Planning Commissions that the results will be entirely a resource
designation or there is adequate
economy and demand controlled what could be sold, that production had been increasing
information for the County Engineer to
by approximately one percent per year, and that traffic on Hunsaker Lane would be the determine that a transportation facility is
not significantly affected as defined in
result of the projects that Delta was involved in. Avon Lee Babbs and George Staples,
Lane County Transportation System Plan
Planning Commission minutes January 17, 2006, pages 6, 7. If levels of use increase in
Policy 20-d. The County Engineer
waived Lane County’s requirement for a
the new excavation area because demand increases, then traffic will increase. This
traffic impact analysis because the
potential increase in traffic was not analyzed by the applicant.
County made the determination that the
above provisions for a waiver were met.¶
The City of Eugene’s Senior
Without more detailed data establishing the site’s current traffic impacts or future
Transportation Analyst opined that a
traffic impact analysis would be helpful
demand for the excavated product, the assertion that the site will continue to have its
to assess the impacts of temporal
current level of impact has little meaning. It provides no way for the City to assess the
extension of operations that would be
permitted by expanding the mining site,
potential conflicts pursuant to OAR 660-023-180(5)(b)(B). The City must be able to
thereby also expanding the amount of
determine whether there are potential conflicts to the specific local roads used for access
aggregate materials to be excavated over
a longer period of time (See Exhibit 29).
and egress to the mining site. The applicant’s submittal fails to provide sufficient
However, the City does not find that this
information to determine whether such potential conflicts exist. Had the City been the
information is necessary to assess the
potential conflicts pursuant to OAR 660-
recipient of the application, the application would not have been deemed complete. To
023-180(5)(b)(B). ¶
the extent that OAR 660-023-180(8) is an approval criterion, the City finds that it is not
The City Council finds that, since
approval of the application would result
met. As discussed below, this inadequacy in the application causes the City find that the
in the Metro Plan diagram designation of
proposal fails to adequately address OAR 660-023-0180(5)(b)(B).
the subject property being changed from
one resource designation (“Agriculture”)
to another (“Sand and Gravel”) and since
the applicant asserts that approval of the
(d) Proposals to minimize any conflicts with existing uses preliminarily identified by
application will not result in any
additional traffic on any local roads and,
the applicant within a 1,500 foot impact area; and
consequently, will not significantly affect
any transportation facility, the
information provided, taken together, is
an adequate basis for the City to assess
traffic impacts. ¶
The applicant has provided proposals to minimize conflicts with existing uses within a 1500 foot
impact area. See File Record No.1, Original Delta application, Introduction, in the 12 August
2005 application by Delta for a zoning change entitled “Application for amendment of the
Eugene-Springfield metropolitan comprehensive plan map and significant aggregate resource
site inventory and zone change from EFU to sand gravel and rock products,” which contains the
following consultants reports: Report on Noise Study (Daly-Standlee & Associates, Inc.)
(hereinafter referred to as “Daly-Standlee”or DSA) (Exhibit F); Air Quality Evaluation
(Bridgewater Group, Inc., hereinafter referred to as “Bridgewater”) (Exhibit G); Flood Impact
Evaluation (EGR & Associates, Inc., hereinafter referred to as “EGR”)(Exhibit H); and Digital
Model-Groundwater (EGR) (Exhibit I). Proposals to minimize conflicts with existing uses
preliminarily identified by the applicant within a 1,500 foot impact area were incorporated into
draft conditions of approval by Lane County ((see staff report for November 1, 2006 public
hearing, Attachment 1, Exhibit C: Lane County draft Ordinance No. PA 1238, Conditions
Necessary to Minimize Conflicts).
The City Council finds that this requirement has been satisfied, even though, as discussed later in
these findings, the council disagrees with the applicant and finds that several of the conflicts are
not minimized..
(e) A site plan indicating the location, hours of operation, and other pertinent
information for all proposed mining and associated uses.
The application includes a site plan indicating the location, hours of operation, and other
pertinent information for all proposed mining and associated uses. See File Record No.1,
Original Delta application, Introduction, in the 12 August 2005 application by Delta for a zoning
change entitled “Application for amendment of the Eugene-Springfield metropolitan
comprehensive plan map and significant aggregate resource site inventory and zone change from
EFU to sand gravel and rock products.”
Deleted:
A
Summary: OAR 660-023-0180(8) provides that an application for approval of an aggregate site
shall be adequate if it provides sufficient information to determine whether the requirements in
its subsections (a) – (e) are satisfied. Subsection (c) requires a traffic impact assessment within
Deleted:
those
one mile of the entrance to the mining area pursuant to section (5)(b)(B) of the rule. The City
Deleted:
is
finds that the applicant failed to provide such a traffic impact assessment. As such, if the site
were a significant resource, the application would not be adequate, and, if OAR 660-023-0180(8)
operates as an approval criterion, the application would be denied on this basis. Since other
bases for denial follow, the City does not rely solely on this determination.
Deleted:
fail based on this criterion.
Deleted:
Based on the findings, above,
OAR 660-023-180(2)(b) -- Local governments shall apply the criteria in section (3) or (4) of
the City Council finds that the application
contains adequate materials to satisfy
this rule, whichever is applicable, rather than OAR 660-023-0030(4), in determining whether
OAR 660-023-0180(8).¶
an aggregate resource site is significant.
The applicant submitted information to address OAR 660-023-180(3). The criteria in OAR 660-
023-180(4) are not applicable.
Step 2 Determine if the resource site is significant
OAR 660-023-180(3) -- An aggregate resource site shall be considered significant if adequate
information regarding the quantity, quality, and location of the resource demonstrates that the
site meets any one of the criteria in subsections (a) through (c) of this section, except as
provided in subsection (d) of this section:
Above, the City finds that the applicant provided adequate information for evaluating the
significance of the resource.
Based on these findings, the Council determines that the applicant has not met its burden of
proof to establish that the aggregate resource meets the “significance” requirements of OAR 660-
023-0180(3) regarding quantity and quality of the aggregate resource.
The Council evaluated the aggregate resource in accordance with OAR 660-023-0180(3), the
pertinent parts of which follow:
(3) An aggregate resource site shall be considered significant if adequate
information regarding the quantity, quality, and location of the resource demonstrates
that the site meets any one of the criteria in subsections (a) through (c) of this section,
except as provided in subsection (d) of this section:
(a) A representative set of samples of aggregate material in the deposit on the
site meets applicable Oregon Department of Transportation (ODOT) specifications for
base rock for air degradation, abrasion, and soundness, and the estimated amount of
material is more than 2,000,000 tons in the Willamette Valley, or more than 500,000 tons
outside the Willamette Valley;
(b) ***
(c) ***
(d) Notwithstanding subsections (a) and (b) of this section, except for an
expansion area of an existing site if the operator of the existing site on March 1, 1996,
had an enforceable property interest in the expansion area on that date, an aggregate
site is not significant if the criteria in either paragraphs (A) or (B) of this subsection
apply:
(A) More than 35 percent of the proposed mining area consists of soil
classified as Class I on Natural Resource and Conservation Service
(NRCS) maps on June 11, 2004; or
(B) More than 35 percent of the proposed mining area consists of soil
classified as Class II, or of a combination of Class II and Class I or
Unique soil, on NRCS maps available on June 11, 2004, unless the
average thickness of the aggregate layer within the mining area exceeds:
3. 60 feet in Washington, Multnomah, Marion, Columbia, and Lane counties;
(a) A representative set of samples of aggregate material in the deposit on
the site meets applicable Oregon Department of Transportation (ODOT)
specifications for base rock for air degradation, abrasion, and soundness,
and the estimated amount of material is more than 2,000,000 tons in the
Willamette Valley, or more than 500,000 tons outside the Willamette Valley;
The applicant submitted evidence and argument to address compliance with OAR 660-023-0180
(3), subsections (a) and (d)(B). These findings evaluate the sufficiency of that evidence and
argument. The record contains expert geologic testimony on both sides of these issues. The
applicant’s analysis was provided by EGR and Associates (EGR). State rules for testing refer to
the American Society for Testing and Materials (ASTM) and American Association of State
Highway and Transportation Officials (AASHTO) manuals. The AASHTO-ASTM Standard
Practice for Sampling Aggregates language describes the sampling protocol for roadside or bank
run sand and gravel deposits under Appendix D75, section X2.3.2.
The applicant’s analysis was reviewed by Mark H. Reed, Ph.D., Mineral Resource Geologist and
Department Head of the Department of Geological Sciences, University of Oregon, who
provided testimony to the contrary. Dr. Reed received his Masters of Science degree (1974) and
doctorate degree (1977) from the University of California at Berkeley. In addition to 23 years as
an Assistant and Associate professor at the University, his postgraduate employment includes
three years (1977-1979) as a full time geologist for the Anaconda Copper Company, Butte
Montana. His experiences with the mining company included drilling, sampling, surveying,
assaying, and geophysical logging. Dr. Reed has a long list of professional affiliations, short
courses, publications, and abstracts, and has provided written testimony in over 15 cases. The
Eugene City Council finds Dr. Reed to be a credible witness.
The report of applicant’s geologic consultant EGR (Exhibit 1,Original Delta application,
including Exhibit E from EGR: Evaluation of Aggregate Resources: Delta Sand and Gravel
Expansion Area, Section 2.3), states that more than 35% of the proposed mining area consists of
Class II soils. The Council agrees with the specific part of EGR’s report that characterizes the
type of agricultural soils present on the proposed site. The Council hereby finds that more than
35% of the proposed mining area consists of Class II soils. Thus, the requirement of OAR 660-
023-0180(3)(d)(B)(i) applies to this application and requires that the average thickness of the
aggregate layer exceed 60 feet.
As is explained in more detail below, the Council finds that the applicant has failed to meet its
burden of establishing that there is an aggregate layer with an average thickness of 60 feet that is
comprised of aggregate meeting the applicable Oregon Department of Transportation (ODOT)
specifications for base rock.
The Council also finds that EGR’s Exhibit 1,Original Delta application, including Exhibit E
from EGR: Evaluation of Aggregate Resources: Delta Sand and Gravel Expansion Area (e.g. p.
5- 8 and 11-13, Figures 7, 8, and 9), Appendix E well logs and table, and related materials,
establish that there are two contiguous, but distinct, layers of sand and gravel, in the expansion
area. These layers consist of an upper layer (“younger alluvium”) and a lower layer (“older
alluvium”). Based on that information, however, we also find that neither of these individual
layers is 60 feet thick.
For the reasons stated herein, the Council finds that the applicant has failed to provide a
“representative set of samples of aggregate material in the deposit” sufficient to demonstrate the
quality of the aggregate for either layer. Instead, the applicant’s information as to aggregate
quality is based on the use of mixed samples that combine materials from the two distinct
geologic layers before testing the quality of the aggregate. This mixing of aggregate from distinct
layers before testing makes it impossible for the Council to determine that there is a layer of
aggregate of the required quality, and of sufficient thickness, sufficient to satisfy the rule.
The conclusion that the aggregate samples described by EGR (Exhibit 1,Original Delta
application, including Exhibit E from EGR: Evaluation of Aggregate Resources: Delta Sand and
Gravel Expansion Area; and
Exhibit 55 – EGR & Associates Inc. rebuttal to M. Reed & M. Kupilas
including original samples and re-sampling of boreholes),
regarding significance of the resource,
and relied upon by the applicant, do not constitute the “representative set of samples of aggregate
material on the site”, as required by subsection (3)(a) of the rule, is based, in part, on the
definitions and principles of representative sampling of sand and gravel and other aggregate
deposits as laid out in the sampling standards of the ASTM (American Society for Testing and
Materials) Designation D75-97 (especially sections 3.1, X2.2.2, and X2.3.2), AASHTO
(American Association of State Highway and Transportation Officials) Standard No.T2 (sections
as for ASTM), and ACE (Army Corps of Engineers) Handbook for Concrete and Cement
Chapter CDR-C 100-75 (especially sections 3.3, 4.1, 4.3, and 5.1), sampling standards as cited in
the written and oral testimony of University of Oregon professor of resource geology Mark Reed
(
Exhibit 33 – Testimony of Concerned Santa Clara Residents on Delta Mining Expansion Proposal;
Exhibit 55 – EGR & Associates Inc. rebuttal to M. Reed & M. Kupilas regarding significance of the
resource,; Exhibit 62 – Response to EGR’s assertion of significance of the resource from M Reed; Exhibit
65 – Rebuttal to applicant from Doug DuPriest, attorney; Exhibit 66 – Applicant’s final rebuttal to
Planning Commissions; Exhibits 262 and 272 – testimony from Mark Reed; and Exhibit 274 –from Doug
This conclusion is further based on the arguments in these exhibits
DuPriest w/attachments).
concerning the application of the ASTM, AASHTO and ACE standards, including Delta’s
departure from these standards by testing: (1) samples composed by mixing material from the
two separate layers of sand and gravel (the upper and the lower layers), and (2) samples that do
not include the full vertical extent of material in each of the separate layers.
The Council has considered oral and written arguments on sampling made by Delta geologic
consultant EGR (including but not limited to
Exhibit 55 – EGR & Associates Inc. rebuttal to M. Reed
& M. Kupilas regarding significance of the resource; and Exhibit 66 – Applicant’s final rebuttal to
). This consideration also includes EGR’s references to subsections of the
Planning Commissions
ASTM, AASHTO and ACE standards that pertain to bulk sampling of material that is already
mined and processed, as opposed to sampling of unprocessed aggregate in the ground. The
Council finds that EGR’s sampling methodology, that mixed two distinct layers of sand and
gravel, and that is based on principles for sampling of processed gravel (instead of unprocessed
aggregate), does not yield “a representative set of samples of aggregate material in the deposit on
the site” as specified by OAR 660-023-0180(3)(a). In reaching this conclusion, the Council
relies, in part, on the analysis contained in the Reed testimony and letters (including but not
limited to
Exhibit 33 – Testimony of Concerned Santa Clara Residents on Delta Mining Expansion
Proposal; Exhibit 62 – Response to EGR’s assertion of significance of the resource from M Reed; Exhibit
65 – Rebuttal to applicant from Doug DuPriest, attorney; Exhibits 262 and 272 – testimony from Mark
) in support of this conclusion.
Reed; and Exhibit 274 –from Doug DuPriest w/attachments
Since the Council finds that the set of samples obtained and tested by the applicant was not
representative of the aggregate material in the deposit, and the applicant has failed to provide
adequate information to otherwise characterize that aggregate material, it is immaterial, for
purposes of this decision, whether the samples collected comply with ODOT’s base rock
specifications.
Some persons speaking in support of this application suggested that, because the applicant has
operated a gravel operation on nearby land for many years, the proposed site somehow meets the
quality and quantity standards in the rule. The Council finds that this position is mistaken, for
several reasons. The applicable rule expressly requires the applicant to demonstrate, by use of
proper sampling and analysis, that the proposed new or expanded site meets specific quality,
quantity and location requirements. Proponent’s suggestion incorrectly assumes what the rule
requires be proved. Past operation of an aggregate business on nearby land is not equivalent to,
or a substitute for, the required testing and demonstration. OAR 660-023-0180(3) requires testing
of the proposed new or expanded site; the quality, quantity and location of aggregate on a nearby
property is not at issue. This contention regarding prior, nearby aggregate use also appears to
mistakenly assume or imply that the nature and extent of aggregate material from the old pit
meets current standards. In addition to being irrelevant, such evidence is absent from the record.
The purpose of these OAR aggregate standards is to ensure that an adequate depth and volume of
high quality aggregate is present in a potential new or expanded site before it is converted from
high quality agricultural land to aggregate use. Here, the applicant’s sampling methodology was
based, in part, on methodology appropriate for testing processed, instead of unprocessed,
aggregate. The applicant failed to provide samples of the full vertical extent of the aggregate
layers. The applicant has failed to provide a representative set of samples of each layer. By
mixing of material from distinct layers prior to testing, it is impossible to know the composition
of the individual layers of aggregate. Without knowing the composition of the individual layers,
and without a representative set of samples, it is not possible to determine whether the aggregate
deposit meets the standards of OAR 660-023-0180(3). For these reasons, the Council concludes
that the applicant has failed to demonstrate compliance with the requirements of OAR 660-023-
0180(3).
The estimated quantity of the resource must exceed 2 million tons to satisfy this aspect of the
criterion, since the site is located in the Willamette Valley. The applicant’s report concludes that
there is over 6 million tons of material, and possibly more than 9 million tons of material, present
Deleted:
cubic
beneath the expansion site, an amount well in excess of the 2 million ton requirement.
Deleted:
cubic
DOGAMI, while acknowledging that resource evaluation is not typically part of the function of
the Mined Lands Regulation and Reclamation Division, estimates the resource to be over 15
million tons on the 53 acre site. DOGAMI based their estimate on EGR’s assumed aggregate
resource depth of 82 feet, not the 51.5 foot depth observed by DOGAMI on the site. DOGAMI
estimates did not subtract silt and clay occurrences, which, DOGAMI writes, may not represent
separate layers and may be treated as internal waste in the production phase. By not subtracting
the silt and clay occurrences, the Council concludes that the applicant has failed to demonstrate
compliance with the requirements of OAR 660-023-0180(3)(a). (
Exhibit 144 – DOGAMI geologist
review of onsite aggregate deposit)
(b) The material meets local government standards establishing a lower threshold for
significance than subsection (a) of this section; or
Neither the City nor the County has established a lower threshold for significance. Therefore,
this section does not apply.
(c) The aggregate site was on an inventory of significant aggregate sites in an
acknowledged plan on September 1, 1996.
The expansion area was not on an inventory of significant aggregate sites on September 1, 1996.
Therefore, this section does not apply.
(d) Notwithstanding subsections (a) and (b) of this section, except for an expansion
area of an existing site if the operator of the existing site on March 1, 1996, had an
enforceable property interest in the expansion area on that date, an aggregate site is
not significant if the criteria in either paragraphs (A) or (B) of this subsection apply:
Because the City Council has found that the application does not satisfy sections (a) or (b),
findings under section (d) are superfluous. Nonetheless, to provide a complete evaluation of the
application, the City provides the finding that the applicant has not shown that the operator of the
existing site (Delta Property Company/Delta Sand and Gravel Company) did not have an
enforceable property interest in the expansion area on March 1, 1996. See Exhibit 1, original
Delta application dated August 12, 2005.
(A) More than 35 percent of the proposed mining area consists of soil classified
as Class I on Natural Resource and Conservation Service (NRCS) maps on
June 11, 2004; or
The proposed mining area does not include any Class I soil. See Exhibit 1, original Delta
application page 11, and including Exhibit E, EGR document dated June 2005, Evaluation of
Aggregate Resources: Delta Sand and Gravel Expansion Area.
(B) More than 35 percent of the proposed mining area consists of soil classified as Class II, or
of a combination of Class II and Class I or Unique soil, on NRCS maps available on June 11,
2004, unless the average thickness of the aggregate layer within the mining area exceeds . . .
60 feet in . . . Lane count[y].
The applicant’s report shows that more than 35 percent of the proposed expansion mining area
consists of Class II soils. See Exhibit 1, original Delta application page 11, and Figure 6 in
Exhibit E, EGR document dated June 2005: Evaluation of Aggregate Resources: Delta Sand and
Gravel Expansion Area.
The EGR report estimates that the average thickness of the aggregate layer in that area is 70.5
feet; however, DOGAMI evaluation observed only 51.5 feet depth (see Exhibit 144). The
Council also finds that EGR’s Exhibit A (e.g. p. 5- 8 and 11-13, Figures 7, 8, and 9, Appendix E
well logs and table), and related materials, establish that there are two contiguous, but distinct,
layers of sand and gravel, in the expansion area. These layers consist of an upper layer (“younger
alluvium”) and a lower layer (“older alluvium”). The EGR report also acknowledges that layers
of mudflow/clay from 4 to 12 fee thick have been experienced on the existing excavation site and
are encountered along the pit wall (see also in Exhibit 1, EGR’s Exhibit A (e.g. p. 5- 8 and 11-
13, Figures 7, 8, and 9, and Boring Log of pit wall) and Exhibit 216). Based on that information,
we also find that neither of these individual layers of aggregate is 60 feet thick. Therefore, OAR
660-023-180(3)(d)(B) applies.
In summary, even if the proposed expansion site satisfied the significance criteria of OAR 660-
023-180(3)(a), because section (3)(d)(B) applies to the site, the site would not be significant.
Step 3 Determine if conflicts from mining can be minimized
OAR 660-023-180(5) -- For significant mineral and aggregate sites, local governments shall
decide whether mining is permitted. For a PAPA application involving an aggregate site
determined to be significant under section (3) of this rule, the process for this decision is set
out in subsections (a) through (g) of this section.
Because the City Council has found that the proposed expansion site is not a significant
aggregate site under OAR 660-023-180(3), findings under -180(5) are superfluous. Nonetheless,
the City provides the following findings to provide a complete evaluation of the application.
(a) The local government shall determine an impact area for the purpose of identifying
conflicts with proposed mining and processing activities. The impact area shall be
large enough to include uses listed in subsection (b) of this section and shall be limited
to 1,500 feet from the boundaries of the mining area, except where factual information
indicates significant potential conflicts beyond this distance. For a proposed expansion
of an existing aggregate site, the impact area shall be measured from the perimeter of
the proposed expansion area rather than the boundaries of the existing aggregate site
and shall not include the existing aggregate site.
