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1989-16204-Minutes for Meeting June 13,1989 Recorded 6/23/19899995 1926 89-16204 PUBLIC HEARING ORDINANCES 89-011, SURFACE MINING Y'= DESCHUTES COUNTY BOARD OF COMMISSIONER June 13, 1989 Commissioner Prante called the public hearing to order at 6:00 p.m. Commissioners in attendance were Dick Maudlin, Lois Bristow Prante and Tom Throop. Also present were George Read, Interim Planning Director and Karen Green, Assistant Legal Counsel. Karen Green stated that there were still a couple of legal issues to be carified regarding the County's authority to be involved in the site-plan process. She had spoken with Susan Brody from the Department of Land Conservation and Development (DLCD) and the Department of Geology and Mineral Industries (DOGAMI) and a meeting was being set up to clarify these issues. George Read said the purpose of the hearing was to review the draft ordinance that would regulate surface mining, excavation, and the surface mining impact zone around the mining sites. He went through the ordinance and pointed out areas of change since the original draft resulting from comments from the public, the surface mining industry, and the Planning Commission. Brent Lake, 2146 NE 4th, Bend, field representative from DLCD, clarified the difference between the Land Conservation and Development Commission (LCDC) and DLCD. He said the Commission was appointed by the Governor to oversee the land use planning program, while the Department of Land Conservation and Development served at the pleasure of the Commission and hired the DLCD Director. So when the DLCD made recommendations, it was not a recommendation from the Commission. He said County would submit its entire package to the Department, which would review it and make a recommendation to the Commission. LCDC would then review the process. He said the new director, Susan Brody, was very interested in having a meeting with the County, and wanted to work with the County as had been done in the past. Karen Green said she felt that having a meeting with just the staff from the County, DOGAMI and DLCD would be the most productive process to reach agreement on the authority issues. Brent Lake commented that one of the DLCD concerns with the Ordinance was they wanted to make sure the County did not zone a site for surface mining and then make it impossible or economically unfeasible, through stringent conditions in the Ordinance, for the site to be mined. He said there had been a number of court cases on that issue and the results were clear. PAGE 1 PUBLIC HEARING: 6/13/89 ~ef.~l?r r~ rr VCt1~i) <l U 0995 19,'7 Dan McCabe, 19425 Klippel Road, Bend, acknowledged the hard work that had been done on the ordinance. He felt the ordinance made it more difficult for a residence to be built near a surface mining site than it was for a surfacing mining site that wanted to be near a residential area. He had lived in New York near a surface mining site and said the blasting was not much of a problem since they were notified of the specific times of the day that blasting would occur. He also said that using different methods of blasting would create a different level of noise. He favored bringing older existing mines up to the new standards. R. L. Coats, Mine Operator in Deschutes County, submitted written comments. He felt that five acres was not adequate for a mine that had to support equipment and stockpiles. He said the crusher alone took an acre and a half to set up. He asked what would happen to the surface mining reserve property. Commissioner Throop pointed out that because of Mr. Coats' suit against Deschutes County, the County had to review each reserve zone and determine whether it should be zoned surface mining or some other zone. Mr. Coats said he felt the ordinance might be so restrictive that areas zoned for surface mining could never be mined. Randy Davis, Geologist, Oregon State Highway Division, Bend, reviewed the points of the attached written testimony that was given to the Board. He commended the staff on the second draft which had addressed most of their concerns. Jim Curl, Bend Aggregate, 63295 Old Deschutes Road, Bend, said he did not feel it would work to have an industrial zone within the surface mining zone for asphalt plants, ready mix plants and cold mix plants. He suggested the following wording as a permitted use, "processing of materials, including crushing, washing, milling, screening, and blending of mineral and aggregate into asphalt or Portland Cement." He said that these plants may be the only reason for mining the site in the first place. He felt it was excessive to require 1/4 mile from dwellings for the storage of equipment, and that an impact area of 1/2 mile was excessive. He didn't feel the language on road improvements for damage done due to the surface mining was workable, but said that contractors would be willing to cooperate to make needed repairs. He felt stockpiles were too large to be screened, and that testing the noise level on the crusher prior to operation was impossible since it might cost $10,000 to move and set up a crusher to test. He said the mines were already required to meet DEQ standards which should be enough. He felt that most of the work that was done during the ESEE analysis was being redone during the site planning process which was unnecessary. Patrick Gislor, 19175 Klippel Rd., Bend, said he asked a friend that was in the mining business if he could live with the Ordinance, and he said he couldn't. He felt DOGAMI should be left in charge of the specifics on surface mining. Commissioner Throop PAGE 2 PUBLIC HEARING: 6/13/89 0995 19;8 pointed out that DOGAMI had only four staff members