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1995-01004-Minutes for Meeting May 18,1994 Recorded 12/1/199495-01004 MINUTES rnl", Continued Public Hearing 04 Cascade Pumice 94 B1'C -Ptl : 12 DESCHUTES COUNTY BOARD OF COMMISSIONERS ',Aply SH;7 May 18, 1994 (couNTY Acting Chair Tom Throop opened the public hearing at 5:45 p.m. Board of County Commissioners in attendance were Nancy Pope Schlangen, Tom Throop, and Barry Slaughter. Also in attendance were Bruce White and Dave Leslie. Acting Chair Throop stated this was the continued public hearing on the appeal of the Hearings Officer's decision on application SP -93- 29 by Cascade Pumice. The application was for a site plan at two surface mining sites which are 355 and 356. Commissioner Throop reported the record was open until this date for written rebuttal. The purpose of the continued hearing this evening was to hear rebuttal testimony on information that was raised on April 20, 1994. Acting Chair Throop asked for disclosure from the Commissioners for any prehearing contact in this matter. All three Commissioners reported having no prehearing contact. Ed Fitch, representing the appellants, requested that he be allowed to do his rebuttal testimony at a later date as he had just received additional information from the applicant. Sharon Smith, for the applicant, apologized for getting the materials in so late. She stated she could understand why the appellant would want to have the opportunity to review it before they responded. She stated the focus of the material submitted was in rebuttal to the material the appellants presented at the last hearing. Sharon Smith reported that Frank Schnitzer, from DOGAMI, had requested the record be kept open for an additional two weeks for written testimony so he could submit some information regarding DOGAMI issues. Dave Leslie reviewed the materials that were submitted since the hearing on April 20, 1994. He had received notebooks from the applicant for the Burden of Proof on the appeal of SP -93-29 and a video tape. He had received a supplemental memorandum in opposition to the site plan application of Cascade Pumice from the appellants. Dave Leslie reviewed the questions that were raised at the last hearing. There were five legal issues that referred to the ordinance criteria and issues related to surface mining in Deschutes County. These issues include the question of whether screening constitutes processing and whether screening operations would need to occur 1/4 mile from surrounding uses. The second issue raised was as to whether setbacks should be measured from KEYPt9 141CROFILMED r t6 0 8199a JA — 195 0 - noise and dust sensitive structures and whether that term'e hes o� the structure to be a building or a property boundary. The third question that was raised regarded whether berms that were needed to mitigate noise impacts could be allowed within the setback described in the ordinance. The fourth question was raised regarding the ESEE and winter closure issues. The fifth question raised was to the absence of a time having been set in the ESEE and whether or not there was authority by the County to revoke the original ESEE determination and impose time limits at this time. Bruce White, Assistant County Counsel, gave the Board a copy of a memo in which he summarized his responses. He also gave the Board a copy of the applicable criteria for their assistance in reviewing the testimony. Bruce White stated the first question was whether screening constituted processing as such that the 1/4 mile setback from processing equipment applies. The staff feels that screening does constitute processing. This does not mean that the applicant is precluded from processing onsite, but that they do have to meet additional criteria in the zoning ordinance. Bruce White stated the second issue was regarding setbacks. The question was whether the mining activity had to be set back 250 feet from the property line or from residential structures on adjoining properties. The staff's conclusion was that the setbacks were not from the property lines but from the dwellings on the adjoining properties. Commissioner Throop asked how Bruce White came to the conclusion that the setback was from the dwelling. Bruce White stated he referred to the definition of noise sensitive use which is in the ordinance. That definition was taken from and modeled after DEQ's noise regulations. DEQ's regulations focus on the structure and not the entire property. Bruce White reported that in 1991 the County adopted an Ordinance 91-038 to amend the noise sensitive use which says that accessory structures such as garages and workshops are not included in the definition of noise sensitive uses. Bruce felt that this was showing that the focus was on the structure and not the entire property. Bruce White stated the third issues dealt with whether or not the berms can be included within the required setbacks. It was staff's conclusions that they may not be included within the required setbacks because they are part of the surface mining activities. Bruce White stated the fourth issue was related to the winter closure issue which was originally include as an ESEE condition. The question was whether the winter closure was based upon the availability or nonavailabilty of water during the winter season. Staff felt that this question was not relevant because that former ESEE condition was taken out and was no longer in the current ESEE. MINUTES PAGE 2 CASCADE PUMICE MAY 18, 1994 N 0137-1599 Therefore it is not a constraint on the site at this point. Bruce White stated the final issue had to do with whether the County could impose a time limit based upon allegations that during the ESEE process it was understood that mining was to occur for a very limited time period at this site. It has been suggested that the County has the authority to revoke that prior zoning designation because misinformation was given to the County during the earlier ESEE process. Staff