The definition of “mining area” restricts the review of impacts to 1,500 feet from the boundary
of the area where mining is proposed to occur, unless factual information indicates that a
significant potential conflict from mining could occur with existing and approved uses beyond
that distance. We find that no credible factual information existing in the record to indicate or
demonstrate that analysis of a larger impact area is required for the proposed mining activity.
The applicant has analyzed all potential conflicts with mining of aggregate material on the
expansion area within an impact area extending 1,500 feet from the perimeter of the proposed
expansion area. The land uses of that impact area and the potential conflicts, with identified
mitigation measures, are discussed in the following sections.
The applicant has analyzed the potential conflicts with in an impact area extending 1500 feet
from the perimeter of the proposed expansion area. The City and County Planning Commissions
deliberated and considered whether or not the impact area extended beyond the 1500’ minimum
as they considered each conflict ‘type’. Both Planning Commissions found that none of the
conflicts extend beyond the 1500 ft. minimum impact area as measured from the perimeter of the
proposed expansion site.
The City Council agrees that the 1500 foot distance is sufficient to include the uses listed in -
180(5)(b).
(b) The local government shall determine existing or approved land uses within the
impact area that will be adversely affected by proposed mining operations and shall
specify the predicted conflicts. For purposes of this section, "approved land uses" are
dwellings allowed by a residential zone on existing platted lots and other uses for which
conditional or final approvals have been granted by the local government. For
determination of conflicts from proposed mining of a significant aggregate site, the
local government shall limit its consideration to the following:
Uses on land surrounding the proposed expansion area, and within the impact area, consist of
residential, agricultural and industrial uses. Residences are located south, west and north of the
proposed expansion area. The nearest residence (at the southern terminus of Admiral Street) is
located approximately 40 feet north of the boundary of the proposed expansion property.
Residential subdivisions at urban densities are approved and the dwellings are under construction
due west of the expansion site, inside the Eugene Urban Growth Boundary. The Urban Growth
Boundary is located in the stream/wetland that is the western border of the proposed expansion
site. A subdivision application for additional homes located immediately west of the expansion
site (Silver Meadows Second addition) is pending. A 15.4 acre vacant property owned by
Eugene School District 4J is located immediately north of the proposed expansion site. A single
agricultural field containing nursery tree stock is located within the impact area, northeast of the
proposed expansion area. The existing Delta Sand and Gravel Company facility is located
directly east of the proposed expansion area and the Eugene Sand and Gravel facility is located
further east across the Willamette River from the Delta Sand and Gravel Company property.
(A) Conflicts due to noise, dust, or other discharges with regard to those
existing and approved uses and associated activities (e.g., houses and schools)
that are sensitive to such discharges;
The applicant has identified the potential conflicts from the proposed mining of the subject
property due to noise, dust and other discharges associated with mining and processing activities
in the proposed expansion area. Those conflicts are as follows:
Noise
:
The applicant retained Daly-Standlee, Oregon registered engineers, to prepare a noise study for
the proposed expansion area. That study, titled “Report On Noise Study for Delta Sand &
Gravel New Mining Area”, dated June 14, 2005, is attached to the application. The report
concludes that certain areas within the impact area could be subjected to mining activity noise
above the limit allowed by the Oregon Department of Environmental Quality (DEQ) for a “new
noise source” on a “previously unused site.” (See Exhibits 1 (Exhibit F) as updated on
November 14-15, 2005 to expand Zone 4; Exhibits 33, part (e), and 37 by Arthur Noxon;
Exhibit 52 by Charles Oppenheimer; Exhibits 58 and 60, Daly-Standlee; and Exhibit 59, peer
review by John Hector; Exhibit 270, from DSA responding to Noxon testimony.) The testimony
of Arthur Noxon contests the applicant’s conclusions.
Dust and Engine Emissions
The applicant retained Bridgewater to prepare an evaluation of air quality issues associated with
the proposed expansion area. That evaluation, titled “Air Quality Evaluation”, dated June 1,
2005, is attached to the application (Exhibit 1). The evaluation concludes that aggregate mining
and processing activities could generate dust and potentially create a nuisance condition for the
nearby residences due to unusual or annoying amounts of dust present in the ambient air.
Other “discharges” under the administrative rule could be defined to include air emissions from
diesel engines. However, the Bridgewater evaluation concludes that, due to the small quantity
of onsite excavation equipment and haul trucks, and the distant location of the equipment to one
another and the proposed expansion area boundary, no conflict due to diesel exhaust will result
from mining and processing activities associated with the proposed expansion area. (see Exhibit
1, Exhibit G, and Exhibit 56, Bridgewater)
Substantial testimony was also received to address concerns about the health effects of fine
particulate matter. (See Exhibits 33, Concerned Santa Clara Citizens, including reports by
Camille Marie Sears and Stephen Kimberley, MD.; Exhibit 51, Lane Regional Air Pollution
Agency; Exhibit 53, Dick Ruth; Exhibit 61, peer review; Exhibit 63, Knepler; Exhibit 223, SAIF;
Exhibit 224, Sarah Hendrickson, MD; and Exhibits 263 and 263a, S. Kimberley, MD.) Letters
from area residents indicate existing dust conflicts and lack of adequate enforcement by the lane
regional Air Pollution Agency (LRAPA). See example Exhibits 63 (Knepler) and 65 (DuPriest).
Flooding
Testimony in the record suggests that the proposed “aquaclude” will result in increased flooding
on adjacent residential lands. The applicant retained EGR to prepare an evaluation of flood
impacts associated with the proposed expansion area. That evaluation, titled “Evaluation of
Potential Flood Impacts: Delta Sand and Gravel Expansion Area”, dated June 6, 2005, (Exhibit
1, Exhibit H). The evaluation concluded that the method of mining the proposed expansion area
will not result in a potential to impede flood flow, to reduce flood storage volume within the
flood plain or to increase the velocity of water flowing across the site. The report concludes that
the method of mining completely avoids any potential adverse flood impacts associated with
mining activities on the proposed expansion area and, therefore, that no conflicts associated with
flooding will result from mining and processing activities on the proposed expansion area.
Groundwater
The applicant retained EGR to prepare an evaluation of groundwater impacts associated with the
proposed expansion area. That evaluation, titled “Digital Model of Existing Excavation Site and
New Expansion Area”, dated June 2005, is attached to the application. The evaluation
concluded that the proposed expansion of excavation (of the expansion area) could have an effect
on groundwater resources in the immediate vicinity of the excavation. As accumulated water
(rainwater and groundwater flowing into the excavations) is pumped from the excavations, the
groundwater table could be lowered radially outward from the excavation edge. EGR noted that
expansion of excavation in the area will not significantly affect municipal water supply system
users in the area and that only one known significant groundwater user still exists in the vicinity
of excavation site. The report concludes that that user is the plant nursery immediately to the
north of the site that has already experienced most of the impact it will experience from present
or expanded excavation. The evaluation concluded that mitigation may be required if other
significant groundwater users exist in the vicinity of the excavation.
Both Planning Commissions found there were conflicts with dust, noise, groundwater, wetlands
and sensitive habitat, and agriculture. The Lane County Planning Commission additionally
identified a conflict with flooding. The Eugene City Council finds that there are predicted
discharge conflicts due to dust, noise, groundwater and flooding.
(B) Potential conflicts to local roads used for access and egress to the mining
site within one mile of the entrance to the mining site unless a greater distance
is necessary in order to include the intersection with the nearest arterial
identified in the local transportation plan. Conflicts shall be determined based
on clear and objective standards regarding sight distances, road capacity, cross
section elements, horizontal and vertical alignment, and similar items in the
transportation plan and implementing ordinances. Such standards for trucks
associated with the mining operation shall be equivalent to standards for other
trucks of equivalent size, weight, and capacity that haul other materials;
The primary road used for access and egress to the expansion area is Division Avenue,
designated a Major Collector by the Eugene Arterial & Collector Street plan 1999. Division
Avenue intersects with the nearest Major Arterial, Beltline approximately 200 feet easterly of the
driveway. This is within one mile from the entrance. The record shows that the local roads used
for direct access to or from the site are River Avenue, Division Avenue (two entrances), Beaver
Street and Beaver-Hunsaker. Exhibits 28, 49. Numerous participants raised concerns about the
impacts of current and continued traffic to and from the site, using these local roads. See, e.g.
Exhibit 3, 7, 14, 16, 20, 21, 22, 23, 27, 275.
The applicant’s materials do not include a traffic impact assessment. The applicant
asserts that no traffic impact assessment is needed because approval of the application
would result in the Metro Plan diagram designation of the subject property being changed
from one resource designation (“Agriculture”) to another (“Sand and Gravel”). The
applicant further asserts that “approval of the application will not result in any additional
traffic on any local roads and, consequently, will not significantly affect any
transportation facility.” Application, 8, 14-15. However, the applicant does not provide
sufficient data documenting its current traffic impacts. This was pointed out by the
City’s Senior Transportation Analyst. Exhibit 29. The materials offered by the applicant
in response (traffic totals from 1992, extrapolated for 2005) are insufficient. Exhibit 28.
There is no way for the City to determine the frequency of the trips, which roads are
being used, the timing in comparison to peak hour traffic on the effected roads, etc.
Without such information, the City cannot make any determinations as to road capacity,
for example, as required by OAR 660-023-180(5)(b)(B).
The applicant’s representatives testified before the Planning Commissions that the
economy and demand controlled what could be sold, that production had been increasing
by approximately one percent per year, and that traffic on Hunsaker Lane would be the
result of the projects that Delta was involved in. Avon Lee Babbs and George Staples,
Planning Commission minutes January 17, 2006, pages 6, 7. If levels of use increase in
the new excavation area because demand increases, then traffic will increase. This
potential increase in traffic was not analyzed by the applicant.
Without more detailed data establishing the site’s current traffic impacts or future
demand for the excavated product, the assertion that the site will continue to have its
current level of impact has little meaning. It provides no way for the City to assess the
potential conflicts pursuant to OAR 660-023-180(5)(b)(B). Numerous participants raised Deleted:
We find that approval of the
application would not result in any
concerns about current and continued conflicts with traffic to and from the site. See, e.g.
conflicts to local roads used for access
Exhibit 3, 7, 14, 16, 20, 21, 22, 23, 27, 275. In light of such testimony, the City finds that
and egress to the mining site.
the applicant’s response to this approval criterion is an insufficient basis on which to
Deleted:
Approval of the application
would not result in any change in the
determine if the criterion is met. As such, if the site were a significant resource, the
applicant’s current use of local roads used
application would fail based on this criterion.
for access to and egress from its facility.
The proposed expansion area would
merely be an additional area of land,
adjacent to the applicant’s existing
facility, used by the applicant to provide
(C) Safety conflicts with existing public airports due to bird attractants, i.e.,
the resource that it processes on its
open water impoundments as specified under OAR Chapter 660, Division 013;
existing site into a marketable product.
No change or modification of the
The Eugene Airport is the only existing public airport in the general metropolitan area and is
applicant’s existing aggregate processing
located several miles from the proposed expansion area and outside the impact area. Due to that
methodology or facility or ingress/egress
onto local roads would be required as a
distance separating the airport from the proposed expansion area, we find that any bird attraction
result of the proposed expansion of its
by open water impoundment on the expansion area will be negligible if at all. Furthermore, this
resource extraction site. Approval of the
application would result only in the
provision is no longer applicable since the December 23, 1996 effective date of adoption of
applicant’s use of the proposed expansion
division 13 of OAR Chapter 660, which carries out Chapter 285, Oregon Laws 1985.
area as an additional, continual and
consistent source of aggregate material
needed for the continuation of the
(D) Conflicts with other Goal 5 resource sites within the impact area that are
applicant’s business, at its current level of
shown on an acknowledged list of significant resources and for which the
operation and production, at its current
facility. We find that that use would not
requirements of Goal 5 have been completed at the time the PAPA is initiated;
result in any increase in the number of
A meandering scar of the Willamette River (“East Santa Clara Waterway”) is located on a
vehicles leaving or entering the
applicant’s facility for the purpose of
portion of the northwestern boundary of the expansion area and constitutes a wetland within the
delivering its finished product to market.
impact area. This waterway was added to the City’s and County’s Goal 5 inventories as a
Furthermore, we find that that use would
not result in an increase in the number of
“Category D” stream, which requires a setback of 20 feet. No other Goal 5 resources shown on a
third party vehicles servicing applicant’s
Metro Plan acknowledged list of significant resources exist within the impact area. Lane County
business. No increase in product delivery
or service is associated with the
has authorized a variance that would allow “construction” of the aquaclude inside the DEQ 150-
applicant’s proposed addition to its
foot mandatory setback, which would move the area of disturbance nearer this Goal 5 resource. .
source of aggregate material; therefore,
no conflicts to local roads would result
The variance is to the DEQ setback, not the locally-adopted Goal 5 setback, and would not allow
from approval of the application.
any construction activities within the Goal 5 setback. The locally adopted Goal 5 setback along
Deleted:
Opponents have argued that a
East Santa Clara Waterway of 20 feet would still be met.
meandering scar of the Willamette River
(“East Santa Clara Waterway”) is located
on a portion of the northwestern
The opponents argue that the existence and operation of the aquaclude (see discussion below
boundary of the expansion area and that it
constitutes a wetland
regarding the aquaclude) will negatively impact the water levels and, consequently, the functions
Deleted:
further
of the wetland. EGR, in testimony provided during the planning commission joint public hearing
and deliberation, testified that the aquaclude would not produce the types of impacts to the
wetland argued by the opponents. EGR and the applicant provided further testimony during the
elected officials’ joint public hearing that the aquaclude would be constructed in a manner that
leaves the top elevation of the clay-filled aquaclude one foot below the measured elevation of the
wetland, approximately six to eight feet below ground surface. EGR testified that, even if the
opponents were correct in their arguments that the aquaclude would negatively impact surface
water that flows through the wetland (which EGR argues they are not), the modification to the
aquaclude construction that positions the aquaclude beneath the measured elevation of the
wetland will ensure that its existence and operation will not negatively impact the wetland.
Based upon the cumulative testimony of EGR we find that approval of the application will not
Deleted:
, even if the wetland was a
Goal 5 resource site,
result in negative impacts on the wetland.
(E) Conflicts with agricultural practices; and
We find that approval of the application will not conflict with current agricultural practices
within the impact area. The only property within the impact area currently committed to
agricultural use is tax lot 900, located on the subject property’s northern boundary. The owner of
tax lot 900 has maintained nursery tree stock on that property for many years without conflict or
negative impact from the nearby Delta Sand and Gravel Company operating facility. The owner
of tax lot 900 testified that he did not believe that Delta’s mining within the expansion area
would have negative effect on or conflict with his agricultural operation. The facility’s existing
excavation pit is immediately south of tax lot 900, well within 1500 feet of the agricultural use of
tax lot 900. Approval of the application will not change the physical relationship of tax lot 900
to the excavation area. Therefore, we find that approval of the applicant will not result in
conflicts with current agricultural practices.
(F) Other conflicts for which consideration is necessary in order to carry out
ordinances that supersede Oregon Department of Geology and Mineral
Industries (DOGAMI) regulations pursuant to ORS 517.780;
No ordinances that supersede DOGAMI regulations, pursuant to ORS 517.780 have been
identified and therefore, no consideration of other conflicts associated with such ordinances is
necessary.
(c) The local government shall determine reasonable and practicable measures that
would minimize the conflicts identified under subsection (b) of this section. To
determine whether proposed measures would minimize conflicts to agricultural
practices, the requirements of ORS 215.296 shall be followed rather than the
requirements of this section. If reasonable and practicable measures are identified to
minimize all identified conflicts, mining shall be allowed at the site and subsection (d)
of this section is not applicable. If identified conflicts cannot be minimized, subsection
(d) of this section applies.
Noise
The applicant’s expert, Daly-Standlee, concluded that, with appropriate noise mitigation
measures, noise generated by future mining operations in the proposed expansion area will
comply with the most demanding interpretation of the DEQ Noise Regulations for Industry and
Commerce at all residential properties around the proposed expansion area.
Daly-Standlee begins its analysis of potential noise impact by stating that certain areas within the
impact area may be subjected to mining activity noise above the limit allowed by the DEQ for a
“new noise source” on a “previously unused site.” DEQ noise limits for a new noise source on a
previously unused site (OAR 340-35-0015(14) and 340-35-0035(1)(b)(B)(i) (Table 8)) are more
restrictive than the noise limits for “existing noise sources” (OAR 340-35-0015(17) and 340-35-
0035(1)(a) (Table 7)). Daly-Standlee states that historically DEQ has ruled that when a mine site
is expanded onto contiguous property, noise criteria which applied to the equipment before
expansion shall also apply to the equipment while in the expansion area. Because aggregate
mining has been occurring on the 474 adjacent acres of Delta Sand and Gravel Company
ownership since 1927, it could be argued that the existing mining operation is an “existing noise
source” and that the expansion area should be subjected to the less stringent existing noise source
criteria under that historic DEQ interpretation. However, it could also be argued that the
proposed expansion area is an “unused site” and that equipment moved to that area should be
considered a “new noise source on a previously unused site.” The city finds that the latter
interpretation is the correct one.
Deleted:
¶
Delta Sand and Gravel Company has elected to address potential noise impacts of a new noise
source on a previously unused site and to subject its future aggregate extractions to the more
restrictive DEQ noise limits for such a noise source. Because Daly-Standlee states that certain
areas within the impact area may be subjected to mining activity noise above the limit allowed
by the DEQ for a new noise source on a previously unused site, this application must
demonstrate that the potential noise impacts can be minimized. OAR 660-023-0180(1)(g)
provides that noise conflicts are considered minimized under the rule when the relevant DEQ
noise regulations (OAR 340-035-0035) are met.
Daly-Standlee proposes a variety of administrative mitigation measures (as compared to
structural or engineered solutions that do not require constant monitoring), starting with limiting
the first and second lift mining operations to the time period from 7 o’clock AM to 10 o’clock
PM. Daly-Standlee proposes alternative mining procedures at various locations of the proposed
expansion area. Those alternative procedures are provided in Tables 7 and 8 of the noise study.
The study further concludes that if the proposed alternative procedures are followed during the
first and second lifts then no noise mitigation will be required for the third and subsequent lifts.
That statement is based upon the fact that due to the depth of operating equipment below grade
(surface level), the noise barrier effect provided by the face of the excavation combined with the
distance effect will reduce noise to a level in compliance with the DEQ noise restrictions at all
locations within the impact area. Daly-Standlee also recommend restricted use of certain types
of heavy equipment in zones proximate to residential property, and additional noise attenuating
equipmet on some equipment to meet DEQ standards.
Opponents of the application, primarily through testimony of Arthur Noxon, PE, acoustic
engineer, have challenged the Daly-Standlee report on grounds of methodology and conclusions.
(See Exhibits 33e,37, 64, 65, 264, and 278). The city council is compelled by opposition’s
comments pertaining to the following issues:
1. Ambient noise levels in residential areas were not measured from the more sheltered,
quieter private outdoor spaces that may be most impacted by the expanded quarry. Therefore,
ambient noise levels used in the noise analysis were higher than true ambient noise levels in
some residential locations, and truck noise in residential streets not fully measured. Therefore,
noise conflicts were not fully predicted, and minimization of those conflicts is not assured.
2. Impulse noises, such as the banging of dump trucks as they unload, were not measured
by Daly-Standlee. The aquaclude will involve filling of a 30-foot deep trench proximate to
residences, presumably with associated impulse noises, inside the DEQ setback for mining
operations. Therefore, noise conflicts were not fully predicted and minimization of those
conflicts is not assured.
3. Because the expansion site has sensitive receptors, such as residences, on three sides,
it is likely that excavation activities will not always be shielded by the quarry wall during third
and fourth lifts. For instance, the residences on the south side of the expansion site will have a
direct line of sight to excavation occurring along the north property line. Berms will be installed
only temporarily for the aquaclude construction. The Daly-Standlee analysis does not
specifically address whether the distances involved will mitigate the noise impacts. Therefore,
noise conflicts were not fully predicted and minimization of those conflicts is not assured.
4. Most of the proposed mitigation measures depend on administrative oversight, such as
self-monitoring the distances between certain types of equipment and property lines, hours of
operation, frequency of loads, traffic speeds within the expansion area, etc. These are more
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We find that Daly-Standlee’s
difficult to monitor and enforce than structural or mechanical solutions, such as the installation
rebuttal of the opponents’ arguments is
reasonable and provides significant
of berms that can be inspected and measured. There is no programmatic monitoring system
evidence that the DEQ noise level
recommended other than DEQ oversight. Therefore, minimization of noise conflicts is not
requirements will be met or exceeded
assured.
through implementation of the proposed
mitigation measures.