statewide and probably didn't have the capability of covering all the sites and issues. Mr. Gislor suggested an exception to the Ordinance be made that all costs associated with the compliance of the Ordinance not be over a certain percentage of the value of the resource. He felt the ordinance was filled with language that was left open to interpretation, i.e., reasonable, necessary. He saw no reason for the County Ordinance to cover areas that were already regulated by other state agencies like DEQ, and felt the County should focus on the areas that state agencies did not already cover. Commissioner Throop asked George Read about his conversation with the Oregon Concrete and Aggregate Producers Association (OCAPA) regarding the Ordinance. George said OCAPA felt the County had the authority to regulate the site plans and listed areas (i.e. set backs, location of equipment, screening) that did not overlap with what they perceived as DOGAMI's reclamation authority. OCAPA felt the Ordinance more closely reflected the industry's opinion of what should be adopted. Chuck Allen, 19175 Klippel Rd., Bend, said he thought the draft ordinance was good. He was a pilot and was concerned about the dust that he sees when flying over the sites. He felt that five acres for the sites probably wasn't big enough. Ed Sullivan, 101 SW Main, Portland 97204, attorney representing area homeowners, commended the staff on their work. He said there were two things that would make things easier if mining had to happen around their sites: (1) the ESEE analysis had to be good, and (2) the Ordinance had to be well drafted. He felt the ESEE analysis should show where the areas of difficulty were (i.e. noise, wildlife) while the Ordinance and the site-plan review process should deal with the mechanics of how to deal with the concerns raised in the ESEE process. He said DOGAMI was currently updating its rule which was a good time to make comments about their process. He suggested the following changes to the Ordinance: (1) that standards for noise and dust refer to DEQ regulations instead of stating specifics, (2) that the conflicting use definition in OAR 660-16-005 be used, (3) that crushing, washing be moved to conditional uses, (4) that agreements be kept with the Deed records so that anybody picking up property would know about them, (5) that all use of the word "will" in the ordinance be changed to "shall" which was more binding, (6) that they avoid using unclear phrases such as "to the greatest extent practicable," "to the best possible ability, 11 "adequately maintained," "resolved or minimized," (7) that the mine operator keep a copy of the blasting notice for at least one year so there would be a record of notice being given, (8) that more than "consultation" be done with the Department of Fish and Wildlife, i.e. coordination, and (9) that all conditional uses related to aggregate mining be eliminated from the resource zone. He did not feel that the Ordinance was too restrictive for mining, and that PAGE 3 PUBLIC HEARING: 6/13/89 0995 192;9 batch plants were industrial uses and should not be allowed in the surface mining zone without going through the conditional use process. He did not think that a distinction should be made between governmental operations and private operations. He said that state agencies were too understaffed, underfunded and under- interested to deal with surface mining and, therefore, the County's involvement was necessary. George Read responded to some of the earlier testimony stating that DOGAMI required the screening of stockpiles; that processing, reclamation, storage, and stockpiles were not subject to the five acre limit; and that the conditional uses referred to in the Ordinance related to excavation not surface mining. Karen Green said there would probably be one more public hearing on the Ordinance after the meeting with DOGAMI and DLCD. DESCHUTES COUNTY BOARD OF COMMISSIONERS Lois Br3.st Prante, Chair To Throop, mmissioner Dick Maudlin, Commissioner BOCC:alb PAGE 4 PUBLIC HEARING: 6/13/89 4' 7~ NEIL GOLOSCMMID7 GOVERNOR 9995 1900 Department of Transportation HIGHWAY DIVISION REGION 4 P.O. BOX 5309, BEND, OREGON 97708 In Reply Refer to File NO- George Read, Acting Planning Director Planning Division Community Development Dept. Administration Bldg. 1130 N.W. Harriman Bend, OR 97701 Dear Mr. Read: June 13, 1989 We have read the Second Draft of Ordinance No. 89-011 which amends Zoning Ordinance PL-15. This revision has addressed most of the concerns we expressed with regard to the First Draft either by exempting governmental entities or through exceptions to the stan- dard. We do still have a few concerns with how the current draft will affect the'Oregon State Highway Division's surface mining program in Deschutes County. Please realize that we are not just nitpicking and give our concerns due regard since the sections of the ordinance referenced are either incompatible with our operation or have potential to significantly increase our operating costs. They are as follows: Section 4; 2 - F, Uses Permitted Outright: Does the definition of "processing" in this paragraph include production of paving mixtures, i.e. hot asphaltic concrete, cold mix, cement treated base, and portland cement concrete? If not, we suggest that you include wording in this paragraph which will allow temporary mixing plants on parcels owned or leased by governmental entities. Section 4; 9 - E, Site Plan Application: During site plan application it will be difficu t for the Oregon State Highway Division to provide a noise report on mining and processing equipment. This is because most of our mining and processing is contracted out to the private sector. Consequently, we don't know what equipment will be used until the contract is awarded and the equipment is moved into the source. Section 4; 7 - H of the ordinance appears to cover the noise issue quite comprehensively. Additionally, Section 107.01 of our Standard Specifications for Highway Construction requires that contractors comp with Dept. of Environmental.Quality standards. I am attaching a copy of this section for you to examine, and encourage you to either delete the section which requires a noise report or provide some wording that will allow an exception. 