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HomeMy WebLinkAboutOrdinance No. 20413 =~=- COUNCIL ORDINANCE NUMBER 20413 COUNCIL BILL NUMBER 4971 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. ADOPTED: JULY 28, 2008 PASSED: 5/2 REJECTED: OPPOSED: Clark, Poling, Pryor, Solomon ABSENT: EFFECTIVE: August 31, 2008, or upon adoption of an identical action by the Lane County Board of Commissioners, whichever date is later. ORDINANCE NO. 20413 AN ORDINANCE DENYING PROPOSAL TO AMEND THE EU(:;ENE- 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 '7 LL day of July, 2008 --) . I, ( I/<..-Ll( full ~ ' Mayor 1. 28th day of July, 2008 ~~ Ordinance Exhibit A to Eugene Ordinance No. 20413 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: Exhibit A to Ordinance 20413 - 1 (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] 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 Exhibit A to Ordinance 20413 - 2 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 "minilnized 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-l O. 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. Exhibit A to Ordinance 20413 - 3 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 subj ect 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 implelnenting 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 Exhibit A to Ordinance 20413 - 4 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 PAP A 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 Exhibit A to Ordinance 20413 - 5 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 660-023-0 180( 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 Exhibit A to Ordinance 20413 - 6 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 pertillent 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 Exhibit A to Ordinance 20413 - 7 site meets allY 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 anyone 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 ofmaterial 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 Exhibit A to Ordinance 20413 - 8 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 ofEGR'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 delnonstrate 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 regarding significance of the resource, including original samples and re-sampling of boreholes), 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 Exhibit A to Ordinance 20413 - 9 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), AASI-ITO (American Association of State Highway and Transportation Officials) Standard No.T2 (sections as for ASTM), and ACE (Army Corps of Engineers) Handbookfor 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 DuPriest w/attachments). This conclusion is further based on the arguments in these exhibits 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 Planning Commissions). This consideration also includes EGR's references to subsections of the 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 Reed; and Exhibit 274 -from Doug DuPriest w/attachments) in support of this conclusion. 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. Exhibit A to Ordinance 20413 - 10 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) o (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 ofsignificant aggregate sites in an acknowledged plan on September 1, 1996. The expansion area was not on an inventory of significant aggregate sites on Septenlber 1, 1996. Therefore, this section does not apply. (d) Notwithstanding subsections (a) and (b) of this section, exceptfor 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. Exhibit A to Ordinance 20413 - 11 (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 combinatioll 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 countfyJ. 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 mud flow/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) anq 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 1,500feetfrom the boundaries of the mining area, except wherefactual 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 Exhibit A to Ordinance 20413 - 12 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; Exhibit A to Ordinance 20413 - 13 The applicant has identified the potential conflicts from the proposed mining of the subj ect 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 Eneine 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 snlall 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, M:D.) Letters from area residents indicate existing dust conflicts and lack of adequate enforcement by the lane regional Air Pollution Agency (LRAP A). See example Exhibits 63 (Knepler) and 65 (DuPriest). Floodine 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. Exhibit A to Ordinance 20413 - 14 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 deternlined 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 Exhibit A to Ordinance 20413 - 15 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 of20 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 Exhibit A to Ordinance 20413 - 16 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 \vetland. 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 sectioll. 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. Exhibit A to Ordinance 20413 - 17 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 COITlpany ownership since 1927, it could be argued that the existing mining operation is an "existing noise source" and that the expansion area should be subj ected 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 660-023-0 180( 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 0' clock AM to 10 0' 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 equip met 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. Exhibit A to Ordinance 20413 - 18 2. Impulse noises, such as the banging of dump trucks as they unload, were not measured by Daly-Standlee. The aquac1ude 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 adj acent 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 ofDEQ 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 (LRAP A) airborne particulate matter emission standards and fugitive dust requirements. We note that, for those types of conflicts addressed by local state or Exhibit A to Ordinance 20413 - 19 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 LRAP A and the applicant currently holds an Air Contaminant Discharge Permit (ACDP) from LRAP A 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 LRAP A 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 LRAP A-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 LRAP A 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 LRAP A (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 LRAP A (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 Exhibit A to Ordinance 20413 - 20 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 LRAP A 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 LRAP A-regulated location and will not produce finished aggregate material in excess of its current LRAP A 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 LRAP A's ability to adequately regulate in a consistent and timely manner (Exhibit 65, DuPriest) and the long term viability ofLRAP A 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 ofLRAPA'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 LRAP A'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 LRAP A. 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. Floodine 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 Exhibit A to Ordinance 20413 - 21 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." Exhibit A to Ordinance 20413 - 22 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 aquac1ude 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 acceptedfarm 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; Exhibit A to Ordinance 20413 - 23 (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 Exhibit A to Ordinance 20413 - 24 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/EP A 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. Exhibit A to Ordinance 20413 - 25 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 1. 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 Exhibit A to Ordinance 20413 - 26 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 (LRAP A) regulates the Lane County airshed and the industries within it. LRAP A 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 LRAP A-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 LRAP A-regulated location and will not produce finished aggregate material in excess of its current LRAP A 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 ofLRAPA 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 ofLRAPA'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 LRAP A'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 Exhibit A to Ordinance 20413 - 27 standards applied by LRAP A. 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. Exhibit A to Ordinance 20413 - 28 Statewide Planning Goal] 0 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 subj ect 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]] 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]2 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 afunctional 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; Exhibit A to Ordinance 20413 - 29 (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 accep~~ble 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 Exhibit A to Ordinance 20413 - 30 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 subj ect 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- Exhibit A to Ordinance 20413 - 31 023-0180 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. 00203056,DOC;1 Exhibit A to Ordinance 20413 - 32