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Both Planning Commissions
found the noise conflict could be
minimized to a level that meets the state
DEQ standard. The Lane County
Planning Commission vote was 3-2, with
Lane County found that the initial construction of the aquaclude, which involves the removal,
1 abstention, and the Eugene Planning
stockpiling and return of topsoil and overburden to the trench during the surface digging,
Commission vote was 3-2. ¶
constitutes a construction project that is exempt from DEQ noise level requirements and
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enforcement. The City Council disagrees. Installation of the aquaclude involves mining of
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We find further that the initial
aggregate material to a depth of at least 30 feet and sales of most of that material. It is a mining
construction of the aquaclude, which
operation by definitions of OAR 660-023-0180 (Mineral and Aggregate Resources), ORS
involves the removal, stockpiling and
215.298 (Mining in exclusive farm use zone), and ORS 517.750 (Non Agricultural lands) and
return of topsoil and overburden to the
trench during the surface digging,
should not to be compared with the relatively simple surface preparation of a typical construction
constitutes a construction project that is
site. The noise generated by the excavation and filling of the aquaclude trench is a mining
exempt from DEQ noise level
activity and is therefore not exempt from DEQ noise standards pursuant to OAR 340-035-
requirements. We also find that the
applicant’s method of construction of the
0035(5)(g). In any case, noise conflicts associated with aquaclude construction have not been
aquaclude, including the creation of
adequately minimized to meet adopted standards.
temporary berms of the stockpiled topsoil
and overburden, will not produce noise
levels in excess of DEQ requirements.
Defects in the noise measurements and predictions are cumulative; hence, the total effect of
We find that the remainder of the
overestimating ambient noise levels, underestimating new noise from mining activities and
construction of the aquaclude, because it
involves the extraction and use of the
transporting excavated materials through adjacent neighborhoods, and failure to account for all
aggregate material for aggregate
noise caused by mining to create the aquaclude can result in increases in the perceived noise of
production, does not constitute a
construction project. We find further that
over 15 dBA, a possible violation of DEQ noise regulations.
Daly-Standlee has adequately
demonstrated, in its subsequent report
placed in to the record of the proceeding
We find that potential noise conflicts from the proposed mining of the expansion area cannot
during the elected officials’ public
been minimized as required by Goal 5.
hearing, that the remainder of the
construction of the aquaclude as proposed
by the applicant will not produce noise
levels in excess of DEQ requirements.¶
¶
Daly-Standlee concludes that, with
Dust
implementation of the provided
The applicant’s expert, Bridgewater, provides evidence that, with the appropriate dust
mitigation measures, the potential noise
conflicts associated with mining activity
minimization measures, mining of the proposed expansion area would be compliant with Lane
in the proposed expansion area will be
Regional Air Pollution Agency (LRAPA) airborne particulate matter emission standards and
minimized consistent with the Goal 5
Rule and, based upon the Daly-Standlee
fugitive dust requirements. We note that, for those types of conflicts addressed by local state or
analysis and conclusions, we find
accordingly.¶
federal standards, to “minimize a conflict” means to ensure conformance to the applicable
standard (OAR 660-023-0180(1)(g). Lane County’s airshed is protected and regulated by
LRAPA and the applicant currently holds an Air Contaminant Discharge Permit (ACDP) from
LRAPA for its existing mining and processing facility on the adjacent Delta property. That
ACDP requires that the rock crushing facility of the applicant remain in its current location and
also provides a limitation on the amount of rock produced from that facility.
Bridgewater provides the list of proposed dust control measures that includes the requirement
that the expansion area shall be included within the LRAPA ACDP for the existing Delta Sand
and Gravel Company operation, and that the provisions of that ACDP shall be followed by the
applicant on the proposed expansion site. A copy of the ACDP is attached to the application
(Exhibit 1). The ACDP requires that the LRAPA-approved Fugitive Dust Control Program be
followed at the existing company site. The expansion area shall be added to the ACDP and the
Fugitive Dust Control Program shall be implemented on the proposed expansion area. We find
that the activities proposed for the expansion area will become subject to the current LRAPA
ACDP. (See Exhibit 1, Exhibit G)
Bridgewater recommends additional dust control measures and those measures are listed below
in these findings.
Opponents of the application testified that they believe that the applicant cannot minimize dust
conflicts from the proposed mining with nearby residential land uses and believe that the
aggregate extraction process (mining) creates significant conflicting amounts of dust. They cite
past examples of fugitive dust and complaints to LRAPA (Exhibits 63, Knepler, and 65,
DuPriest, as examples).
We find that potential dust conflicts have been demonstrated to result primarily from three
activities associated with mining and processing of aggregate material. Those activities are: 1)
excavation of the site for aggregate material, 2) transport of the excavated material to the
processing facility and 3) the processing facility (rock crushing operations).
We find that the current ACDP includes provisions that regulate the manner in which those
activities occur on the existing Delta facility site but that the applicant has failed to provide
sufficient evidence that these regulations will control production of airborne particulate matter at
a level that meets LRAPA (and Oregon Department of Environmental Quality) standards,
particularly at point of excavation.
Furthermore, we find, based upon testimony provided in the testimony that particulate matter
that may be harmful to nearby residents and other urban uses are not readily visible to the eye,
cannot be effectively regulated based on visual inspection, and may not be visible in videos
submitted as testimony (e.g., Exhibit 267). Testimony indicated that harmful dusts may be
created at the point of excavation; that is, at the areas that will be closest to sensitive receptors
(e.g., residents and future schools). Evidence in the record also showed substantial winds from
the north, northnortheast, eastsoutheast, east, southsoutheast, and south could substantially affect
nearby land uses (for example: Exhibit 33b, Concerned Santa Clara Citizens, including reports
by Camille Marie Sears and Stephen Kimberley, MD, Exhibit 65, DuPriest, and Exhibit 267,
DVD of site conditions).
The applicant provided testimony in the form of a DVD (Exhibit 267) of the current extraction
process on the existing mining site, intended to show that the process of mining does not produce
dust. The DVD showed that the mining of the existing (wet) wall produces virtually no visible
dust; however the amount and location of naturally occurring wetness along the exaction wall
may be modified by the proposed aquaclude. The DVD also showed that the haul roads,
although watered as required by the LRAPA ACDP, were also naturally wet, but that condition
may also change because of the aquaclude. Therefore, the visual display of existing conditions is
not a convincing indicator of future conditions after the aquaclude is installed.
We note that the applicant has testified that the processing facility (the rock crusher and
associated facilities) will remain at its current LRAPA-regulated location and will not produce
finished aggregate material in excess of its current LRAPA ACDP-mandated levels. The
location of the processing facility and its production level is regulated by the ACDP. The
applicant has testified that the location of that facility and its production levels will not change as
a result of approval of this application, yet, in answer to questions at a public hearing, the
applicants also indicated that the production was somewhat flexible and reacted to demand
(Exhibit 1, application, and Exhibit 33b, Concerned Santa Clara Citizens, including reports by
Camille Marie Sears and Stephen Kimberley, MD.; Exhibit 51, Lane Regional Air Pollution
Agency; Exhibit 53, Dick Ruth; Exhibit 61, peer review; Exhibit 63, Knepler; Exhibit 223, SAIF;
Exhibit 224, Sarah Hendrickson, MD; and Exhibit263 and 263a, S. Kimberley, MD).
Questions about LRAPA’s ability to adequately regulate in a consistent and timely manner
(Exhibit 65, DuPriest) and the long term viability of LRAPA were raised during the joint elected
officials’ hearing, (see Nepler, DuPriest, Bettman, and Taylor testimonies at the 12/12/06 joint
public hearing). In case of LRAPA’s dissolution, the Oregon Department of Environmental
Quality (DEQ) would be responsible for enforcing local air quality standards. The Council finds
that conditions of approval dependent on LRAPA’s enforcement are not satisfactory for long
term mitigation of a potentially hazardous source of dust proximate to an urban residential area.
On February 20, 2008 the Lane County Board of Commissioners approved a variance that would
allow construction of berms and an aquaclude within the standard 150 foot setback from property
lines. This variance would allow excavation and dumping of dirt and aggregate materials up to
150 feet closer to existing residences. There is evidence in the record that dust and airborne
pollutants drop off over distance; therefore the variance would worsen the conflict due to dust by
allowing mining/construction activity closer to residents.
Both Planning Commissions found unanimously that there is a conflict due to dust, and that the
conflict due to dust could not be minimized to a level that meets the DEQ emission standards
applied by LRAPA. Neither planning commission conducted further ESEE analysis because
none had been provided by the applicant.
The Eugene Planning Commission voted 3-2 that the conflict could not be minimized, and Lane
County Planning Commission voted 3-2 with one abstention.
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¶
We concur, and find that potential dust conflicts from the proposed mining of the expansion area
cannot been minimized as required by Goal 5.
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Flooding
EGR has concluded that the Delta Sand and Gravel Company method of mining will create no
obstructions or other physical features that could impede flood flows across the proposed
expansion area or (thereby) cause flooding on neighboring properties. Essentially that
conclusion means that flood flows should not be impeded across the proposed expansion area if
no fill within the floodway occurs. All mining activity proposed for the expansion area will
occur as excavation taking place below existing ground surfaces. Within that mining
methodology overburden will be removed and stockpiled in areas higher in elevation than base
flood elevations and/or stockpiled at locations on company property that are below existing
ground elevations. EGR concludes that the proposed mining methodology on the proposed
expansion area will not impede flood flow, reduce flood storage volume within the flood plain or
increase the velocity of water flowing across the proposed expansion area. EGR further
concludes that the proposed mining methodology completely avoids all potential flood impacts.
Opponents of the application argue that the existence and operation of the aquaclude (see
subsequent discussion and findings regarding the aquaclude) will cause flooding on adjacent
residential lands because groundwater will be prevented by the aquaclude from migrating from
those lands to the mining site during heavy rain events. EGR has addressed that argument and
has demonstrated, in its rebuttal materials provided during the planning commission joint public
hearing and deliberation, that the movement of groundwater is not connected to surface water
that constitutes flooding during such events. Nonetheless, in response to the opponents’
argument, the applicant and EGR have provided a modified aquaclude construction that leaves
the top elevation of the clay-filled aquaclude one foot below the measured elevation of the
wetland that exists on the meandering scar, approximately six to eight feet below ground surface.
While continuing to impede the rate of flow of groundwater from the adjacent property to the
expansion area (and mining pit), the aquaclude would allow the passage of a limited amount of
groundwater from the adjacent property, over the clay material and into the mining area during
heavy rain events. That elevation will also ensure that the aquaclude has no negative impact on
the water level of the wetland at different times during the year. We find that EGR has provided
significant evidence to support it conclusion that the aquaclude will minimize potential conflicts
resulting from the movement of groundwater from adjacent lands to the mining area and that its
existence and operation will not produce flooding on adjacent lands.
The Eugene Planning Commission voted 3-2 that there was not a conflict due to flooding.
We find that approval of the application will not result in flooding conflicts with adjacent land
uses.
Groundwater
EGR recommends that a low permeability barrier, groundwater dam or other flow restriction of
the upper aquifer should be constructed, at the applicant’s expense, as the excavation proceeds to
the west. EGR concludes that the construction of a low permeability barrier could actually result
in lower pumping of water, with significant benefit to the aquifer and area groundwater users.
That low permeability barrier has been termed the “aquaclude” by EGR and the applicant.
EGR recommends that excavation should begin on the east side of the expansion area and that
the aquaclude should proceed ahead of the excavation to the west. Construction of the aquaclude
should occur before excavation comes within 400 feet of its location. The aquaclude should be
at least 12 feet wide at the bottom and slope upward through the upper aquifer from 1:5 to 2:1 to
the original ground surface. The aquaclude should be placed within the setback area to insure its
separation from the excavation proper and to place its outer edge as close as possible to the
surrounding off-site shallow aquifer. EGR also recommends that a buttress of native material be
left between the aquaclude and the excavation area proper.
EGR’s ultimate conclusion is that placement of a low permeability barrier around most of the
excavation should result in restoring groundwater levels around the excavation pit to near pre-
development levels. DOGAMI has provided the applicant with its preliminary concurrence with
EGR’s ultimate conclusion. A copy of correspondence from the agency to the applicant is
included with EGR’s evaluation attached to the application. The correspondence states that
“there may actually be a slight mounding of the ground water in the shallow aquifer within close
proximity to the barrier thus eliminating the possibilities of drawdowns which could impact
supply wells within the area.”
Construction of the aquaclude within the setback area requires an administrative variance
pursuant to Lane Code that Lane County has approved (should the Metro Plan amendments
succeed).
As discussed above in our findings regarding flooding, EGR has provided adequate and
significant evidence that the existence and operation of the aquaclude will not result in flooding
of adjacent lands. The applicant and EGR testified that the trench constructed for the aquaclude
will be filled with clay material excavated from other locations on the applicant’s adjacent
ownership and operation. We find that the proposed clay material for the aquaclude is a natural
soil that will not decompose and will not pollute underground waters.
Both Planning Commissions found unanimously that there was a conflict due to groundwater.
The low permeability barrier (aquaclude) is proposed as mitigation, and the applicant should map
the specific proposed location for the low-permeability barrier. The Eugene Planning
Commission found unanimously that the aquaclude would minimize conflicts with groundwater
to an adequate level. The Lane County Planning Commission voted 4-2 that the aquaclude
would not minimize the conflict with groundwater to an adequate level.
We find that the proposed aquaclude is sufficient mitigation to minimize conflicts.
(ORS 215.296 Standards for approval of certain uses in exclusive
farm use zones. (1) A use allowed under ORS 215.213 (2) or
215.283 (2) may be approved only where the local governing
body or its designee finds that the use will not:
(a) Force a significant change in accepted farm or forest
practices on surrounding lands devoted to farm or forest use; or
(b) Significantly increase the cost of accepted farm or forest
practices on surrounding lands devoted to farm or forest use.)
As stated previously in these findings, the established agricultural use of tax lot 900 and the
established mining operations of the adjacent existing facility have co-existed for many years
without conflict. We find that approval of this application will not change the relationship
between the two adjacent uses and will not result in conflict between the two uses. Accordingly,
approval of this application will have no effect on the farm practices occurring on tax lot 900,
will not change those practices and will not significantly increase the cost of those practices on
tax lot 900. We further find that the historical relationship between the two uses, as testified by
the applicant and the owner of the adjacent agricultural land, coupled with the immediate
location of each to the other, provides a factual basis for the reasonable conclusion that approval
of this application is consistent with ORS 215.296.
Step 4 Weigh the Economic, Social, Environmental and Energy (ESEE)
consequences of unminimized conflicts and determine whether to allow
mining
(only need to do this Step if there are conflicts that are not minimized)
(d) The local government shall determine any significant conflicts identified under the
requirements of subsection (c) of this section that cannot be minimized. Based on these
conflicts only, local government shall determine the ESEE consequences of either
allowing, limiting, or not allowing mining at the site. Local governments shall reach
this decision by weighing these ESEE consequences, with consideration of the
following:
(A) The degree of adverse effect on existing land uses within the impact area;
(B) Reasonable and practicable measures that could be taken to reduce the
identified adverse effects; and
(C) The probable duration of the mining operation and the proposed post-
mining use of the site.
The City Council has already found that the expansion site is not a significant Goal 5 resource.
Even if it were such a resource, significant conflicts caused by noise and dust have not been
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minimized. The applicant did not provide an ESEE analysis.
Based on relevant evidence in the record, the City provides the following findings weighing the
economic, social, environmental, and energy (ESEE) consequences of allowing the proposed
mining, particularly as such an allowance would relate to the conflicts created by noise and dust.
As an initial note, the record does not contain any proposal for a limited expansion. The
proposed minimization measures could arguably be considered a limitation on the expansion,
but, as discussed above, those measures are all discussed above and do not adequately minimize
the conflict. The record does not include evidence as to how the expansion could be limited.
This is a very technical feasibility question in the case of the expansion of a mining operation;
the city cannot simply propose its own idea for an alternative smaller expansion area, as the
alternative may be geologically unsound. Without some evidence regarding an alternative
proposal, the City cannot find that a limitation on the expansion could:
- reduce the degree of adverse effect on the existing land uses within the impact area;
- make the proposed minimization more effective to reduce the identified adverse
effects;
- avoid significant adverse effects to the economic viability of the proposed use; or
- change the probable duration of the mining operation or the proposed post-mining use
of the site.
As such, the City’s analysis concentrates on the ESEE consequences of allowing or denying the
proposal.
Allowing proposed expansion
The economic consequences of allowing the proposal are associated with continued
operations of an existing quarry for an estimated 12-15 years; that is, employment of up to 135
persons annually and (based on 2004 figures) payment of over $4,750,000 in wages, plus taxes
and charitable contributions to local endeavors. There is a non-quantified economic benefit to
having a local source of aggregate for local construction and roadway projects due to savings in
transportation costs, shortened delivery time, and less truck traffic on interstate highways and
rural roads.
The social and environmental consequences of allowing the proposal are closely
tied together. In excavating the expansion area, the applicant would be operating (at first
above grade) in areas that lie only about 150’ away from existing homes. Wind data in
Exhibit 33 suggests that 47 percent of the time in drier months, and at other times
throughout the year, prevailing winds will exacerbate dust exposures to existing
residents. Particulate matter can trigger asthma attacks, cause wheezing, coughing, and
respiratory irritation in individuals with sensitive airways. Exposure to relatively low
concentrations of particular matter has been linked with premature death. Those at
greatest risk are the elderly, people with pre-existing respiratory or heart disease, children
and infants (Exhibit 33: “Particulate Matter Air Pollution, May 2003” and “Cal/EPA
Ambient Air Quality Standards for Particulate Matter, June 2005”). Public testimony at
hearings revealed that there are people with sensitive airways and children living in the
area of conflict. As the applicant’s representatives testified, the economy and demand
control production, which had been increasing by approximately one percent per year,
and that will increase traffic on Hunsaker Lane. Avon Lee Babbs and George Staples,
Planning Commission minutes January 17, 2006, pages 6, 7. This potential increase in
traffic was not analyzed by the applicant. Noise levels in residential areas will increase.
The total amount of noise impact is not well quantified, but the evidence suggests that
there will be a significant effect due to decreased distances between the excavation
activities and residences, impulse noises, and inadequate mitigation for excavation not
blocked by the quarry wall. Testimony of Arthur Noxon, PE, acoustic engineer, Exhibits
33e,37, 64, 65, 264, and 278.
Evidence in the record suggests that, by allowing the expansion, there will be a positive
effect on the area’s energy use, as the aggregate used in local construction projects will be close-
by and will not need to be hauled from great distances.
Denying proposed expansion
The consequences of denying the expansion request are essentially the converse of those
that result from allowing it, discussed above. The economic consequences of denying the
proposal are that employment of up to 135 persons annually and (based on 2004 figures)
payment of over $4,750,000 in wages, plus taxes, and charitable contributions to local endeavors
will end in approximately 10 years, when the resource covered by existing permits is expected to
run out . There is a non-quantified economic benefit to having a local source of aggregate for
local construction and roadway projects may suffer an increase in costs due to increased
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L
transportation costs to import aggregate materials, lengthened delivery time, and increased truck
traffic on interstate highways and rural roads. Some of these impacts may be mitigated in the
short term, however, by increased activity by other local quarries. That is, other local quarry
operations may be able to increase production in the short term to help offset the loss from Delta
Sand and Gravel.
As noted above, the social and environmental consequences of allowing the proposal are
closely tied together. Surrounding properties will not experience the increased adverse effects of
dust caused by the shorter distances between the mining operation and residences located in the
area of conflict. There would be less likelihood that people with sensitive airways and children
living in the area of conflict would experience asthma attacks, wheezing, coughing, respiratory
irritation, or premature death. (Exhibit 33: “Particulate Matter Air Pollution, May 2003” and
“Cal/EPA Ambient Air Quality Standards for Particulate Matter, June 2005”). There may not be
a sustained increase in truck traffic, although there could be a new traffic generator allowed on
the site if the quarry were not allowed. Avon Lee Babbs and George Staples, Planning
Commission minutes January 17, 2006, pages 6, 7. Surrounding residents would not be subject
to a sustained increase in noise emanating from the quarry, which would probably result in an
increase in property values to nearby properties in the surrounding residential neighborhoods.
Testimony of Arthur Noxon, PE, acoustic engineer, Exhibits 33e,37, 64, 65, 264, and 278.
With regard to energy, evidence in the record suggests that, if the expansion is not
allowed, there will come a time when the aggregate used in local construction projects will need
to be hauled in from other areas, impacting the use of energy.
Analysis
(A) Degree of adverse effect on the existing land uses within the impact area
The degree of the dust’s adverse effects if the expansion is approved is discussed above. The
effects are significant. The applicant asserts that, even though its operation will be closer to the
existing residential uses, its dust impacts will not worsen. The City does not find this to be a
credible assertion and the applicant does not provide reasonable evidence to support its assertion.
(see discussion above). As discussed above, the minimization measures proposed by the
applicant are insufficient to adequately address those effects. Those previous findings are
incorporated here. Arthur Noxon estimates that noise levels would exceed DEQ standards.
Exhibit 278.
(B) Reasonable and practicable measures that could be taken to reduce the identified
adverse effects
The City’s findings, above, evaluate the effectiveness of the measures the applicant has proposed
to reduce dust creation and increases in noise levels, and the adverse effects of the dust and
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,
noise. As discussed above, those measures are insufficient to minimize the effects. There is no
evidence in the record to suggest that there are other reasonable and practicable measures to
reduce the effects.
(C) The probable duration of the mining operation and the proposed post-mining use
of the site.
The applicant estimates that the expansion site will provide 12-15 years of continued mining.
(Exhibit 1, Application, Page 1). The applicant provided a conceptual reclamation plan to reflect
its proposal to amend its existing reclamation plan, approved by DOGAMI in 1987 and 1995.
See File Record No.1, Original Delta application, Exhibit J. It states that “The mined area will
be filled to pre-excavation levels. No slopes will remain (same as main pit). No future use of
the reclaimed property is specified.