does not believe the County has the authority to revoke that designation at this time. Bruce felt the Board could not change the criteria while there was an application before them. Dave Leslie reported that he had examined the files for both of the mining sites. The minutes from the Commissioner meetings indicate that the time limit issue was raised. There was discussion and concern about time limits. At those previous hearings Mr. Clark, the prior General Manager of Cascade Pumice, reported mining would continue for a short time frame. There were questions raised as to whether a time limit could be placed. The matter was resolved with a vote to approve the designation for surface mining. Commissioner Throop asked if Dave Leslie would review the discussion the Board had during the decision making proceeding in 1989. Dave Leslie reported he had not listened to the tapes and no indication was given that there was a follow up discussion leading to the decision by the Board that focused on that testimony. Commissioner Throop requested that a transcription of the previous tape (1989) be typed and distributed to the Board. He stated he was interested in the actual Board discussion which led to and framed the decision. Bruce White felt that a transcript could be made for the Board and other interested parties to review. By doing this, it would make it part of the written record. Sharon Smith provided the applicant's rebuttal. She shared an illustration of the area of surface mining. She stated that Site #357 was not part of this site plan application. The sites involved in this site plan application are Site #355 and Site #356. Sharon Smith reported that Dugan Pearsall had been with Cascade Pumice for about three years. In that time he has taken great steps to reclaim areas that were open and he has done reclamation where he had not been required to do so under DOGAMI or Deschutes County ordinance. She felt it was critical to keep in mind that they needed to prove to the Board that in the future Sites 355 and 356 will meet Deschutes County standards in the ordinance. Sharon Smith reported that one of the issues that had come up was that Cascade Pumice did not have an adequate mining plan. She MINUTES PAGE 3 CASCADE PUMICE MAY 18, 1994 U13'7 -16Q0 stated that there was no requirement in the Deschutes County ordinance that requires a "mining plan". The requirement was that they were not to disturb more than 5 acres at any one time and Cascade Pumice plans to do less than that. Sharon Smith stated that another issue that has come up was that they did not have an adequate watering plan. She stated they have provided a watering plan that was modeled after suggestions made by staff. They have provided information that shows they have adequate water. They have two acres of industrial use water from the irrigation district and the capacity to use Avion Water 365 days per year. She felt the most important issue was whether or not they could meet the DEQ ambient air quality standards identified in the ordinance. Sharon Smith reported that a review of the DEQ's files shows that the renewal of the air contaminate discharge permit for Cascade Pumice, which they have had since 1975, has periodic renewals. On the renewals there were no notations of a violation of air quality and there was never any public comment noted. The only complaint in the DEQ file related to dust was in 1977. Cascade Pumice has never received an air quality citation. Kerrie Standlee, Daily, Standlee & Associates, reported his company was never involved in a noise study of the noise that would be generated by the blasting on the Tri -Met tunnel. He shared this information as it was reported at the previous hearing that his company had done the noise study on that particular project which was not correct. Kerrie Standlee reported that he felt the DEQ regulations could be met through analysis of the sources and predicting that the sound from those sources would meet the regulations. He used the same methodology that is used by all acoustical engineers which includes monitoring the equipment that would be used, getting a reference sound level from that equipment at a distance which is not affected by atmospheric conditions, topography or any other attenuating factors. Then by using those reference sound levels in a calculation and taking into account any factors which cause attenuation of the sound, they look at each of the sounds individually and sum the total of what the conditions would be with different operating conditions. They look at what was proposed by the applicant for their mining procedure so that the information supplied is the result of calculations for the operation being proposed. Kerrie Standlee expressed concern over a video/audio tape that had been shown during the first hearing. He stated the transcript indicated that Mr. Harrison requested that the television volume be loud as he was going to illustrate some contradictions to the noise study. MINUTES PAGE 4 CASCADE PUMICE MAY 18, 1994 0137-1601. Kerrie Standlee gave each Commissioner a Larson Davis Model 700 sound level meter which was the meter that was used to monitor the sound after the operation was started. He wanted the Commissioners to use these to see what the sound levels were during the meeting and they could compare that to what the DEQ regulations were. Kerrie Standlee stated that the issue was whether Cascade Pumice could meet the regulation as specified by DEQ. He felt that based on what he had observed, the sound level will be much louder than what they are experiencing from Site 357 at this time. The regulations have nothing to do with whether the sound was audible. It was strictly a level regulation and that was the maximum allowable for any mining site. There was no determination as to what the noise levels would be at the upstairs of homes which would not be screened by the proposed berms. The calculations were made according to the DEQ procedures. The