734-1827 (1-88) AN EQUAL OPPORTUNITY EMPLOYER -2- 9995 19"1 Section 4; 11 - F, Approval Criteria: At most of our remote desert material sites water is unavailable and must be hauled great distances. Furthermore, it would be cost prohibitive to drill water wells at these sites since several hundred feet of rock would most likely have to be drilled before a formation containing sufficient quantities of water was encountered. For the most part, screening with additional planted vegetation at these sites is not economically practicable. In the past, we have made use of existing topography and vegetation at these sites to provide visual screening. Reclamation measures have consisted of sloping and benching of pit walls, salvaging and redistribution of soil overburden, and seeding with a dry land seed mixture approved by the Soil Conservation Service and D.O.G.A.M.I. during a season which will take full advantage of available natural moisture thus eliminating the need for additional irrigation. We appreciate the opportunity to review this draft and offer constructive criticism. We know that you and your organization have worked hard to come up with a workable ordinance that will satify Deschutes County's aggregate needs by protecting a dwindling rock resource while concurrently ensuring the County's liveability. u rt r l r (ZV9 K. Da is Encl. Ass't Reg. Geologist cc: Dale Allen ' Dick Nelson Section 107 - Legal Relations and Responsibility to Public Subsection 107.01 Laws to be Observed - The Contractor shall keep ful ly informed of all Federal and State laws, al l local laws, ordinances, and regulations and all orders a od decrees of bodies or tribunals having any jurisdiction or authority, which in any manner affect those engaged employed on the work, or which in any way affect the conduct of the work. He shall at all time regulations, observe and acomp nd decrees; all such laws, ordinances, and shall protect and indemnify the State and its represen- tatives against any claim or liability arisingefrom or based on the violation of any such law, order or decree, whether by the Contractors, histhsersubceontrac- tors, suppliers of materials or services, o of them. by the Contractor, or the employee any in compliance with ORS 279.318, the following is a list of Federal, State and local agencies of which the Highway Divi- sion has knowledge that have enactaordinthe ances or egul a- tions relating to environmental pollution Lion of natural resources that may affect the performance of State Highway Division contracts. ` FEDERAL AGENCIES Agriculture, Department of Forest Service Soil Conservation Service Army , Department of the Corps of Engineers Coast Guard Energy, Department of -Environmental Protection Agency Health and Human Services, Department of Heritage Conservation and Recreation Service Interior, Department of Bureau of Indian Affairs Bureau of Land Management Fish and Wildlife Service Office of Surface Mining, Reclamation and Enforcement Bureau of Reclamation Labor, Department of Occupational Safety and Health Administration Mine Safety and Health Administration 0995 1932 107.02 Transportation, Department of Federal Highway Administration STATE AGENCIES Agriculture, Department of Energy, Department of Environmental Quality, Department of Fish and Wildlife, Department of Forestry, Department of Geology and Mineral Industries, Department of Human Resources, Department of Land Conservation and Development Commission State Lands, Division of State Soil and Water Conservation Commission Water Resources Department LOCAL AGENCIES City Councils County Courts County Commissioners, Boards of Planning Commissions 107.02 Permits, Licenses and Taxes - The Contractor shall procure all permits and licenses, pay all charges, fees and taxes and give all notices necessary and incidental to the due and lawful prosecution of the work except that the State will obtain and pay for the following: (a) All permits required by the Coast Guard for crossing navigable streams. (b) All permits required by the Corps of Engineers for encroachments on navigable streams where such encroachments are called for by the plans for the project. (c) All permits required by the Division of State Lands for removal of materials from or depositing materials in waterways where such work is specifically required by the plans for the project, and any permits required by the Divi- sion of State Lands for operations in any State-controlled source of materials listed in the special provisions. (d) All permits required by the State Department of Geology and Mineral Industries for operations in any State- controlled source of materials or any disposal area listed in the special provisions. (e) All permits required from local agencies for con- struction of buildings where such work is required by the Plans for the project. All vehicles, including trucks, which are subject to licensing in the State shall be licensed in the State of Oregon. The Contractor's attention is directed to ORS 274.530 relating to "lease of stream beds" by Division of State Lands. The Contractor shall comply fully with ORS 477.685 which reads, in part, as follows: 48 1 49 y` f,