ESEE Conclusion
Considering the relative importance of the mining expansion when compared to the dust and
noise impacts on the existing and approved uses identified in prior findings (impacts that cannot
be minimized), the City concludes the ESEE consequences of allowing mining expansion are so
detrimental to the conflicting uses that mining should not be allowed. The City concludes that
the existing and approved uses, particularly the residential uses (health effects and noise), are of
sufficient importance relative to the proposed mining site expansion that the expansion mining
must not be allowed.
Goal 5 Conclusion. The City finds that, for the reasons stated above the application is
inconsistent with Statewide Planning Goal 5.
Statewide Planning Goal 6
To maintain and improve the quality of the air, water and land
.
resources of the state
Goal 6 requires that air, land and water resources of the state be maintained and improved by
assuring that future development, in conjunction with existing development, does not violate
applicable state and federal environmental quality standards, and does not exceed the carrying
capacity of local airsheds, degrade land resources or threaten the availability of such resources.
The State of Oregon, City of Eugene, and Lane County have regulatory measures in place to
regulate existing land use activities, as well as future development on the site.
The Lane Regional Air Pollution Authority (LRAPA) regulates the Lane County airshed and the
industries within it. LRAPA rules and permit requirements regulate the release of particulate
matter into the air. Its permit system for emissions provides the regulatory measures that
maintain the carrying capacity and quality of the airshed consistent with applicable state and
federal environmental quality standards. An Air Contaminant Discharge Permit (ACDP) is
required for the aggregate processing equipment and mining activities on the subject property.
Delta Sand & Gravel currently operates its existing, adjacent facility under an ACDP issued by
LRAPA (Permit No. 20119) that permits and regulates dust emissions generated by (1)
processing equipment; (2) storage piles; (3) roadways; and (4) yard activities. In addition to the
specific standards for particulate matter emissions that apply to the process operations, the
ACDP includes a requirement to follow the LRAPA-approved Fugitive Dust Control Program
for the existing facility. If Delta Sand & Gravel were to expand its operations onto the proposed
expansion site, the applicants proposed to implement the Fugitive Dust Control Program on the
expansion area to assure that its operations continue to comply with applicable state and federal
air standards. There was substantial evidence in the record that indicated that the fine particulate
matter (dust) would not be mitigated to a level of insignificance because of the proximity of
homes and school site to the proposed expansion area. The applicants did not provide an
Economic, Social, Environmental and Energy(ESEE) analysis. The City of Eugene found that
the application could not be approved pursuant to Goal 5 and the rules that implement Goal 5
(see Goal 5 findings for additional information).
We note that the applicant has testified that the processing facility (the rock crusher and
associated facilities) will remain at its current LRAPA-regulated location and will not produce
finished aggregate material in excess of its current LRAPA ACDP-mandated levels. The
location of the processing facility and its production level is regulated by the ACDP. The
applicant has testified that the location of that facility and its production levels will not change as
a result of approval of this application, yet, in answer to questions at a public hearing, the
applicants also indicated that the production was somewhat flexible and reacted to demand
(Exhibit 1). Further, the crushing facility is not the sole source of dust from the site. Significant
levels of dust result from on-site hauling. See Exhibit 218, attachment A. See also Exhibit 33b,
Concerned Santa Clara Citizens, including reports by Camille Marie Sears and Stephen
Kimberley, MD.; Exhibit 51, Lane Regional Air Pollution Agency; Exhibit 53, Dick Ruth;
Exhibit 61, peer review; Exhibit 63, Knepler; Exhibit 223, SAIF; Exhibit 224, Sarah
Hendrickson, MD; and Exhibit263 and 263a, S. Kimberley, MD. The City finds that the
evidence presented by the applicant was insufficient to overcome that presented by opponents.
Questions about LRAPA’s ability to adequately regulate and the long term viability of LRAPA
were raised during the joint elected officials’ hearing, because there have been regular, long-
standing discussions about the agency’s on-going existence (see Nepler, DuPriest, Bettman, and
Taylor testimonies at the 12/12/06 joint public hearing). In the case of LRAPA’s dissolution, the
Oregon Department of Environmental Quality (DEQ) would be responsible for enforcing local
air quality standards. The Council finds that conditions of approval dependent on LRAPA’s
enforcement are not satisfactory for long term mitigation of a potentially hazardous source of
dust proximate to an urban residential area.
Both of the Planning Commissions found unanimously that there is a conflict due to dust, and
that the conflict due to dust could not be minimized to a level that meets the DEQ emission
standards applied by LRAPA. Neither planning commission conducted further ESEE analysis
because none had been provided by the applicant.
Eugene Planning Commission voted 3-2 that the conflict could not be minimized, and Lane
County Planning Commission voted 3-2 with one abstention.
For reasons explained in more detail under Goal 5 findings, we find that potential dust conflicts
from the proposed mining of the expansion area have not been minimized and, therefore, this
application is not consistent with Goal 6 regarding air quality.
Statewide Planning Goal 7
To protect life and property from natural disasters and hazards.
The proposed expansion area is partially located within an un-numbered A zone of the
Willamette River flood plain as illustrated on the federal Flood Area Insurance Rate Map
(FIRM) (Panel 1126 of 2975, effective June 2, 1999). It is located immediately west of a
Flood Insurance Study (FIS) area that has defined floodways and base flood elevations of the
Willamette River.
Because the floodway for the Willamette River is determined to be substantially east of the
expansion area, the FIS has determined through definition of the floodway that the expansion
area could be completely obstructed without increasing the water-surface elevation of the
100-year flood more than one foot at any point.
All mining activity proposed for the expansion area would occur as excavation taking place
below existing ground surfaces. Overburden would be removed and stockpiled in areas with
elevation higher than base flood elevations or in areas currently below existing ground
elevations. That mining methodology will preclude the need for sound berms or flood
containment berms that could impede flood flows across the expansion area. Berms
associated with the construction of the aquaclude will be temporary in nature and will be
removed by returning the material to the area of the aquaclude as construction occurs or prior
to anticipated heavy rain events.
Therefore, we find that the proposed use of the expansion area would be consistent with the
purpose and intent of Goal 7.
Statewide Planning Goal 8
To satisfy the recreational needs of the citizens of the state.
We find that there has been a legislative determination by the Metro jurisdictions through its
comprehensive planning process, as implemented by the Metro Plan diagram, that the subject
property is not designated for recreational facilities or opportunities. Identified recreational
needs have been provided for on other sites within the Metro urban area. Therefore, we find that
the proposed amendments would be consistent with Goal 8.
Statewide Planning Goal 9
.
To diversify and improve the economy of the state
Goal 9 is primarily focused on commercial and industrial development within urban areas.
To the extent that the goal is applicable to the application, we find that both the existing
agricultural use and the proposed use of the expansion area would contribute to the economy
of the Metro area through the employment of persons and by providing the natural resource
for construction, both of which contribute to the economic health of the state of Oregon.
Therefore, we find that approval of the application would be consistent with the intent and
purpose of Goal 9.
Statewide Planning Goal 10
.
To provide for the housing needs of the citizens of the state
The primary purpose of Goal 10 is to ensure that sufficient buildable land is available to provide
for a full range of housing needs within the urban area and to avoid creating shortages of
residential land which would artificially restrict market choices in housing type, price range or
location. The subject property has been designated agricultural in the Metro Plan and is not
planned for residential use. There are three dwellings on the property that would be displaced as
a direct consequence of the proposed amendments. We find that the proposed amendments, and
the eventual loss of the three dwellings, would not measurably impact the existing or future
housing stock in the Metro Plan area, nor will they directly result in population growth, increase
the demand for housing beyond previously acknowledged projections, or otherwise conflict with
the purpose and intent of Goal 10.
Statewide Planning Goal 11
To plan and develop a timely, orderly and efficient arrangement
of public facilities and services to serve as a framework for urban
development.
Approval of the application would result in a natural resource use of the expansion area.
Significant levels of public services are not required for that use. Approval of the
application will not result in the need for extension of public facilities and services to the
expansion area beyond those already existing at the current facility.
To the extent that Goal 11 is applicable to this application, we find that approval of the
application will be consistent with the intent and purpose of the goal.
Statewide Planning Goal 12
To provide and encourage a safe, convenient and economic
transportation system.
Goal 12 is implemented through the provisions of the State Transportation Planning Rule (TPR)
Deleted:
The intent of
(OAR 660, Division 12).
OAR 660-012-0060(1) requires that “Where an amendment to a * * * comprehensive
plan * * * would significantly affect an existing or planned transportation facility, the
local government shall put in place measures as provided in section (2) of this rule to
assure that allowed land uses are consistent with the identified function, capacity, and
performance standards (e.g. level of service, volume to capacity ratio, etc.) of the facility.
A plan or land use regulation amendment significantly affects a transportation facility if
it would:
(a) Change the functional classification of an existing or planned transportation
facility (exclusive of correction of map errors in an adopted plan);
(b) Change standards implementing a functional classification system; or
(c) As measured at the end of the planning period identified in the adopted
transportation system plan:
(A) Allow land uses or levels of development that would result in types or
levels of travel or access that are inconsistent with the functional
classification of an existing or planned transportation facility;
Formatted: Font: 12 pt
(B) Reduce the performance of an existing or planned transportation
facility below the minimum acceptable performance standard identified in
the TSP or comprehensive plan; or
(C) Worsen the performance of an existing or planned transportation
facility that is otherwise projected to perform below the minimum
acceptable performance standard identified in the TSP or comprehensive
Deleted:
amendments to functional
plan. ”
plans, acknowledged comprehensive
plans, and land use regulations which
The Eugene-Springfield Metropolitan Area Transportation Plan (TransPlan) provides the
significantly affect a transportation
facility shall assure that allowed land
regional policy framework through which the TPR is implemented at the local level. The
uses are consistent with the identified
TPR states that when land use changes, including amendments to acknowledged
function, capacity, and level of service of
the facility.
comprehensive plans, significantly affect an existing or planned transportation facility,
the local government must put in place measures to assure that the allowed land uses are
consistent with the function, capacity and performance standards of those transportation
facilities.
Pursuant to OAR 660-012-0060(1), the TPR requires a determination of which
transportation facilities will experience a significant effect as a result of the proposed
Deleted:
We find that approval of the
plan amendment, and defines what constitutes a significant effect. A plan amendment is
application will result in any change in
considered to significantly affect a transportation facility if, for example, the amendment
the applicant’s current (and future) use of
local roads used for access and egress to
will reduce the performance of the transportation facility below the minimum acceptable
it facility. The applicant testified that the
performance standard (often described in terms of Level of Service standards or
proposed expansion area will only be
used by the applicant to provide the
volume/capacity ratios). If a local government determines that an amendment would
resource that it processes on its existing
significantly affect a transportation facility, the local government must put in place
site into a marketable product. The
applicant testified and that no change or
measures to assure that the allowed land uses are consistent with the identified "function,
modification of the applicant’s existing
capacity and performance standards" of the facility ((OAR 660-012-0060(1)). An
aggregate processing methodology or
facility will be required as a result of the
example of such a measure is conditioning approval on the construction of a minor street
proposed expansion of its resource
improvement.
extraction site¶
. Approval of the application will result
only in the applicant’s use of the
To comply with OAR 660-012-0060, the City must evaluate the proposed plan
proposed expansion area as an additional,
continual and consistent source of
amendment relative to criteria used in TPR to determine "significant effect" on local
Formatted: Font: 12 pt
aggregate material needed for the
transportation facilities.
continuation of the applicant’s business,
at its current level of operation and
production, at its current facility. The
The applicant has simply stated that it does not intend to increase its current traffic
applicant testified that that use will not
result in any increase in the number of
impacts as a result of the site expansion. However, the applicant neither provides data
vehicles leaving or entering the
establishing its current level of use (trip generation, peak hour usage, etc.) or proposes
applicant’s facility for the purpose of
delivering its finished product to market.
any legally enforceable guarantee that it will hold itself to that level of use. While the
That use will not result in an increase in
City agrees that the applicant could show consistency with Goal 12 by providing such a
the number of vehicles servicing
applicant’s business. ¶
guarantee, possibly through a condition imposing a trip cap for example, without data
The Eugene City’s Senior Transportation
about the facility’s current transportation impacts, the City cannot formulate a condition
Analyst, questioned the long range
impact of the permit. Exhibit 29.
to ensure such consistency.
Approval of the permit would extend the
life of this operation, at current levels,
Formatted: Font: 12 pt
beyond the horizon of the regional
Based on the above discussion, the applicant has not shown consistency with Statewide
transportation model. Therefore, future
Planning Goal 12.
impacts are unknown and were not
assessed as part of this review. ¶
But, because no increase in product
delivery or service is associated with the
applicant’s proposed use of the expansion
area, we find that Metro area
Statewide Planning Goal 13
transportation facilities will not be
significantly affected as a result of
To conserve energy
approval of the application.¶
Therefore, we find that approval of the
application is consistent with the intent
and purpose of Goal 12.¶
We find that the proposed use of the expansion area will provide a continued stable and long-
term source of sand and gravel aggregate material proximate to the Metro area market it serves.
From an energy conservation perspective, an aggregate mining site located within the Metro area
is highly preferable to a supply site located outside the Metro area which requires the
transporting of the material, processed or otherwise, to the Metro area for use. Approval of the
application would result in the establishment of a stable and long-term source of aggregate
material without an increase in energy consumption.
Therefore, we find that approval of the application would be consistent with the intent and
purpose of Goal 13.
Statewide Planning Goal 14
To provide for an orderly and efficient transition from rural to
urban land use.
Only resource use is proposed for the site and no urban facilities or services, other than those
currently provided, are required to support that use.
To the extent that Goal 14 is applicable to this application, we find that approval of the
application would be consistent with its purpose and intent.
Statewide Planning Goal 15
To protect, conserve, enhance and maintain the natural, scenic,
historical, agricultural, economic and recreational qualities of
lands along the Willamette River as the Willamette River
Greenway.
The subject property is not located within the Willamette River Greenway. Accordingly,
Goal 15 is not applicable.
Statewide Planning Goal 16, 17, 18, 19
Estuarine Resources, Coastal Shorelines, Beaches and Dunes, and Ocean Resources)
(
The subject property contains no estuarine resources, shorelines, beaches, dunes, or ocean
resources. Accordingly, Goals 16, 17, 18, and 19 are not applicable.
Adoption of the amendment must not make the Metro Plan
internally inconsistent.
Neither the Eugene Code nor the Metro Plan has been amended to adopt procedures and
requirements consistent with the Goal 5 Rule for the consideration of PAPAs regarding the
designation of significant aggregate sites or specific criteria regarding the consideration of a
PAPA proposing to add a site to the Metro Plan’s acknowledged list of significant aggregate
sites. Therefore, only the provisions of the Goal 5 Rule are directly applicable to Eugene’s
consideration of this application. Metro Plan goals and policies and land use regulations of Lane
County and the City of Eugene are not applicable to this application.
The Land Use Board of Appeals has recently discussed OAR 660-023-0180’s comprehensive
regulatory scheme that is intended to supersede local land use laws and policies. Based on
LUBA’s decision in Eugene Sand and Gravel Inc. v. Lane County, 44 Or LUBA 50, rev’d in
part on other grounds, 189 Or App 21, 74 P3d 1085 (2003), it appears that LUBA believes the
City is prohibited from considering or applying Metro plan policies that go beyond OAR 660-
023-0180 in reviewing this proposal. Since these findings have identified other bases for denial
of the proposal, the City does not address the Metro Plan policies. However, it is not clear to the
City that the Goal 5 rule absolutely prohibits the City from doing so.
ATTACHMENT C
ORDINANCE 1
ORDINANCE NO. ___________
AN ORDINANCE DENYING PROPOSAL TO AMEND THE EUGENE-
SPRINGFIELD METROPOLITAN AREA GENERAL PLAN (METRO
PLAN) TO REVISE THE GOAL 5 SIGNIFICANT MINERAL AND
AGGREGATE RESOURCES INVENTORY AND REDESIGNATE FROM
“AGRICULTURE” TO “SAND & GRAVEL; AND PROVIDING AN
EFFECTIVE DATE.
The City Council of the City of Eugene finds that:
A.
In August 2005, application No. PA 05-6151 was made to Lane County for a
Type II Metro Plan Amendment to add property located outside the Metro Plan UGB and within
the Metro Plan Boundary to the Metro Plan Goal 5 Inventory of Significant Mineral &
Aggregate Sites, to change the Metro Plan designation for that property from “Agriculture” to
“Sand & Gravel” and to concurrently rezone that property in the County’s Rural Comprehensive
Plan.
B.
Sections 9.7700 through 9.7750 of the Eugene Code, 1971 (“EC”) set forth
procedures for amendment of the Metro Plan. Pursuant to the procedures described at EC
9.7730(2)(b), the Board of Commissioners of Lane County referred the above-described
application to the City Council of the City of Eugene for City action on the proposed Metro Plan
amendments.
C.
The Eugene Planning Commission reviewed the proposal with the Lane County
Planning Commission in public hearings on November 15, 2005 and January 25, 2006,
deliberated jointly on July 25, and August 30, 2006 and the matter was forwarded to the City
Council and Board with formal Planning Commission recommendations.
D.
The City Council has conducted a public hearing and is now ready to take action.
NOW, THEREFORE,
THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS:
Section 1.
The Metro Plan amendments proposed by application No. PA 05-6151 (Lane
County) is hereby denied.
Section 2.
This Ordinance shall become effective 30 days from its adoption by the City
Council and approval of Mayor, as provided in the Eugene Charter of 2002, or upon adoption of
an identical action by the Board of Commissioners of Lane County, whichever date is later.
Passed by the City Council this Approved by the Mayor this
____ day of ____________, 2008 ____ day of _______________, 2008
___________________________ _______________________________
City Recorder Mayor
Exhibit A to Eugene Ordinance No. __________
FINDINGS OF FACT AND CONCLUSIONS OF LAW
GENERAL FINDINGS AND CONCLUSIONS:
Delta Sand and Gravel Company is requesting approval of Eugene-Springfield Metropolitan
Comprehensive Plan (Metro Plan) amendments to add 72.31 acres of its property to the Goal 5
Significant Aggregate Site Inventory of the Metro Plan and to re-designate that land from
Agriculture to Sand and Gravel. In addition to these Metro Plan amendments, Lane County is
also considering the applicant’s related request to rezone the subject property from Exclusive
Farm Use to Sand, Gravel and Rock Products. The subject property contains 72.31 acres and is
located adjacent to the existing Delta mining and processing facility. The property is adjacent to,
but outside of, the Eugene-Springfield Urban Growth Boundary and is located within the Metro
Plan boundary. The proposed plan amendments and rezone will allow Delta Sand and Gravel
Company to expand its aggregate mining site onto its adjacent property (the proposed expansion
area that is the subject of this request).
METRO PLAN AMENDMENT
OAR 660-023-0180 is the Oregon Statewide Planning Goal 5 Rule regarding aggregate
resources. OAR 660-023-0180(9) provides that if local governments have not amended their
comprehensive plans and land use regulations to include procedures and requirements consistent
with the Goal 5 Rule for the consideration of post-acknowledgement plan amendments (PAPAs)
regarding aggregate resources, the procedures and requirements of the Goal 5 Rule shall be
directly applicable to a local government consideration of a PAPA. Therefore, Metro Plan, Lane
Code and Eugene Code land use regulations related to PAPAs regarding aggregate resources are
not applicable to this application. The Land Use Board of Appeals decision in Morse Bros. v.
Columbia County, 37 Or LUBA 85 (1999) supports the conclusion that OAR 660-023-0180(9)
preempts the application of local comprehensive plan amendment to such PAPAs until the local
comprehensive plan and land use regulations have been amended to comply with the Goal 5
Rule.
The Metro Plan has not been amended to adopt procedures and requirements consistent with the
Goal 5 Rule for the consideration of such PAPAs. The Lane Code and the Eugene Code do not
contain specific criteria regarding the consideration of a PAPA proposing to add a site to the
Metro Plan’s acknowledged list of significant aggregate sites and have not been amended to
conform to the requirements of the Goal 5 Rule through periodic review. Therefore, only the
provisions of the Goal 5 Rule shall be directly applicable to Eugene and Lane County’s
consideration of this application.
METRO PLAN AMENDMENT CRITERIA AND FINDINGS
The subject property is within the Metro Plan boundary and outside of the Eugene-Springfield
Urban Growth Boundary. The application requests an amendment to the Metro Plan diagram
which is a Type II Metro Plan amendment. The application constitutes a citizen-initiated Type II
Metro Plan amendment.
Eugene Code 9.7730(3) - Approval Criteria
(3) Criteria for Approval of Plan Amendment. The following
criteria shall be applied by the city council in approving or
denying a Metro Plan amendment application:
(a) The amendment must be consistent with the relevant
Statewide Planning Goals adopted by the Land Conservation and
Development Commission; and
(b) Adoption of the amendment must not make the Metro Plan
internally inconsistent.
Statewide Planning Goal 1
To ensure the opportunity for citizen involvement in all
phases of the planning process.
Chapter 9 of the Eugene Code provides for a notification and participation process for all quasi-
judicial land use matters. Notice was provided in conformance to these requirements. By
providing the notices required by state law and the Eugene Code and public evidentiary hearings
before its planning commission and City Council, the City of Eugene satisfies the requirements
of Goal 1.
Some participants raised concerns about the procedures used to consider the application. The
applicant’s request is composed of numerous applications. Those applications, taken alone,
would be subject to different review procedures under the City and County Codes. Under one
applicable process, the City Council and Board of Commissioners would not have accepted new
evidence for their review (instead, they would base their decision on the evidence gathered in the
Planning Commissions’ process). However, another applicable process required them to accept
new evidence. To allow for a consolidated review while ensuring that no participant’s
substantial right is prejudiced, the City and County opted to accept new evidence. The criteria
applicable to the applications are very similar, making it nearly impossible to judiciously oversee
a process that allowed new evidence only with respect to one of the applications, but not the
others. By providing for all of the procedural safeguards for a quasi-judicial evidentiary hearing,
the City and County ensured that Goal 1 was satisfied.
Statewide Planning Goal 2
To establish a land use planning process and policy framework
as a basis for all decisions and actions related to the use of land
and to assure an adequate factual base for such decisions and
actions.
The Eugene-Springfield Metropolitan Area General Plan (Metro Plan) is the policy tool that
provides a basis for decision-making in this area. The Metro Plan was acknowledged by the
State in 1982 to be in compliance with statewide planning goals. These findings and record
show that there is an adequate factual base for City’s decision concerning the proposed
amendments. Goal 2 requires that plans be coordinated with the plans of affected governmental
units and that opportunities be provided for review and comment by affected governmental units.
To comply with the Goal 2 coordination requirement, the City coordinated the review of these
amendments with all affected governmental units. Specifically, notice was mailed to Lane
County Transportation Planning, Lane County Flood Management, Lane County Water
Quantity/Quality, Santa Clara (neighborhood) Community Organization, Oregon State Parks &
Recreation Department, 1000 Friends of Oregon, Oregon State Fish and Wildlife Department,
Oregon Department of Transportation/Planning, Division of State Lands/Wetlands, Oregon
Department of land Conservation and Development, Lane regional Air Pollution Authority,
Eugene (School) District 4J, Lane County Wetlands, Lane County Surveyors, Lane County Farm
Bureau, and the City of Eugene Planning Division. Therefore, the amendments are consistent
with Statewide Planning Goal 2. See, however, the findings under Statewide Planning Goal 3.
Statewide Planning Goal 3
To preserve and maintain agricultural lands.
Goal 3 provides for the protection of agricultural lands as those are defined under the goal.
In western Oregon, agricultural land consists of primarily Class I through IV soils identified
by the U.S. Department of Agriculture Natural Resources Conservation Service and includes
other lands found suitable for farm use considering soil fertility, climatic conditions,
availability of water and methodologies available for farm practices.
Soils on the subject property have been identified as containing 75 percent Class II soils.
The subject property contains no Class I soils (Exhibit 1).
The applicant claims that the subject property also contains a significant mineral resource site
of the quantity and quality that, pursuant to Goal 5 and the Oregon Administrative Rules
implementing Goal 5, establish the subject property as for aggregate purposes. The
administrative rules recognize that significant aggregate resources may be mined in areas of
agricultural soils. The potential of such conflicts has been addressed in the sections
pertaining to the Goal 5 rule. The City of Eugene finds that the applicant failed to prove that
the mineral resources were significant pursuant to Goal 5 and the Oregon Administrative
Rules implementing Goal 5, and denies the application to reclassify the site as a Goal 5
resource. Pursuant to the denial of the application, existing agricultural lands are preserved
and maintained consistent with Goal 3.
If the applicant had provided a sufficient basis to determine that the mineral resource was
significant under Goal 5, the City would have more closely examined the testimony suggesting
that the proposal interferes with Agricultural land. It is not clear whether the City would need to
approve an exception to Goal 3 in order to change the Metro Plan designation from Agriculture
to Sand and Gravel. While sand and gravel operations are a permitted non-farm use on
agricultural lands under ORS 215.283, Goal 3 requires that non-farm uses be “minimized to
allow for maximum agricultural productivity.” The Metro Plan does so by treating agricultural
land and those lands which are designated for sand and gravel operations separately.
“Designated agricultural lands” under the Metro Plan “are protected to preserve agricultural
resource values.” Metro Plan, II-E-10. Whereas, the “Sand and Gravel” designation is applied to
lands to allow “[a]ggregate extraction and processing.” Id. While the Metro Plan does provide
for some reclamation of this area (consistent with state law), the conversion of an area from
“Agricultural” to “Sand and Gravel” completely eliminates its protected status under the Metro
Plan. Thus, the proposed removal of the applicant’s expansion area from the Metro Plan’s
Agricultural designation is arguably contrary to the Goal 3 mandate to “preserve and maintain
agricultural lands.”
In light of this, if the Goal 5 standards had been met, the City may have determined that the
applicant is required to take a Goal 2 Exception to Goal 3.
Statewide Planning Goal 4
To preserve forest lands for forest use.
We find that Goal 4 is not applicable to this application. There has previously been a legislative
determination by the metropolitan jurisdictions, as embodied in the acknowledged Metro Plan,
that the subject property is not forest land. This determination is validated by the fact that are no
forest resources existing on the subject property or on any surrounding land and there are no
areas within the subject property that fall within the definition of forest land. Also, the soils of
the subject property (Chehalis silty clay loam, Newberg loam, Newberg fine sandy loam,
Newberg urban land complex and Camas gravelly sandy loam) have no designated Douglas Fir
site index according to Lane County’s 1997 Soil Ratings for Forestry and Agriculture.
Statewide Planning Goal 5
To conserve open space and protect natural and scenic resources.
There has previously been a legislative determination by the Metro Plan jurisdictions that no
Goal 5 resources exist on subject site except wetlands, which are addressed in these findings.
The subject property has not been included in any inventory of needed open space or scenic areas
defined by Goal 5, nor has it been identified in the Metro Plan as having any historic, cultural or
natural resources which need to be preserved and/or protected.
With respect to wetlands, EGR & Associates, Inc., in its Evaluation of Aggregate Resources
attached to the application, determined that there is a wetland located within the meander scar
(aka East Santa Clara Waterway) along the northwest boundary of the subject property. This
wetland does not extend beyond the eastern bank of the meander scar and lies within the required
150-foot mining setback from the property boundary. Avoidance of wetlands in areas not
covered by existing DOGAMI Mining Permits and will be accomplished by limiting mining
operations to areas outside the applicable setbacks from the expansion property boundary,
according to draft County-imposed conditions of approval (see staff report for November 1, 2006
public hearing, Attachment 1, Exhibit C: Lane County draft Ordinance No. PA 1238, Conditions
Necessary to Minimize Conflicts). All wetland area within the 150 foot setback shall be
exempted from the administrative variance and the construction of the aquaclude would occur
outside of the wetland area. Two excavated ponds are located in the southern portion of the site,
which were previously used in aggregate extraction and are currently covered by DOGAMI
permits, and thus exempt from wetland regulation. (Exhibit 1, Exhibit E)
The Goal 5 Administrative Rule for mineral and aggregate resources specifically addresses other
Goal 5 resources and limits considerations of conflict to “Goal 5 Resource Sites” that have been
identified in the Metro Plan. The applicant claims that the subject property contains a significant
mineral resource site of the quantity and quality that establish the subject property as for
aggregate purposes pursuant to Goal 5 and the Oregon Administrative Rules implementing Goal
5. The administrative rules recognize that significant aggregate resources may be mined in areas
that contain other Goal 5 resources. The potential of such conflicts has been reviewed according
to the Goal 5 rule.
The City of Eugene finds that the applicant failed to show that the site’s aggregate resources
were significant pursuant to Goal 5 and the Oregon Administrative Rules implementing Goal
5; therefore, the application to list the site as a Goal 5 resource is denied. This action is
consistent with Goal 5 and the rules that implement it as shown below.
Step 1 Determine if the PAPA information is adequate
OAR 660-023-0180(8) -- In order to determine whether information in a PAPA submittal
concerning an aggregate site is adequate, local government shall follow the requirements of
this section rather than OAR 660-023-0030(3). An application for approval of an aggregate
site following sections (4) and (6) of this rule shall be adequate if it provides sufficient
information to determine whether the requirements in those sections are satisfied. An
application for a PAPA concerning a significant aggregate site following sections (3) and (5)
of this rule shall be adequate if it includes:
The application at issue is for a PAPA concerning a significant aggregate site following OAR
660-023-0180(3) and (5). The applicant does not seek approval following sections (4) or (6).
Therefore, sections (a) through (e), below, apply.
(a) Information regarding quantity, quality, and location sufficient to determine
whether the standards and conditions in section (3) of this rule are satisfied;
The application includes information regarding quantity, quality, and location. The applicant has
provided an analysis of the aggregate resource, conducted by EGR & Associates, Inc. (EGR).
See File Record No.1, Original Delta application, including EGR document dated June 2005:
Evaluation of Aggregate Resources: Delta Sand and Gravel Expansion Area, which is Exhibit E
in the 12 August 2005 application by Delta for a zoning change entitled “Application for
amendment of the Eugene-Springfield metropolitan comprehensive plan map and significant
aggregate resource site inventory and zone change from EFU to sand gravel and rock products”.
Supplemental information was presented by the applicant, EGR, and other persons during the
public hearings before the Planning Commission and City Council. The Eugene Planning
Commission found unanimously that there was adequate information submitted in the PAPA
application.
The City Council finds that the information provided by the applicant provides an adequate basis
for determining whether or not the standards and conditions in OAR 660-023-0180(3) are
satisfied.
(b) A conceptual site reclamation plan;
The applicant provided a conceptual reclamation plan to reflect its proposal to amend its existing
reclamation plan, approved by DOGAMI in 1987 and 1995. See File Record No.1, Original
Delta application, including Operating and Reclamation Plan, which is Exhibit J in the 12 August
2005 application by Delta for a zoning change entitled “Application for amendment of the
Eugene-Springfield metropolitan comprehensive plan map and significant aggregate resource
site inventory and zone change from EFU to sand gravel and rock products”. See also File
Record No. 17 and Exhibit 49.
The City Council finds that the reclamation plan provided by the applicant satisfies this
requirement.
(c) A traffic impact assessment within one mile of the entrance to the mining area
pursuant to section (5)(b)(B) of this rule;
If the subject site were found to be a significant aggregate site, OAR 660-023-
180(5)(b)(B) would require analysis of “[p]otential conflicts to local roads used for
access and egress to the mining site within one mile of the entrance to the mining site
unless a greater distance is necessary in order to include the intersection with the nearest
arterial identified in the local transportation plan.” The record shows that the local roads
used for direct access to or from the site are River Avenue, Division Avenue (two
entrances), Beaver Street and Beaver-Hunsaker. Exhibits 28, 49. Numerous participants
raised concerns about the impacts of current and continued traffic to and from the site,
using these local roads. See, e.g. Exhibit 3, 7, 14, 16, 20, 21, 22, 23, 27, 275.
The applicant’s materials do not include a traffic impact assessment relating to the
identified local roads. The applicant asserts that no traffic impact assessment is needed
because approval of the application would result in the Metro Plan diagram designation
of the subject property being changed from one resource designation (“Agriculture”) to
another (“Sand and Gravel”). The applicant further asserts that “approval of the
application will not result in any additional traffic on any local roads and, consequently,
will not significantly affect any transportation facility.” Application, 8. Throughout the
local proceedings, the applicant has stated that there would be no increase in the number
of vehicle trips for product delivery or service as a result of the proposed expansion.
Application, 8, 14-15. However, the applicant does not provide sufficient data
documenting its current traffic impacts. This was pointed out by the City’s Senior
Transportation Analyst. Exhibit 29. The materials offered by the applicant in response
(traffic totals from 1992, extrapolated for 2005) are insufficient. Exhibit 28. There is no
way for the City to determine the frequency of the trips, which roads are being used, the
timing in comparison to peak hour traffic on the effected roads, etc. Without such
information, the City cannot make any determinations as to road capacity, for example, as
required by OAR 660-023-180(5)(b)(B).
The applicant’s representatives testified before the Planning Commissions that the
economy and demand controlled what could be sold, that production had been increasing
by approximately one percent per year, and that traffic on Hunsaker Lane would be the
result of the projects that Delta was involved in. Avon Lee Babbs and George Staples,
Planning Commission minutes January 17, 2006, pages 6, 7. If levels of use increase in
the new excavation area because demand increases, then traffic will increase. This
potential increase in traffic was not analyzed by the applicant.
Without more detailed data establishing the site’s current traffic impacts or future
demand for the excavated product, the assertion that the site will continue to have its
current level of impact has little meaning. It provides no way for the City to assess the
potential conflicts pursuant to OAR 660-023-180(5)(b)(B). The City must be able to
determine whether there are potential conflicts to the specific local roads used for access
and egress to the mining site. The applicant’s submittal fails to provide sufficient
information to determine whether such potential conflicts exist. Had the City been the
recipient of the application, the application would not have been deemed complete. To
the extent that OAR 660-023-180(8) is an approval criterion, the City finds that it is not
met. As discussed below, this inadequacy in the application causes the City find that the
proposal fails to adequately address OAR 660-023-0180(5)(b)(B).
(d) Proposals to minimize any conflicts with existing uses preliminarily identified by
the applicant within a 1,500 foot impact area; and
The applicant has provided proposals to minimize conflicts with existing uses within a 1500 foot
impact area. See File Record No.1, Original Delta application, Introduction, in the 12 August
2005 application by Delta for a zoning change entitled “Application for amendment of the
Eugene-Springfield metropolitan comprehensive plan map and significant aggregate resource
site inventory and zone change from EFU to sand gravel and rock products,” which contains the
following consultants reports: Report on Noise Study (Daly-Standlee & Associates, Inc.)
(hereinafter referred to as “Daly-Standlee”or DSA) (Exhibit F); Air Quality Evaluation
(Bridgewater Group, Inc., hereinafter referred to as “Bridgewater”) (Exhibit G); Flood Impact
Evaluation (EGR & Associates, Inc., hereinafter referred to as “EGR”)(Exhibit H); and Digital
Model-Groundwater (EGR) (Exhibit I). Proposals to minimize conflicts with existing uses
preliminarily identified by the applicant within a 1,500 foot impact area were incorporated into
draft conditions of approval by Lane County ((see staff report for November 1, 2006 public
hearing, Attachment 1, Exhibit C: Lane County draft Ordinance No. PA 1238, Conditions
Necessary to Minimize Conflicts).
The City Council finds that this requirement has been satisfied, even though, as discussed later in
these findings, the council disagrees with the applicant and finds that several of the conflicts are
not minimized..
(e) A site plan indicating the location, hours of operation, and other pertinent
information for all proposed mining and associated uses.
The application includes a site plan indicating the location, hours of operation, and other
pertinent information for all proposed mining and associated uses. See File Record No.1,
Original Delta application, Introduction, in the 12 August 2005 application by Delta for a zoning
change entitled “Application for amendment of the Eugene-Springfield metropolitan
comprehensive plan map and significant aggregate resource site inventory and zone change from
EFU to sand gravel and rock products.”
Summary: OAR 660-023-0180(8) provides that an application for approval of an aggregate site
shall be adequate if it provides sufficient information to determine whether the requirements in
its subsections (a) – (e) are satisfied. Subsection (c) requires a traffic impact assessment within
one mile of the entrance to the mining area pursuant to section (5)(b)(B) of the rule. The City
finds that the applicant failed to provide such a traffic impact assessment. As such, if the site
were a significant resource, the application would not be adequate, and, if OAR 660-023-0180(8)
operates as an approval criterion, the application would be denied on this basis. Since other
bases for denial follow, the City does not rely solely on this determination.
OAR 660-023-180(2)(b) -- Local governments shall apply the criteria in section (3) or (4) of
this rule, whichever is applicable, rather than OAR 660-023-0030(4), in determining whether
an aggregate resource site is significant.
The applicant submitted information to address OAR 660-023-180(3). The criteria in OAR 660-
023-180(4) are not applicable.
Step 2 Determine if the resource site is significant
OAR 660-023-180(3) -- An aggregate resource site shall be considered significant if adequate
information regarding the quantity, quality, and location of the resource demonstrates that the
site meets any one of the criteria in subsections (a) through (c) of this section, except as
provided in subsection (d) of this section:
Above, the City finds that the applicant provided adequate information for evaluating the
significance of the resource.
Based on these findings, the Council determines that the applicant has not met its burden of
proof to establish that the aggregate resource meets the “significance” requirements of OAR 660-
023-0180(3) regarding quantity and quality of the aggregate resource.
The Council evaluated the aggregate resource in accordance with OAR 660-023-0180(3), the
pertinent parts of which follow:
(3) An aggregate resource site shall be considered significant if adequate
information regarding the quantity, quality, and location of the resource demonstrates
that the site meets any one of the criteria in subsections (a) through (c) of this section,
except as provided in subsection (d) of this section:
(a)A representative set of samples of aggregate material in the deposit on the
site meets applicable Oregon Department of Transportation (ODOT) specifications for
base rock for air degradation, abrasion, and soundness, and the estimated amount of
material is more than 2,000,000 tons in the Willamette Valley, or more than 500,000 tons
outside the Willamette Valley;
(b)***
(c)***
(d)Notwithstanding subsections (a) and (b) of this section, except for an
expansion area of an existing site if the operator of the existing site on March 1, 1996,
had an enforceable property interest in the expansion area on that date, an aggregate
site is not significant if the criteria in either paragraphs (A) or (B) of this subsection
apply:
(A) More than 35 percent of the proposed mining area consists of soil
classified as Class I on Natural Resource and Conservation Service
(NRCS) maps on June 11, 2004; or
(B) More than 35 percent of the proposed mining area consists of soil
classified as Class II, or of a combination of Class II and Class I or
Unique soil, on NRCS maps available on June 11, 2004, unless the
average thickness of the aggregate layer within the mining area exceeds:
3. 60 feet in Washington, Multnomah, Marion, Columbia, and Lane counties;
(a) A representative set of samples of aggregate material in the deposit on
the site meets applicable Oregon Department of Transportation (ODOT)
specifications for base rock for air degradation, abrasion, and soundness,
and the estimated amount of material is more than 2,000,000 tons in the
Willamette Valley, or more than 500,000 tons outside the Willamette Valley;
The applicant submitted evidence and argument to address compliance with OAR 660-023-0180
(3), subsections (a) and (d)(B). These findings evaluate the sufficiency of that evidence and
argument. The record contains expert geologic testimony on both sides of these issues. The
applicant’s analysis was provided by EGR and Associates (EGR). State rules for testing refer to
the American Society for Testing and Materials (ASTM) and American Association of State
Highway and Transportation Officials (AASHTO) manuals. The AASHTO-ASTM Standard
Practice for Sampling Aggregates language describes the sampling protocol for roadside or bank
run sand and gravel deposits under Appendix D75, section X2.3.2.
The applicant’s analysis was reviewed by Mark H. Reed, Ph.D., Mineral Resource Geologist and
Department Head of the Department of Geological Sciences, University of Oregon, who
provided testimony to the contrary. Dr. Reed received his Masters of Science degree (1974) and
doctorate degree (1977) from the University of California at Berkeley. In addition to 23 years as
an Assistant and Associate professor at the University, his postgraduate employment includes
three years (1977-1979) as a full time geologist for the Anaconda Copper Company, Butte
Montana. His experiences with the mining company included drilling, sampling, surveying,
assaying, and geophysical logging. Dr. Reed has a long list of professional affiliations, short
courses, publications, and abstracts, and has provided written testimony in over 15 cases. The
Eugene City Council finds Dr. Reed to be a credible witness.
The report of applicant’s geologic consultant EGR (Exhibit 1,Original Delta application,
including Exhibit E from EGR: Evaluation of Aggregate Resources: Delta Sand and Gravel
Expansion Area, Section 2.3), states that more than 35% of the proposed mining area consists of
Class II soils. The Council agrees with the specific part of EGR’s report that characterizes the
type of agricultural soils present on the proposed site. The Council hereby finds that more than
35% of the proposed mining area consists of Class II soils. Thus, the requirement of OAR 660-
023-0180(3)(d)(B)(i) applies to this application and requires that the average thickness of the
aggregate layer exceed 60 feet.
As is explained in more detail below, the Council finds that the applicant has failed to meet its
burden of establishing that there is an aggregate layer with an average thickness of 60 feet that is
comprised of aggregate meeting the applicable Oregon Department of Transportation (ODOT)
specifications for base rock.
The Council also finds that EGR’s Exhibit 1,Original Delta application, including Exhibit E
from EGR: Evaluation of Aggregate Resources: Delta Sand and Gravel Expansion Area (e.g. p.
5- 8 and 11-13, Figures 7, 8, and 9), Appendix E well logs and table, and related materials,
establish that there are two contiguous, but distinct, layers of sand and gravel, in the expansion
area. These layers consist of an upper layer (“younger alluvium”) and a lower layer (“older
alluvium”). Based on that information, however, we also find that neither of these individual
layers is 60 feet thick.
For the reasons stated herein, the Council finds that the applicant has failed to provide a
“representative set of samples of aggregate material in the deposit” sufficient to demonstrate the
quality of the aggregate for either layer. Instead, the applicant’s information as to aggregate
quality is based on the use of mixed samples that combine materials from the two distinct
geologic layers before testing the quality of the aggregate. This mixing of aggregate from distinct
layers before testing makes it impossible for the Council to determine that there is a layer of
aggregate of the required quality, and of sufficient thickness, sufficient to satisfy the rule.
The conclusion that the aggregate samples described by EGR (Exhibit 1,Original Delta
application, including Exhibit E from EGR: Evaluation of Aggregate Resources: Delta Sand and
Gravel Expansion Area; and
Exhibit 55 – EGR & Associates Inc. rebuttal to M. Reed & M. Kupilas
including original samples and re-sampling of boreholes),
regarding significance of the resource,
and relied upon by the applicant, do not constitute the “representative set of samples of aggregate
material on the site”, as required by subsection (3)(a) of the rule, is based, in part, on the
definitions and principles of representative sampling of sand and gravel and other aggregate
deposits as laid out in the sampling standards of the ASTM (American Society for Testing and
Materials) Designation D75-97 (especially sections 3.1, X2.2.2, and X2.3.2), AASHTO
(American Association of State Highway and Transportation Officials) Standard No.T2 (sections
as for ASTM), and ACE (Army Corps of Engineers) Handbook for Concrete and Cement
Chapter CDR-C 100-75 (especially sections 3.3, 4.1, 4.3, and 5.1), sampling standards as cited in
the written and oral testimony of University of Oregon professor of resource geology Mark Reed
(
Exhibit 33 – Testimony of Concerned Santa Clara Residents on Delta Mining Expansion Proposal;
Exhibit 55 – EGR & Associates Inc. rebuttal to M. Reed & M. Kupilas regarding significance of the
resource,; Exhibit 62 – Response to EGR’s assertion of significance of the resource from M Reed; Exhibit
65 – Rebuttal to applicant from Doug DuPriest, attorney; Exhibit 66 – Applicant’s final rebuttal to
Planning Commissions; Exhibits 262 and 272 – testimony from Mark Reed; and Exhibit 274 –from Doug
This conclusion is further based on the arguments in these exhibits
DuPriest w/attachments).
concerning the application of the ASTM, AASHTO and ACE standards, including Delta’s
departure from these standards by testing: (1) samples composed by mixing material from the
two separate layers of sand and gravel (the upper and the lower layers), and (2) samples that do
not include the full vertical extent of material in each of the separate layers.
The Council has considered oral and written arguments on sampling made by Delta geologic
consultant EGR (including but not limited to
Exhibit 55 – EGR & Associates Inc. rebuttal to M. Reed
& M. Kupilas regarding significance of the resource; and Exhibit 66 – Applicant’s final rebuttal to
). This consideration also includes EGR’s references to subsections of the
Planning Commissions
ASTM, AASHTO and ACE standards that pertain to bulk sampling of material that is already
mined and processed, as opposed to sampling of unprocessed aggregate in the ground. The
Council finds that EGR’s sampling methodology, that mixed two distinct layers of sand and
gravel, and that is based on principles for sampling of processed gravel (instead of unprocessed
aggregate), does not yield “a representative set of samples of aggregate material in the deposit on
the site” as specified by OAR 660-023-0180(3)(a). In reaching this conclusion, the Council
relies, in part, on the analysis contained in the Reed testimony and letters (including but not
limited to
Exhibit 33 – Testimony of Concerned Santa Clara Residents on Delta Mining Expansion
Proposal; Exhibit 62 – Response to EGR’s assertion of significance of the resource from M Reed; Exhibit
65 – Rebuttal to applicant from Doug DuPriest, attorney; Exhibits 262 and 272 – testimony from Mark
) in support of this conclusion.
Reed; and Exhibit 274 –from Doug DuPriest w/attachments
Since the Council finds that the set of samples obtained and tested by the applicant was not
representative of the aggregate material in the deposit, and the applicant has failed to provide
adequate information to otherwise characterize that aggregate material, it is immaterial, for
purposes of this decision, whether the samples collected comply with ODOT’s base rock
specifications.
Some persons speaking in support of this application suggested that, because the applicant has
operated a gravel operation on nearby land for many years, the proposed site somehow meets the
quality and quantity standards in the rule. The Council finds that this position is mistaken, for
several reasons. The applicable rule expressly requires the applicant to demonstrate, by use of
proper sampling and analysis, that the proposed new or expanded site meets specific quality,
quantity and location requirements. Proponent’s suggestion incorrectly assumes what the rule
requires be proved. Past operation of an aggregate business on nearby land is not equivalent to,
or a substitute for, the required testing and demonstration. OAR 660-023-0180(3) requires testing
of the proposed new or expanded site; the quality, quantity and location of aggregate on a nearby
property is not at issue. This contention regarding prior, nearby aggregate use also appears to
mistakenly assume or imply that the nature and extent of aggregate material from the old pit
meets current standards. In addition to being irrelevant, such evidence is absent from the record.
The purpose of these OAR aggregate standards is to ensure that an adequate depth and volume of
high quality aggregate is present in a potential new or expanded site before it is converted from
high quality agricultural land to aggregate use. Here, the applicant’s sampling methodology was
based, in part, on methodology appropriate for testing processed, instead of unprocessed,
aggregate. The applicant failed to provide samples of the full vertical extent of the aggregate
layers. The applicant has failed to provide a representative set of samples of each layer. By
mixing of material from distinct layers prior to testing, it is impossible to know the composition
of the individual layers of aggregate. Without knowing the composition of the individual layers,
and without a representative set of samples, it is not possible to determine whether the aggregate
deposit meets the standards of OAR 660-023-0180(3). For these reasons, the Council concludes
that the applicant has failed to demonstrate compliance with the requirements of OAR 660-023-
0180(3).
The estimated quantity of the resource must exceed 2 million tons to satisfy this aspect of the
criterion, since the site is located in the Willamette Valley. The applicant’s report concludes that
there is over 6 million tons of material, and possibly more than 9 million tons of material, present
beneath the expansion site, an amount well in excess of the 2 million ton requirement.
DOGAMI, while acknowledging that resource evaluation is not typically part of the function of
the Mined Lands Regulation and Reclamation Division, estimates the resource to be over 15
million tons on the 53 acre site. DOGAMI based their estimate on EGR’s assumed aggregate
resource depth of 82 feet, not the 51.5 foot depth observed by DOGAMI on the site. DOGAMI
estimates did not subtract silt and clay occurrences, which, DOGAMI writes, may not represent
separate layers and may be treated as internal waste in the production phase. By not subtracting
the silt and clay occurrences, the Council concludes that the applicant has failed to demonstrate
compliance with the requirements of OAR 660-023-0180(3)(a). (
Exhibit 144 – DOGAMI geologist
review of onsite aggregate deposit)
(b) The material meets local government standards establishing a lower threshold for
significance than subsection (a) of this section; or
Neither the City nor the County has established a lower threshold for significance. Therefore,
this section does not apply.
(c) The aggregate site was on an inventory of significant aggregate sites in an
acknowledged plan on September 1, 1996.
The expansion area was not on an inventory of significant aggregate sites on September 1, 1996.
Therefore, this section does not apply.
(d) Notwithstanding subsections (a) and (b) of this section, except for an expansion
area of an existing site if the operator of the existing site on March 1, 1996, had an
enforceable property interest in the expansion area on that date, an aggregate site is
not significant if the criteria in either paragraphs (A) or (B) of this subsection apply:
Because the City Council has found that the application does not satisfy sections (a) or (b),
findings under section (d) are superfluous. Nonetheless, to provide a complete evaluation of the
application, the City provides the finding that the applicant has not shown that the operator of the
existing site (Delta Property Company/Delta Sand and Gravel Company) did not have an
enforceable property interest in the expansion area on March 1, 1996. See Exhibit 1, original
Delta application dated August 12, 2005.
(A) More than 35 percent of the proposed mining area consists of soil classified
as Class I on Natural Resource and Conservation Service (NRCS) maps on
June 11, 2004; or
The proposed mining area does not include any Class I soil. See Exhibit 1, original Delta
application page 11, and including Exhibit E, EGR document dated June 2005, Evaluation of
Aggregate Resources: Delta Sand and Gravel Expansion Area.
(B) More than 35 percent of the proposed mining area consists of soil classified as Class II, or
of a combination of Class II and Class I or Unique soil, on NRCS maps available on June 11,
2004, unless the average thickness of the aggregate layer within the mining area exceeds . . .
60 feet in . . . Lane count[y].
The applicant’s report shows that more than 35 percent of the proposed expansion mining area
consists of Class II soils. See Exhibit 1, original Delta application page 11, and Figure 6 in
Exhibit E, EGR document dated June 2005: Evaluation of Aggregate Resources: Delta Sand and
Gravel Expansion Area.
The EGR report estimates that the average thickness of the aggregate layer in that area is 70.5
feet; however, DOGAMI evaluation observed only 51.5 feet depth (see Exhibit 144). The
Council also finds that EGR’s Exhibit A (e.g. p. 5- 8 and 11-13, Figures 7, 8, and 9, Appendix E
well logs and table), and related materials, establish that there are two contiguous, but distinct,
layers of sand and gravel, in the expansion area. These layers consist of an upper layer (“younger
alluvium”) and a lower layer (“older alluvium”). The EGR report also acknowledges that layers
of mudflow/clay from 4 to 12 fee thick have been experienced on the existing excavation site and
are encountered along the pit wall (see also in Exhibit 1, EGR’s Exhibit A (e.g. p. 5- 8 and 11-
13, Figures 7, 8, and 9, and Boring Log of pit wall) and Exhibit 216). Based on that information,
we also find that neither of these individual layers of aggregate is 60 feet thick. Therefore, OAR
660-023-180(3)(d)(B) applies.
In summary, even if the proposed expansion site satisfied the significance criteria of OAR 660-
023-180(3)(a), because section (3)(d)(B) applies to the site, the site would not be significant.
Step 3 Determine if conflicts from mining can be minimized
OAR 660-023-180(5) -- For significant mineral and aggregate sites, local governments shall
decide whether mining is permitted. For a PAPA application involving an aggregate site
determined to be significant under section (3) of this rule, the process for this decision is set
out in subsections (a) through (g) of this section.
Because the City Council has found that the proposed expansion site is not a significant
aggregate site under OAR 660-023-180(3), findings under -180(5) are superfluous. Nonetheless,
the City provides the following findings to provide a complete evaluation of the application.
(a) The local government shall determine an impact area for the purpose of identifying
conflicts with proposed mining and processing activities. The impact area shall be
large enough to include uses listed in subsection (b) of this section and shall be limited
to 1,500 feet from the boundaries of the mining area, except where factual information
indicates significant potential conflicts beyond this distance. For a proposed expansion
of an existing aggregate site, the impact area shall be measured from the perimeter of
the proposed expansion area rather than the boundaries of the existing aggregate site
and shall not include the existing aggregate site.
The definition of “mining area” restricts the review of impacts to 1,500 feet from the boundary
of the area where mining is proposed to occur, unless factual information indicates that a
significant potential conflict from mining could occur with existing and approved uses beyond
that distance. We find that no credible factual information existing in the record to indicate or
demonstrate that analysis of a larger impact area is required for the proposed mining activity.
The applicant has analyzed all potential conflicts with mining of aggregate material on the
expansion area within an impact area extending 1,500 feet from the perimeter of the proposed
expansion area. The land uses of that impact area and the potential conflicts, with identified
mitigation measures, are discussed in the following sections.
The applicant has analyzed the potential conflicts with in an impact area extending 1500 feet
from the perimeter of the proposed expansion area. The City and County Planning Commissions
deliberated and considered whether or not the impact area extended beyond the 1500’ minimum
as they considered each conflict ‘type’. Both Planning Commissions found that none of the
conflicts extend beyond the 1500 ft. minimum impact area as measured from the perimeter of the
proposed expansion site.
The City Council agrees that the 1500 foot distance is sufficient to include the uses listed in -
180(5)(b).
(b) The local government shall determine existing or approved land uses within the
impact area that will be adversely affected by proposed mining operations and shall
specify the predicted conflicts. For purposes of this section, "approved land uses" are
dwellings allowed by a residential zone on existing platted lots and other uses for which
conditional or final approvals have been granted by the local government. For
determination of conflicts from proposed mining of a significant aggregate site, the
local government shall limit its consideration to the following:
Uses on land surrounding the proposed expansion area, and within the impact area, consist of
residential, agricultural and industrial uses. Residences are located south, west and north of the
proposed expansion area. The nearest residence (at the southern terminus of Admiral Street) is
located approximately 40 feet north of the boundary of the proposed expansion property.
Residential subdivisions at urban densities are approved and the dwellings are under construction
due west of the expansion site, inside the Eugene Urban Growth Boundary. The Urban Growth
Boundary is located in the stream/wetland that is the western border of the proposed expansion
site. A subdivision application for additional homes located immediately west of the expansion
site (Silver Meadows Second addition) is pending. A 15.4 acre vacant property owned by
Eugene School District 4J is located immediately north of the proposed expansion site. A single
agricultural field containing nursery tree stock is located within the impact area, northeast of the
proposed expansion area. The existing Delta Sand and Gravel Company facility is located
directly east of the proposed expansion area and the Eugene Sand and Gravel facility is located
further east across the Willamette River from the Delta Sand and Gravel Company property.
(A) Conflicts due to noise, dust, or other discharges with regard to those
existing and approved uses and associated activities (e.g., houses and schools)
that are sensitive to such discharges;
The applicant has identified the potential conflicts from the proposed mining of the subject
property due to noise, dust and other discharges associated with mining and processing activities
in the proposed expansion area. Those conflicts are as follows:
Noise
:
The applicant retained Daly-Standlee, Oregon registered engineers, to prepare a noise study for
the proposed expansion area. That study, titled “Report On Noise Study for Delta Sand &
Gravel New Mining Area”, dated June 14, 2005, is attached to the application. The report
concludes that certain areas within the impact area could be subjected to mining activity noise
above the limit allowed by the Oregon Department of Environmental Quality (DEQ) for a “new
noise source” on a “previously unused site.” (See Exhibits 1 (Exhibit F) as updated on
November 14-15, 2005 to expand Zone 4; Exhibits 33, part (e), and 37 by Arthur Noxon;
Exhibit 52 by Charles Oppenheimer; Exhibits 58 and 60, Daly-Standlee; and Exhibit 59, peer
review by John Hector; Exhibit 270, from DSA responding to Noxon testimony.) The testimony
of Arthur Noxon contests the applicant’s conclusions.
Dust and Engine Emissions
The applicant retained Bridgewater to prepare an evaluation of air quality issues associated with
the proposed expansion area. That evaluation, titled “Air Quality Evaluation”, dated June 1,
2005, is attached to the application (Exhibit 1). The evaluation concludes that aggregate mining
and processing activities could generate dust and potentially create a nuisance condition for the
nearby residences due to unusual or annoying amounts of dust present in the ambient air.
Other “discharges” under the administrative rule could be defined to include air emissions from
diesel engines. However, the Bridgewater evaluation concludes that, due to the small quantity
of onsite excavation equipment and haul trucks, and the distant location of the equipment to one
another and the proposed expansion area boundary, no conflict due to diesel exhaust will result
from mining and processing activities associated with the proposed expansion area. (see Exhibit
1, Exhibit G, and Exhibit 56, Bridgewater)
Substantial testimony was also received to address concerns about the health effects of fine
particulate matter. (See Exhibits 33, Concerned Santa Clara Citizens, including reports by
Camille Marie Sears and Stephen Kimberley, MD.; Exhibit 51, Lane Regional Air Pollution
Agency; Exhibit 53, Dick Ruth; Exhibit 61, peer review; Exhibit 63, Knepler; Exhibit 223, SAIF;
Exhibit 224, Sarah Hendrickson, MD; and Exhibits 263 and 263a, S. Kimberley, MD.) Letters
from area residents indicate existing dust conflicts and lack of adequate enforcement by the lane
regional Air Pollution Agency (LRAPA). See example Exhibits 63 (Knepler) and 65 (DuPriest).
Flooding
Testimony in the record suggests that the proposed “aquaclude” will result in increased flooding
on adjacent residential lands. The applicant retained EGR to prepare an evaluation of flood
impacts associated with the proposed expansion area. That evaluation, titled “Evaluation of
Potential Flood Impacts: Delta Sand and Gravel Expansion Area”, dated June 6, 2005, (Exhibit
1, Exhibit H). The evaluation concluded that the method of mining the proposed expansion area
will not result in a potential to impede flood flow, to reduce flood storage volume within the
flood plain or to increase the velocity of water flowing across the site. The report concludes that
the method of mining completely avoids any potential adverse flood impacts associated with
mining activities on the proposed expansion area and, therefore, that no conflicts associated with
flooding will result from mining and processing activities on the proposed expansion area.
Groundwater
The applicant retained EGR to prepare an evaluation of groundwater impacts associated with the
proposed expansion area. That evaluation, titled “Digital Model of Existing Excavation Site and
New Expansion Area”, dated June 2005, is attached to the application. The evaluation
concluded that the proposed expansion of excavation (of the expansion area) could have an effect
on groundwater resources in the immediate vicinity of the excavation. As accumulated water
(rainwater and groundwater flowing into the excavations) is pumped from the excavations, the
groundwater table could be lowered radially outward from the excavation edge. EGR noted that
expansion of excavation in the area will not significantly affect municipal water supply system
users in the area and that only one known significant groundwater user still exists in the vicinity
of excavation site. The report concludes that that user is the plant nursery immediately to the
north of the site that has already experienced most of the impact it will experience from present
or expanded excavation. The evaluation concluded that mitigation may be required if other
significant groundwater users exist in the vicinity of the excavation.
Both Planning Commissions found there were conflicts with dust, noise, groundwater, wetlands
and sensitive habitat, and agriculture. The Lane County Planning Commission additionally
identified a conflict with flooding. The Eugene City Council finds that there are predicted
discharge conflicts due to dust, noise, groundwater and flooding.
(B) Potential conflicts to local roads used for access and egress to the mining
site within one mile of the entrance to the mining site unless a greater distance
is necessary in order to include the intersection with the nearest arterial
identified in the local transportation plan. Conflicts shall be determined based
on clear and objective standards regarding sight distances, road capacity, cross
section elements, horizontal and vertical alignment, and similar items in the
transportation plan and implementing ordinances. Such standards for trucks
associated with the mining operation shall be equivalent to standards for other
trucks of equivalent size, weight, and capacity that haul other materials;
The primary road used for access and egress to the expansion area is Division Avenue,
designated a Major Collector by the Eugene Arterial & Collector Street plan 1999. Division
Avenue intersects with the nearest Major Arterial, Beltline approximately 200 feet easterly of the
driveway. This is within one mile from the entrance. The record shows that the local roads used
for direct access to or from the site are River Avenue, Division Avenue (two entrances), Beaver
Street and Beaver-Hunsaker. Exhibits 28, 49. Numerous participants raised concerns about the
impacts of current and continued traffic to and from the site, using these local roads. See, e.g.
Exhibit 3, 7, 14, 16, 20, 21, 22, 23, 27, 275.
The applicant’s materials do not include a traffic impact assessment. The applicant
asserts that no traffic impact assessment is needed because approval of the application
would result in the Metro Plan diagram designation of the subject property being changed
from one resource designation (“Agriculture”) to another (“Sand and Gravel”). The
applicant further asserts that “approval of the application will not result in any additional
traffic on any local roads and, consequently, will not significantly affect any
transportation facility.” Application, 8, 14-15. However, the applicant does not provide
sufficient data documenting its current traffic impacts. This was pointed out by the
City’s Senior Transportation Analyst. Exhibit 29. The materials offered by the applicant
in response (traffic totals from 1992, extrapolated for 2005) are insufficient. Exhibit 28.
There is no way for the City to determine the frequency of the trips, which roads are
being used, the timing in comparison to peak hour traffic on the effected roads, etc.
Without such information, the City cannot make any determinations as to road capacity,
for example, as required by OAR 660-023-180(5)(b)(B).
The applicant’s representatives testified before the Planning Commissions that the
economy and demand controlled what could be sold, that production had been increasing
by approximately one percent per year, and that traffic on Hunsaker Lane would be the
result of the projects that Delta was involved in. Avon Lee Babbs and George Staples,
Planning Commission minutes January 17, 2006, pages 6, 7. If levels of use increase in
the new excavation area because demand increases, then traffic will increase. This
potential increase in traffic was not analyzed by the applicant.
Without more detailed data establishing the site’s current traffic impacts or future
demand for the excavated product, the assertion that the site will continue to have its
current level of impact has little meaning. It provides no way for the City to assess the
potential conflicts pursuant to OAR 660-023-180(5)(b)(B). Numerous participants raised
concerns about current and continued conflicts with traffic to and from the site. See, e.g.
Exhibit 3, 7, 14, 16, 20, 21, 22, 23, 27, 275. In light of such testimony, the City finds that
the applicant’s response to this approval criterion is an insufficient basis on which to
determine if the criterion is met. As such, if the site were a significant resource, the
application would fail based on this criterion.
(C) Safety conflicts with existing public airports due to bird attractants, i.e.,
open water impoundments as specified under OAR Chapter 660, Division 013;
The Eugene Airport is the only existing public airport in the general metropolitan area and is
located several miles from the proposed expansion area and outside the impact area. Due to that
distance separating the airport from the proposed expansion area, we find that any bird attraction
by open water impoundment on the expansion area will be negligible if at all. Furthermore, this
provision is no longer applicable since the December 23, 1996 effective date of adoption of
division 13 of OAR Chapter 660, which carries out Chapter 285, Oregon Laws 1985.
(D) Conflicts with other Goal 5 resource sites within the impact area that are
shown on an acknowledged list of significant resources and for which the
requirements of Goal 5 have been completed at the time the PAPA is initiated;
A meandering scar of the Willamette River (“East Santa Clara Waterway”) is located on a
portion of the northwestern boundary of the expansion area and constitutes a wetland within the
impact area. This waterway was added to the City’s and County’s Goal 5 inventories as a
“Category D” stream, which requires a setback of 20 feet. No other Goal 5 resources shown on a
Metro Plan acknowledged list of significant resources exist within the impact area. Lane County
has authorized a variance that would allow “construction” of the aquaclude inside the DEQ 150-
foot mandatory setback, which would move the area of disturbance nearer this Goal 5 resource. .
The variance is to the DEQ setback, not the locally-adopted Goal 5 setback, and would not allow
any construction activities within the Goal 5 setback. The locally adopted Goal 5 setback along
East Santa Clara Waterway of 20 feet would still be met.
The opponents argue that the existence and operation of the aquaclude (see discussion below
regarding the aquaclude) will negatively impact the water levels and, consequently, the functions
of the wetland. EGR, in testimony provided during the planning commission joint public hearing
and deliberation, testified that the aquaclude would not produce the types of impacts to the
wetland argued by the opponents. EGR and the applicant provided further testimony during the
elected officials’ joint public hearing that the aquaclude would be constructed in a manner that
leaves the top elevation of the clay-filled aquaclude one foot below the measured elevation of the
wetland, approximately six to eight feet below ground surface. EGR testified that, even if the
opponents were correct in their arguments that the aquaclude would negatively impact surface
water that flows through the wetland (which EGR argues they are not), the modification to the
aquaclude construction that positions the aquaclude beneath the measured elevation of the
wetland will ensure that its existence and operation will not negatively impact the wetland.
Based upon the cumulative testimony of EGR we find that approval of the application will not
result in negative impacts on the wetland.
(E) Conflicts with agricultural practices; and
We find that approval of the application will not conflict with current agricultural practices
within the impact area. The only property within the impact area currently committed to
agricultural use is tax lot 900, located on the subject property’s northern boundary. The owner of
tax lot 900 has maintained nursery tree stock on that property for many years without conflict or
negative impact from the nearby Delta Sand and Gravel Company operating facility. The owner
of tax lot 900 testified that he did not believe that Delta’s mining within the expansion area
would have negative effect on or conflict with his agricultural operation. The facility’s existing
excavation pit is immediately south of tax lot 900, well within 1500 feet of the agricultural use of
tax lot 900. Approval of the application will not change the physical relationship of tax lot 900
to the excavation area. Therefore, we find that approval of the applicant will not result in
conflicts with current agricultural practices.
(F) Other conflicts for which consideration is necessary in order to carry out
ordinances that supersede Oregon Department of Geology and Mineral
Industries (DOGAMI) regulations pursuant to ORS 517.780;
No ordinances that supersede DOGAMI regulations, pursuant to ORS 517.780 have been
identified and therefore, no consideration of other conflicts associated with such ordinances is
necessary.
(c) The local government shall determine reasonable and practicable measures that
would minimize the conflicts identified under subsection (b) of this section. To
determine whether proposed measures would minimize conflicts to agricultural
practices, the requirements of ORS 215.296 shall be followed rather than the
requirements of this section. If reasonable and practicable measures are identified to
minimize all identified conflicts, mining shall be allowed at the site and subsection (d)
of this section is not applicable. If identified conflicts cannot be minimized, subsection
(d) of this section applies.
Noise
The applicant’s expert, Daly-Standlee, concluded that, with appropriate noise mitigation
measures, noise generated by future mining operations in the proposed expansion area will
comply with the most demanding interpretation of the DEQ Noise Regulations for Industry and
Commerce at all residential properties around the proposed expansion area.
Daly-Standlee begins its analysis of potential noise impact by stating that certain areas within the
impact area may be subjected to mining activity noise above the limit allowed by the DEQ for a
“new noise source” on a “previously unused site.” DEQ noise limits for a new noise source on a
previously unused site (OAR 340-35-0015(14) and 340-35-0035(1)(b)(B)(i) (Table 8)) are more
restrictive than the noise limits for “existing noise sources” (OAR 340-35-0015(17) and 340-35-
0035(1)(a) (Table 7)). Daly-Standlee states that historically DEQ has ruled that when a mine site
is expanded onto contiguous property, noise criteria which applied to the equipment before
expansion shall also apply to the equipment while in the expansion area. Because aggregate
mining has been occurring on the 474 adjacent acres of Delta Sand and Gravel Company
ownership since 1927, it could be argued that the existing mining operation is an “existing noise
source” and that the expansion area should be subjected to the less stringent existing noise source
criteria under that historic DEQ interpretation. However, it could also be argued that the
proposed expansion area is an “unused site” and that equipment moved to that area should be
considered a “new noise source on a previously unused site.” The city finds that the latter
interpretation is the correct one.
Delta Sand and Gravel Company has elected to address potential noise impacts of a new noise
source on a previously unused site and to subject its future aggregate extractions to the more
restrictive DEQ noise limits for such a noise source. Because Daly-Standlee states that certain
areas within the impact area may be subjected to mining activity noise above the limit allowed
by the DEQ for a new noise source on a previously unused site, this application must
demonstrate that the potential noise impacts can be minimized. OAR 660-023-0180(1)(g)
provides that noise conflicts are considered minimized under the rule when the relevant DEQ
noise regulations (OAR 340-035-0035) are met.
Daly-Standlee proposes a variety of administrative mitigation measures (as compared to
structural or engineered solutions that do not require constant monitoring), starting with limiting
the first and second lift mining operations to the time period from 7 o’clock AM to 10 o’clock
PM. Daly-Standlee proposes alternative mining procedures at various locations of the proposed
expansion area. Those alternative procedures are provided in Tables 7 and 8 of the noise study.
The study further concludes that if the proposed alternative procedures are followed during the
first and second lifts then no noise mitigation will be required for the third and subsequent lifts.
That statement is based upon the fact that due to the depth of operating equipment below grade
(surface level), the noise barrier effect provided by the face of the excavation combined with the
distance effect will reduce noise to a level in compliance with the DEQ noise restrictions at all
locations within the impact area. Daly-Standlee also recommend restricted use of certain types
of heavy equipment in zones proximate to residential property, and additional noise attenuating
equipmet on some equipment to meet DEQ standards.
Opponents of the application, primarily through testimony of Arthur Noxon, PE, acoustic
engineer, have challenged the Daly-Standlee report on grounds of methodology and conclusions.
(See Exhibits 33e,37, 64, 65, 264, and 278). The city council is compelled by opposition’s
comments pertaining to the following issues:
1. Ambient noise levels in residential areas were not measured from the more sheltered,
quieter private outdoor spaces that may be most impacted by the expanded quarry. Therefore,
ambient noise levels used in the noise analysis were higher than true ambient noise levels in
some residential locations, and truck noise in residential streets not fully measured. Therefore,
noise conflicts were not fully predicted, and minimization of those conflicts is not assured.
2. Impulse noises, such as the banging of dump trucks as they unload, were not measured
by Daly-Standlee. The aquaclude will involve filling of a 30-foot deep trench proximate to
residences, presumably with associated impulse noises, inside the DEQ setback for mining
operations. Therefore, noise conflicts were not fully predicted and minimization of those
conflicts is not assured.
3. Because the expansion site has sensitive receptors, such as residences, on three sides,
it is likely that excavation activities will not always be shielded by the quarry wall during third
and fourth lifts. For instance, the residences on the south side of the expansion site will have a
direct line of sight to excavation occurring along the north property line. Berms will be installed
only temporarily for the aquaclude construction. The Daly-Standlee analysis does not
specifically address whether the distances involved will mitigate the noise impacts. Therefore,
noise conflicts were not fully predicted and minimization of those conflicts is not assured.
4. Most of the proposed mitigation measures depend on administrative oversight, such as
self-monitoring the distances between certain types of equipment and property lines, hours of
operation, frequency of loads, traffic speeds within the expansion area, etc. These are more
difficult to monitor and enforce than structural or mechanical solutions, such as the installation
of berms that can be inspected and measured. There is no programmatic monitoring system
recommended other than DEQ oversight. Therefore, minimization of noise conflicts is not
assured.
Lane County found that the initial construction of the aquaclude, which involves the removal,
stockpiling and return of topsoil and overburden to the trench during the surface digging,
constitutes a construction project that is exempt from DEQ noise level requirements and
enforcement. The City Council disagrees. Installation of the aquaclude involves mining of
aggregate material to a depth of at least 30 feet and sales of most of that material. It is a mining
operation by definitions of OAR 660-023-0180 (Mineral and Aggregate Resources), ORS
215.298 (Mining in exclusive farm use zone), and ORS 517.750 (Non Agricultural lands) and
should not to be compared with the relatively simple surface preparation of a typical construction
site. The noise generated by the excavation and filling of the aquaclude trench is a mining
activity and is therefore not exempt from DEQ noise standards pursuant to OAR 340-035-
0035(5)(g). In any case, noise conflicts associated with aquaclude construction have not been
adequately minimized to meet adopted standards.
Defects in the noise measurements and predictions are cumulative; hence, the total effect of
overestimating ambient noise levels, underestimating new noise from mining activities and
transporting excavated materials through adjacent neighborhoods, and failure to account for all
noise caused by mining to create the aquaclude can result in increases in the perceived noise of
over 15 dBA, a possible violation of DEQ noise regulations.
We find that potential noise conflicts from the proposed mining of the expansion area cannot
been minimized as required by Goal 5.
Dust
The applicant’s expert, Bridgewater, provides evidence that, with the appropriate dust
minimization measures, mining of the proposed expansion area would be compliant with Lane
Regional Air Pollution Agency (LRAPA) airborne particulate matter emission standards and
fugitive dust requirements. We note that, for those types of conflicts addressed by local state or
federal standards, to “minimize a conflict” means to ensure conformance to the applicable
standard (OAR 660-023-0180(1)(g). Lane County’s airshed is protected and regulated by
LRAPA and the applicant currently holds an Air Contaminant Discharge Permit (ACDP) from
LRAPA for its existing mining and processing facility on the adjacent Delta property. That
ACDP requires that the rock crushing facility of the applicant remain in its current location and
also provides a limitation on the amount of rock produced from that facility.
Bridgewater provides the list of proposed dust control measures that includes the requirement
that the expansion area shall be included within the LRAPA ACDP for the existing Delta Sand
and Gravel Company operation, and that the provisions of that ACDP shall be followed by the
applicant on the proposed expansion site. A copy of the ACDP is attached to the application
(Exhibit 1). The ACDP requires that the LRAPA-approved Fugitive Dust Control Program be
followed at the existing company site. The expansion area shall be added to the ACDP and the
Fugitive Dust Control Program shall be implemented on the proposed expansion area. We find
that the activities proposed for the expansion area will become subject to the current LRAPA
ACDP. (See Exhibit 1, Exhibit G)
Bridgewater recommends additional dust control measures and those measures are listed below
in these findings.
Opponents of the application testified that they believe that the applicant cannot minimize dust
conflicts from the proposed mining with nearby residential land uses and believe that the
aggregate extraction process (mining) creates significant conflicting amounts of dust. They cite
past examples of fugitive dust and complaints to LRAPA (Exhibits 63, Knepler, and 65,
DuPriest, as examples).
We find that potential dust conflicts have been demonstrated to result primarily from three
activities associated with mining and processing of aggregate material. Those activities are: 1)
excavation of the site for aggregate material, 2) transport of the excavated material to the
processing facility and 3) the processing facility (rock crushing operations).
We find that the current ACDP includes provisions that regulate the manner in which those
activities occur on the existing Delta facility site but that the applicant has failed to provide
sufficient evidence that these regulations will control production of airborne particulate matter at
a level that meets LRAPA (and Oregon Department of Environmental Quality) standards,
particularly at point of excavation.
Furthermore, we find, based upon testimony provided in the testimony that particulate matter
that may be harmful to nearby residents and other urban uses are not readily visible to the eye,
cannot be effectively regulated based on visual inspection, and may not be visible in videos
submitted as testimony (e.g., Exhibit 267). Testimony indicated that harmful dusts may be
created at the point of excavation; that is, at the areas that will be closest to sensitive receptors
(e.g., residents and future schools). Evidence in the record also showed substantial winds from
the north, northnortheast, eastsoutheast, east, southsoutheast, and south could substantially affect
nearby land uses (for example: Exhibit 33b, Concerned Santa Clara Citizens, including reports
by Camille Marie Sears and Stephen Kimberley, MD, Exhibit 65, DuPriest, and Exhibit 267,
DVD of site conditions).
The applicant provided testimony in the form of a DVD (Exhibit 267) of the current extraction
process on the existing mining site, intended to show that the process of mining does not produce
dust. The DVD showed that the mining of the existing (wet) wall produces virtually no visible
dust; however the amount and location of naturally occurring wetness along the exaction wall
may be modified by the proposed aquaclude. The DVD also showed that the haul roads,
although watered as required by the LRAPA ACDP, were also naturally wet, but that condition
may also change because of the aquaclude. Therefore, the visual display of existing conditions is
not a convincing indicator of future conditions after the aquaclude is installed.
We note that the applicant has testified that the processing facility (the rock crusher and
associated facilities) will remain at its current LRAPA-regulated location and will not produce
finished aggregate material in excess of its current LRAPA ACDP-mandated levels. The
location of the processing facility and its production level is regulated by the ACDP. The
applicant has testified that the location of that facility and its production levels will not change as
a result of approval of this application, yet, in answer to questions at a public hearing, the
applicants also indicated that the production was somewhat flexible and reacted to demand
(Exhibit 1, application, and Exhibit 33b, Concerned Santa Clara Citizens, including reports by
Camille Marie Sears and Stephen Kimberley, MD.; Exhibit 51, Lane Regional Air Pollution
Agency; Exhibit 53, Dick Ruth; Exhibit 61, peer review; Exhibit 63, Knepler; Exhibit 223, SAIF;
Exhibit 224, Sarah Hendrickson, MD; and Exhibit263 and 263a, S. Kimberley, MD).
Questions about LRAPA’s ability to adequately regulate in a consistent and timely manner
(Exhibit 65, DuPriest) and the long term viability of LRAPA were raised during the joint elected
officials’ hearing, (see Nepler, DuPriest, Bettman, and Taylor testimonies at the 12/12/06 joint
public hearing). In case of LRAPA’s dissolution, the Oregon Department of Environmental
Quality (DEQ) would be responsible for enforcing local air quality standards. The Council finds
that conditions of approval dependent on LRAPA’s enforcement are not satisfactory for long
term mitigation of a potentially hazardous source of dust proximate to an urban residential area.
On February 20, 2008 the Lane County Board of Commissioners approved a variance that would
allow construction of berms and an aquaclude within the standard 150 foot setback from property
lines. This variance would allow excavation and dumping of dirt and aggregate materials up to
150 feet closer to existing residences. There is evidence in the record that dust and airborne
pollutants drop off over distance; therefore the variance would worsen the conflict due to dust by
allowing mining/construction activity closer to residents.
Both Planning Commissions found unanimously that there is a conflict due to dust, and that the
conflict due to dust could not be minimized to a level that meets the DEQ emission standards
applied by LRAPA. Neither planning commission conducted further ESEE analysis because
none had been provided by the applicant.
The Eugene Planning Commission voted 3-2 that the conflict could not be minimized, and Lane
County Planning Commission voted 3-2 with one abstention.
We concur, and find that potential dust conflicts from the proposed mining of the expansion area
cannot been minimized as required by Goal 5.
Flooding
EGR has concluded that the Delta Sand and Gravel Company method of mining will create no
obstructions or other physical features that could impede flood flows across the proposed
expansion area or (thereby) cause flooding on neighboring properties. Essentially that
conclusion means that flood flows should not be impeded across the proposed expansion area if
no fill within the floodway occurs. All mining activity proposed for the expansion area will
occur as excavation taking place below existing ground surfaces. Within that mining
methodology overburden will be removed and stockpiled in areas higher in elevation than base
flood elevations and/or stockpiled at locations on company property that are below existing
ground elevations. EGR concludes that the proposed mining methodology on the proposed
expansion area will not impede flood flow, reduce flood storage volume within the flood plain or
increase the velocity of water flowing across the proposed expansion area. EGR further
concludes that the proposed mining methodology completely avoids all potential flood impacts.
Opponents of the application argue that the existence and operation of the aquaclude (see
subsequent discussion and findings regarding the aquaclude) will cause flooding on adjacent
residential lands because groundwater will be prevented by the aquaclude from migrating from
those lands to the mining site during heavy rain events. EGR has addressed that argument and
has demonstrated, in its rebuttal materials provided during the planning commission joint public
hearing and deliberation, that the movement of groundwater is not connected to surface water
that constitutes flooding during such events. Nonetheless, in response to the opponents’
argument, the applicant and EGR have provided a modified aquaclude construction that leaves
the top elevation of the clay-filled aquaclude one foot below the measured elevation of the
wetland that exists on the meandering scar, approximately six to eight feet below ground surface.
While continuing to impede the rate of flow of groundwater from the adjacent property to the
expansion area (and mining pit), the aquaclude would allow the passage of a limited amount of
groundwater from the adjacent property, over the clay material and into the mining area during
heavy rain events. That elevation will also ensure that the aquaclude has no negative impact on
the water level of the wetland at different times during the year. We find that EGR has provided
significant evidence to support it conclusion that the aquaclude will minimize potential conflicts
resulting from the movement of groundwater from adjacent lands to the mining area and that its
existence and operation will not produce flooding on adjacent lands.
The Eugene Planning Commission voted 3-2 that there was not a conflict due to flooding.
We find that approval of the application will not result in flooding conflicts with adjacent land
uses.
Groundwater
EGR recommends that a low permeability barrier, groundwater dam or other flow restriction of
the upper aquifer should be constructed, at the applicant’s expense, as the excavation proceeds to
the west. EGR concludes that the construction of a low permeability barrier could actually result
in lower pumping of water, with significant benefit to the aquifer and area groundwater users.
That low permeability barrier has been termed the “aquaclude” by EGR and the applicant.
EGR recommends that excavation should begin on the east side of the expansion area and that
the aquaclude should proceed ahead of the excavation to the west. Construction of the aquaclude
should occur before excavation comes within 400 feet of its location. The aquaclude should be
at least 12 feet wide at the bottom and slope upward through the upper aquifer from 1:5 to 2:1 to
the original ground surface. The aquaclude should be placed within the setback area to insure its
separation from the excavation proper and to place its outer edge as close as possible to the
surrounding off-site shallow aquifer. EGR also recommends that a buttress of native material be
left between the aquaclude and the excavation area proper.
EGR’s ultimate conclusion is that placement of a low permeability barrier around most of the
excavation should result in restoring groundwater levels around the excavation pit to near pre-
development levels. DOGAMI has provided the applicant with its preliminary concurrence with
EGR’s ultimate conclusion. A copy of correspondence from the agency to the applicant is
included with EGR’s evaluation attached to the application. The correspondence states that
“there may actually be a slight mounding of the ground water in the shallow aquifer within close
proximity to the barrier thus eliminating the possibilities of drawdowns which could impact
supply wells within the area.”
Construction of the aquaclude within the setback area requires an administrative variance
pursuant to Lane Code that Lane County has approved (should the Metro Plan amendments
succeed).
As discussed above in our findings regarding flooding, EGR has provided adequate and
significant evidence that the existence and operation of the aquaclude will not result in flooding
of adjacent lands. The applicant and EGR testified that the trench constructed for the aquaclude
will be filled with clay material excavated from other locations on the applicant’s adjacent
ownership and operation. We find that the proposed clay material for the aquaclude is a natural
soil that will not decompose and will not pollute underground waters.
Both Planning Commissions found unanimously that there was a conflict due to groundwater.
The low permeability barrier (aquaclude) is proposed as mitigation, and the applicant should map
the specific proposed location for the low-permeability barrier. The Eugene Planning
Commission found unanimously that the aquaclude would minimize conflicts with groundwater
to an adequate level. The Lane County Planning Commission voted 4-2 that the aquaclude
would not minimize the conflict with groundwater to an adequate level.
We find that the proposed aquaclude is sufficient mitigation to minimize conflicts.
(ORS 215.296 Standards for approval of certain uses in exclusive
farm use zones. (1) A use allowed under ORS 215.213 (2) or
215.283 (2) may be approved only where the local governing
body or its designee finds that the use will not:
(a) Force a significant change in accepted farm or forest
practices on surrounding lands devoted to farm or forest use; or
(b) Significantly increase the cost of accepted farm or forest
practices on surrounding lands devoted to farm or forest use.)
As stated previously in these findings, the established agricultural use of tax lot 900 and the
established mining operations of the adjacent existing facility have co-existed for many years
without conflict. We find that approval of this application will not change the relationship
between the two adjacent uses and will not result in conflict between the two uses. Accordingly,
approval of this application will have no effect on the farm practices occurring on tax lot 900,
will not change those practices and will not significantly increase the cost of those practices on
tax lot 900. We further find that the historical relationship between the two uses, as testified by
the applicant and the owner of the adjacent agricultural land, coupled with the immediate
location of each to the other, provides a factual basis for the reasonable conclusion that approval
of this application is consistent with ORS 215.296.
Step 4 Weigh the Economic, Social, Environmental and Energy (ESEE)
consequences of unminimized conflicts and determine whether to allow
mining
(only need to do this Step if there are conflicts that are not minimized)
(d) The local government shall determine any significant conflicts identified under the
requirements of subsection (c) of this section that cannot be minimized. Based on these
conflicts only, local government shall determine the ESEE consequences of either
allowing, limiting, or not allowing mining at the site. Local governments shall reach
this decision by weighing these ESEE consequences, with consideration of the
following:
(A) The degree of adverse effect on existing land uses within the impact area;
(B) Reasonable and practicable measures that could be taken to reduce the
identified adverse effects; and
(C) The probable duration of the mining operation and the proposed post-
mining use of the site.
The City Council has already found that the expansion site is not a significant Goal 5 resource.
Even if it were such a resource, significant conflicts caused by noise and dust have not been
minimized. The applicant did not provide an ESEE analysis.
Based on relevant evidence in the record, the City provides the following findings weighing the
economic, social, environmental, and energy (ESEE) consequences of allowing the proposed
mining, particularly as such an allowance would relate to the conflicts created by noise and dust.
As an initial note, the record does not contain any proposal for a limited expansion. The
proposed minimization measures could arguably be considered a limitation on the expansion,
but, as discussed above, those measures are all discussed above and do not adequately minimize
the conflict. The record does not include evidence as to how the expansion could be limited.
This is a very technical feasibility question in the case of the expansion of a mining operation;
the city cannot simply propose its own idea for an alternative smaller expansion area, as the
alternative may be geologically unsound. Without some evidence regarding an alternative
proposal, the City cannot find that a limitation on the expansion could:
- reduce the degree of adverse effect on the existing land uses within the impact area;
- make the proposed minimization more effective to reduce the identified adverse
effects;
- avoid significant adverse effects to the economic viability of the proposed use; or
- change the probable duration of the mining operation or the proposed post-mining use
of the site.
As such, the City’s analysis concentrates on the ESEE consequences of allowing or denying the
proposal.
Allowing proposed expansion
The economic consequences of allowing the proposal are associated with continued
operations of an existing quarry for an estimated 12-15 years; that is, employment of up to 135
persons annually and (based on 2004 figures) payment of over $4,750,000 in wages, plus taxes
and charitable contributions to local endeavors. There is a non-quantified economic benefit to
having a local source of aggregate for local construction and roadway projects due to savings in
transportation costs, shortened delivery time, and less truck traffic on interstate highways and
rural roads.
The social and environmental consequences of allowing the proposal are closely
tied together. In excavating the expansion area, the applicant would be operating (at first
above grade) in areas that lie only about 150’ away from existing homes. Wind data in
Exhibit 33 suggests that 47 percent of the time in drier months, and at other times
throughout the year, prevailing winds will exacerbate dust exposures to existing
residents. Particulate matter can trigger asthma attacks, cause wheezing, coughing, and
respiratory irritation in individuals with sensitive airways. Exposure to relatively low
concentrations of particular matter has been linked with premature death. Those at
greatest risk are the elderly, people with pre-existing respiratory or heart disease, children
and infants (Exhibit 33: “Particulate Matter Air Pollution, May 2003” and “Cal/EPA
Ambient Air Quality Standards for Particulate Matter, June 2005”). Public testimony at
hearings revealed that there are people with sensitive airways and children living in the
area of conflict. As the applicant’s representatives testified, the economy and demand
control production, which had been increasing by approximately one percent per year,
and that will increase traffic on Hunsaker Lane. Avon Lee Babbs and George Staples,
Planning Commission minutes January 17, 2006, pages 6, 7. This potential increase in
traffic was not analyzed by the applicant. Noise levels in residential areas will increase.
The total amount of noise impact is not well quantified, but the evidence suggests that
there will be a significant effect due to decreased distances between the excavation
activities and residences, impulse noises, and inadequate mitigation for excavation not
blocked by the quarry wall. Testimony of Arthur Noxon, PE, acoustic engineer, Exhibits
33e,37, 64, 65, 264, and 278.
Evidence in the record suggests that, by allowing the expansion, there will be a positive
effect on the area’s energy use, as the aggregate used in local construction projects will be close-
by and will not need to be hauled from great distances.
Denying proposed expansion
The consequences of denying the expansion request are essentially the converse of those
that result from allowing it, discussed above. The economic consequences of denying the
proposal are that employment of up to 135 persons annually and (based on 2004 figures)
payment of over $4,750,000 in wages, plus taxes, and charitable contributions to local endeavors
will end in approximately 10 years, when the resource covered by existing permits is expected to
run out . There is a non-quantified economic benefit to having a local source of aggregate for
local construction and roadway projects may suffer an increase in costs due to increased
transportation costs to import aggregate materials, lengthened delivery time, and increased truck
traffic on interstate highways and rural roads. Some of these impacts may be mitigated in the
short term, however, by increased activity by other local quarries. That is, other local quarry
operations may be able to increase production in the short term to help offset the loss from Delta
Sand and Gravel.
As noted above, the social and environmental consequences of allowing the proposal are
closely tied together. Surrounding properties will not experience the increased adverse effects of
dust caused by the shorter distances between the mining operation and residences located in the
area of conflict. There would be less likelihood that people with sensitive airways and children
living in the area of conflict would experience asthma attacks, wheezing, coughing, respiratory
irritation, or premature death. (Exhibit 33: “Particulate Matter Air Pollution, May 2003” and
“Cal/EPA Ambient Air Quality Standards for Particulate Matter, June 2005”). There may not be
a sustained increase in truck traffic, although there could be a new traffic generator allowed on
the site if the quarry were not allowed. Avon Lee Babbs and George Staples, Planning
Commission minutes January 17, 2006, pages 6, 7. Surrounding residents would not be subject
to a sustained increase in noise emanating from the quarry, which would probably result in an
increase in property values to nearby properties in the surrounding residential neighborhoods.
Testimony of Arthur Noxon, PE, acoustic engineer, Exhibits 33e,37, 64, 65, 264, and 278.
With regard to energy, evidence in the record suggests that, if the expansion is not
allowed, there will come a time when the aggregate used in local construction projects will need
to be hauled in from other areas, impacting the use of energy.
Analysis
(A) Degree of adverse effect on the existing land uses within the impact area
The degree of the dust’s adverse effects if the expansion is approved is discussed above. The
effects are significant. The applicant asserts that, even though its operation will be closer to the
existing residential uses, its dust impacts will not worsen. The City does not find this to be a
credible assertion and the applicant does not provide reasonable evidence to support its assertion.
(see discussion above). As discussed above, the minimization measures proposed by the
applicant are insufficient to adequately address those effects. Those previous findings are
incorporated here. Arthur Noxon estimates that noise levels would exceed DEQ standards.
Exhibit 278.
(B) Reasonable and practicable measures that could be taken to reduce the identified
adverse effects
The City’s findings, above, evaluate the effectiveness of the measures the applicant has proposed
to reduce dust creation and increases in noise levels, and the adverse effects of the dust and
noise. As discussed above, those measures are insufficient to minimize the effects. There is no
evidence in the record to suggest that there are other reasonable and practicable measures to
reduce the effects.
(C) The probable duration of the mining operation and the proposed post-mining use
of the site.
The applicant estimates that the expansion site will provide 12-15 years of continued mining.
(Exhibit 1, Application, Page 1). The applicant provided a conceptual reclamation plan to reflect
its proposal to amend its existing reclamation plan, approved by DOGAMI in 1987 and 1995.
See File Record No.1, Original Delta application, Exhibit J. It states that “The mined area will
be filled to pre-excavation levels. No slopes will remain (same as main pit). No future use of
the reclaimed property is specified.
ESEE Conclusion
Considering the relative importance of the mining expansion when compared to the dust and
noise impacts on the existing and approved uses identified in prior findings (impacts that cannot
be minimized), the City concludes the ESEE consequences of allowing mining expansion are so
detrimental to the conflicting uses that mining should not be allowed. The City concludes that
the existing and approved uses, particularly the residential uses (health effects and noise), are of
sufficient importance relative to the proposed mining site expansion that the expansion mining
must not be allowed.
Goal 5 Conclusion. The City finds that, for the reasons stated above the application is
inconsistent with Statewide Planning Goal 5.
Statewide Planning Goal 6
To maintain and improve the quality of the air, water and land
resources of the state.
Goal 6 requires that air, land and water resources of the state be maintained and improved by
assuring that future development, in conjunction with existing development, does not violate
applicable state and federal environmental quality standards, and does not exceed the carrying
capacity of local airsheds, degrade land resources or threaten the availability of such resources.
The State of Oregon, City of Eugene, and Lane County have regulatory measures in place to
regulate existing land use activities, as well as future development on the site.
The Lane Regional Air Pollution Authority (LRAPA) regulates the Lane County airshed and the
industries within it. LRAPA rules and permit requirements regulate the release of particulate
matter into the air. Its permit system for emissions provides the regulatory measures that
maintain the carrying capacity and quality of the airshed consistent with applicable state and
federal environmental quality standards. An Air Contaminant Discharge Permit (ACDP) is
required for the aggregate processing equipment and mining activities on the subject property.
Delta Sand & Gravel currently operates its existing, adjacent facility under an ACDP issued by
LRAPA (Permit No. 20119) that permits and regulates dust emissions generated by (1)
processing equipment; (2) storage piles; (3) roadways; and (4) yard activities. In addition to the
specific standards for particulate matter emissions that apply to the process operations, the
ACDP includes a requirement to follow the LRAPA-approved Fugitive Dust Control Program
for the existing facility. If Delta Sand & Gravel were to expand its operations onto the proposed
expansion site, the applicants proposed to implement the Fugitive Dust Control Program on the
expansion area to assure that its operations continue to comply with applicable state and federal
air standards. There was substantial evidence in the record that indicated that the fine particulate
matter (dust) would not be mitigated to a level of insignificance because of the proximity of
homes and school site to the proposed expansion area. The applicants did not provide an
Economic, Social, Environmental and Energy(ESEE) analysis. The City of Eugene found that
the application could not be approved pursuant to Goal 5 and the rules that implement Goal 5
(see Goal 5 findings for additional information).
We note that the applicant has testified that the processing facility (the rock crusher and
associated facilities) will remain at its current LRAPA-regulated location and will not produce
finished aggregate material in excess of its current LRAPA ACDP-mandated levels. The
location of the processing facility and its production level is regulated by the ACDP. The
applicant has testified that the location of that facility and its production levels will not change as
a result of approval of this application, yet, in answer to questions at a public hearing, the
applicants also indicated that the production was somewhat flexible and reacted to demand
(Exhibit 1). Further, the crushing facility is not the sole source of dust from the site. Significant
levels of dust result from on-site hauling. See Exhibit 218, attachment A. See also Exhibit 33b,
Concerned Santa Clara Citizens, including reports by Camille Marie Sears and Stephen
Kimberley, MD.; Exhibit 51, Lane Regional Air Pollution Agency; Exhibit 53, Dick Ruth;
Exhibit 61, peer review; Exhibit 63, Knepler; Exhibit 223, SAIF; Exhibit 224, Sarah
Hendrickson, MD; and Exhibit263 and 263a, S. Kimberley, MD. The City finds that the
evidence presented by the applicant was insufficient to overcome that presented by opponents.
Questions about LRAPA’s ability to adequately regulate and the long term viability of LRAPA
were raised during the joint elected officials’ hearing, because there have been regular, long-
standing discussions about the agency’s on-going existence (see Nepler, DuPriest, Bettman, and
Taylor testimonies at the 12/12/06 joint public hearing). In the case of LRAPA’s dissolution, the
Oregon Department of Environmental Quality (DEQ) would be responsible for enforcing local
air quality standards. The Council finds that conditions of approval dependent on LRAPA’s
enforcement are not satisfactory for long term mitigation of a potentially hazardous source of
dust proximate to an urban residential area.
Both of the Planning Commissions found unanimously that there is a conflict due to dust, and
that the conflict due to dust could not be minimized to a level that meets the DEQ emission
standards applied by LRAPA. Neither planning commission conducted further ESEE analysis
because none had been provided by the applicant.
Eugene Planning Commission voted 3-2 that the conflict could not be minimized, and Lane
County Planning Commission voted 3-2 with one abstention.
For reasons explained in more detail under Goal 5 findings, we find that potential dust conflicts
from the proposed mining of the expansion area have not been minimized and, therefore, this
application is not consistent with Goal 6 regarding air quality.
Statewide Planning Goal 7
To protect life and property from natural disasters and hazards.
The proposed expansion area is partially located within an un-numbered A zone of the
Willamette River flood plain as illustrated on the federal Flood Area Insurance Rate Map
(FIRM) (Panel 1126 of 2975, effective June 2, 1999). It is located immediately west of a
Flood Insurance Study (FIS) area that has defined floodways and base flood elevations of the
Willamette River.
Because the floodway for the Willamette River is determined to be substantially east of the
expansion area, the FIS has determined through definition of the floodway that the expansion
area could be completely obstructed without increasing the water-surface elevation of the
100-year flood more than one foot at any point.
All mining activity proposed for the expansion area would occur as excavation taking place
below existing ground surfaces. Overburden would be removed and stockpiled in areas with
elevation higher than base flood elevations or in areas currently below existing ground
elevations. That mining methodology will preclude the need for sound berms or flood
containment berms that could impede flood flows across the expansion area. Berms
associated with the construction of the aquaclude will be temporary in nature and will be
removed by returning the material to the area of the aquaclude as construction occurs or prior
to anticipated heavy rain events.
Therefore, we find that the proposed use of the expansion area would be consistent with the
purpose and intent of Goal 7.
Statewide Planning Goal 8
To satisfy the recreational needs of the citizens of the state.
We find that there has been a legislative determination by the Metro jurisdictions through its
comprehensive planning process, as implemented by the Metro Plan diagram, that the subject
property is not designated for recreational facilities or opportunities. Identified recreational
needs have been provided for on other sites within the Metro urban area. Therefore, we find that
the proposed amendments would be consistent with Goal 8.
Statewide Planning Goal 9
To diversify and improve the economy of the state.
Goal 9 is primarily focused on commercial and industrial development within urban areas.
To the extent that the goal is applicable to the application, we find that both the existing
agricultural use and the proposed use of the expansion area would contribute to the economy
of the Metro area through the employment of persons and by providing the natural resource
for construction, both of which contribute to the economic health of the state of Oregon.
Therefore, we find that approval of the application would be consistent with the intent and
purpose of Goal 9.
Statewide Planning Goal 10
To provide for the housing needs of the citizens of the state.
The primary purpose of Goal 10 is to ensure that sufficient buildable land is available to provide
for a full range of housing needs within the urban area and to avoid creating shortages of
residential land which would artificially restrict market choices in housing type, price range or
location. The subject property has been designated agricultural in the Metro Plan and is not
planned for residential use. There are three dwellings on the property that would be displaced as
a direct consequence of the proposed amendments. We find that the proposed amendments, and
the eventual loss of the three dwellings, would not measurably impact the existing or future
housing stock in the Metro Plan area, nor will they directly result in population growth, increase
the demand for housing beyond previously acknowledged projections, or otherwise conflict with
the purpose and intent of Goal 10.
Statewide Planning Goal 11
To plan and develop a timely, orderly and efficient arrangement
of public facilities and services to serve as a framework for urban
development.
Approval of the application would result in a natural resource use of the expansion area.
Significant levels of public services are not required for that use. Approval of the
application will not result in the need for extension of public facilities and services to the
expansion area beyond those already existing at the current facility.
To the extent that Goal 11 is applicable to this application, we find that approval of the
application will be consistent with the intent and purpose of the goal.
Statewide Planning Goal 12
To provide and encourage a safe, convenient and economic
transportation system.
Goal 12 is implemented through the provisions of the State Transportation Planning Rule (TPR)
(OAR 660, Division 12).
OAR 660-012-0060(1) requires that “Where an amendment to a * * * comprehensive
plan * * * would significantly affect an existing or planned transportation facility, the
local government shall put in place measures as provided in section (2) of this rule to
assure that allowed land uses are consistent with the identified function, capacity, and
performance standards (e.g. level of service, volume to capacity ratio, etc.) of the facility.
A plan or land use regulation amendment significantly affects a transportation facility if
it would:
(a) Change the functional classification of an existing or planned transportation
facility (exclusive of correction of map errors in an adopted plan);
(b) Change standards implementing a functional classification system; or
(c) As measured at the end of the planning period identified in the adopted
transportation system plan:
(A) Allow land uses or levels of development that would result in types or
levels of travel or access that are inconsistent with the functional
classification of an existing or planned transportation facility;
(B) Reduce the performance of an existing or planned transportation
facility below the minimum acceptable performance standard identified in
the TSP or comprehensive plan; or
(C) Worsen the performance of an existing or planned transportation
facility that is otherwise projected to perform below the minimum
acceptable performance standard identified in the TSP or comprehensive
plan. ”
The Eugene-Springfield Metropolitan Area Transportation Plan (TransPlan) provides the
regional policy framework through which the TPR is implemented at the local level. The
TPR states that when land use changes, including amendments to acknowledged
comprehensive plans, significantly affect an existing or planned transportation facility,
the local government must put in place measures to assure that the allowed land uses are
consistent with the function, capacity and performance standards of those transportation
facilities.
Pursuant to OAR 660-012-0060(1), the TPR requires a determination of which
transportation facilities will experience a significant effect as a result of the proposed
plan amendment, and defines what constitutes a significant effect. A plan amendment is
considered to significantly affect a transportation facility if, for example, the amendment
will reduce the performance of the transportation facility below the minimum acceptable
performance standard (often described in terms of Level of Service standards or
volume/capacity ratios). If a local government determines that an amendment would
significantly affect a transportation facility, the local government must put in place
measures to assure that the allowed land uses are consistent with the identified "function,
capacity and performance standards" of the facility ((OAR 660-012-0060(1)). An
example of such a measure is conditioning approval on the construction of a minor street
improvement.
To comply with OAR 660-012-0060, the City must evaluate the proposed plan
amendment relative to criteria used in TPR to determine "significant effect" on local
transportation facilities.
The applicant has simply stated that it does not intend to increase its current traffic
impacts as a result of the site expansion. However, the applicant neither provides data
establishing its current level of use (trip generation, peak hour usage, etc.) or proposes
any legally enforceable guarantee that it will hold itself to that level of use. While the
City agrees that the applicant could show consistency with Goal 12 by providing such a
guarantee, possibly through a condition imposing a trip cap for example, without data
about the facility’s current transportation impacts, the City cannot formulate a condition
to ensure such consistency.
Based on the above discussion, the applicant has not shown consistency with Statewide
Planning Goal 12.
Statewide Planning Goal 13
To conserve energy
We find that the proposed use of the expansion area will provide a continued stable and long-
term source of sand and gravel aggregate material proximate to the Metro area market it serves.
From an energy conservation perspective, an aggregate mining site located within the Metro area
is highly preferable to a supply site located outside the Metro area which requires the
transporting of the material, processed or otherwise, to the Metro area for use. Approval of the
application would result in the establishment of a stable and long-term source of aggregate
material without an increase in energy consumption.
Therefore, we find that approval of the application would be consistent with the intent and
purpose of Goal 13.
Statewide Planning Goal 14
To provide for an orderly and efficient transition from rural to
urban land use.
Only resource use is proposed for the site and no urban facilities or services, other than those
currently provided, are required to support that use.
To the extent that Goal 14 is applicable to this application, we find that approval of the
application would be consistent with its purpose and intent.
Statewide Planning Goal 15
To protect, conserve, enhance and maintain the natural, scenic,
historical, agricultural, economic and recreational qualities of
lands along the Willamette River as the Willamette River
Greenway.
The subject property is not located within the Willamette River Greenway. Accordingly,
Goal 15 is not applicable.
Statewide Planning Goal 16, 17, 18, 19
Estuarine Resources, Coastal Shorelines, Beaches and Dunes, and Ocean Resources)
(
The subject property contains no estuarine resources, shorelines, beaches, dunes, or ocean
resources. Accordingly, Goals 16, 17, 18, and 19 are not applicable.
Adoption of the amendment must not make the Metro Plan
internally inconsistent.
Neither the Eugene Code nor the Metro Plan has been amended to adopt procedures and
requirements consistent with the Goal 5 Rule for the consideration of PAPAs regarding the
designation of significant aggregate sites or specific criteria regarding the consideration of a
PAPA proposing to add a site to the Metro Plan’s acknowledged list of significant aggregate
sites. Therefore, only the provisions of the Goal 5 Rule are directly applicable to Eugene’s
consideration of this application. Metro Plan goals and policies and land use regulations of Lane
County and the City of Eugene are not applicable to this application.
The Land Use Board of Appeals has recently discussed OAR 660-023-0180’s comprehensive
regulatory scheme that is intended to supersede local land use laws and policies. Based on
LUBA’s decision in Eugene Sand and Gravel Inc. v. Lane County, 44 Or LUBA 50, rev’d in
part on other grounds, 189 Or App 21, 74 P3d 1085 (2003), it appears that LUBA believes the
City is prohibited from considering or applying Metro plan policies that go beyond OAR 660-
023-0180 in reviewing this proposal. Since these findings have identified other bases for denial
of the proposal, the City does not address the Metro Plan policies. However, it is not clear to the
City that the Goal 5 rule absolutely prohibits the City from doing so.