calculations were made 25 feet from the residence and 5 feet above the ground. DEQ requires that sound measurements not be made when the wind is 10 mph or above, therefore they did not calculate what the sound conditions would be during those wind conditions. Commissioner Throop asked Kerrie Standlee what the operational differences were between the old site and the two new sites. Kerrie Standlee stated that if some of the equipment used on the old site is used on the new site, the noise standards could not be met. Commissioner Throop requested that Kerrie Standlee describes what the standards are that have to be met and if he would demonstrate why this operation meets the requirements. Kerrie Standlee stated it would be difficult because the regulations are so complex. Kerrie Standlee reported that the hourly L-50 limit of 55 DBA means the noise radiating from any mining site must be 55 DBA or less for 30 minutes of every 60 minute time period. The hourly L-10 limit of 60 DBA means that during the 30 minutes when noise can be 55 DBA or greater, the noise can be 60 DBA or greater for only 6 minutes. The hourly L-1 limit of 75 DBA means that during the 6 minutes, the sound can be 60 DBA or greater, the sound can be 75 DBA or greater for only 36 seconds. He stated that the equipment noise, if it ran continuously without fluctuating, the noise level would be 55 DBA or less at all times. Commissioner Throop stated that when Kerrie Standlee talked, his voice registered about 55 DBA. Commissioner Throop asked if the sound level he would hear as neighbor to the mining site would be the equivalent to the sound level of Kerrie talking during the meeting. Kerrie Standlee felt that would be level the neighbors would hear the majority of the time. Commissioner Throop asked that if he recorded that sound and then played it back at that level, then that would be the sound that he could expect to hear from his house. Kerrie stated that the level of that sound would be at 55 DBA or less. Kerrie stated that the equipment does not MINUTES PAGE 5 CASCADE PUMICE MAY 18, 1994 010 7-16C2 have just one constant speed that it runs. Every time the equipment stops the level drops and when they start up again, the level comes back up. The worse case would be if they never stopped, but we know that is not going to be the case. Commissioner Throop asked if it was less distracting for a receiver to hear a constant level of sound or is it less distracting for a receiver to hear sound going up and down in varying pitches. Kerrie Standlee felt it was less distracting if it was constant up to a certain level. Once it gets up to a certain level it is going to be distracting. Commissioner Throop asked what the level would be. Kerrie Standlee stated that if someone was subjected to 80 DBA constantly, they would probably not like it. If someone was subjected to 55 DBA constantly and the level ranged up and down between 40 and 55, they might find the 55 DBA more preferable than the fluctuating. Commissioner Slaughter asked if temperature and altitude had anything to do with the sound. Kerrie Standlee reported that temperature itself does not have as much effect on the sound. He stated higher temperatures create wind which creates more turbulence and attenuate sound. The maximum sound propagating conditions occur with lower temperatures, higher humidity, and calm wind conditions. Dave Leslie asked if Mr. Standlee had an opinion as to whether the relocation of the berms would allow the operation to meet the applicable DEQ noise standards and would modifications need to be made to the berms because of the new position. Mr. Standlee felt it would improve the conditions because the berm would be closer to the sound source than was originally assumed. He stated that as the noise barrier gets closer to the noise source it was more effective. Commissioner Slaughter asked if the back-up signal on the equipment could be turned off . Kerrie Standlee stated that there are ways to reduce the noise radiating from those sources, but he felt that they could not be turned off completely. Bruce Snyder, Environmental Scientist, stated what he felt were the applicable air quality rules should be for this operation on sites #355 and #356. He stated there had been some testimony that there were EPA rules that apply directly to this site. He reported that there were no EPA rules that apply directly to this site. The Oregon DEQ administers the EPA rules. He stated that there were many DEQ rules that apply to a variety of air pollution sources. DEQ rewrote and added new sections to its rules. The rule that applied to the Cascade Pumice application was the highest and best practicable treatment rule which is contained in OAR Chapter 340, Division 28. The rule states that the highest and best practicable treatment and control of air contaminant emissions shall in every case be provided so as to maintain overall air quality at the highest possible levels and maintain contaminant concentrations, MINUTES PAGE 6 CASCADE PUMICE MAY 18, 1994 Ulo 7-1603 visibility reduction, odors, soiling, and other factors at the lowest possible levels. The rule also goes on to say that in cases of new sources of contamination, particularly those located in the areas with existing high air quality, the degree of treatment and control provided shall be such that degradation of existing air quality was minimized to the greatest extent possible. He stated section two of the rule states that a source was deemed in compliance with the first part if it was in compliance with all other applicable emission standards and requirements contained in Divisions 20-32 of OAR Chapter 340, which is the air quality rule. Division 20 adopts the state implementation plan which was not applicable to this site. Division 21 talks about special control areas and does not apply to this application. Division 22 addresses gaseous emissions and this project will not be a source of gaseous emissions as defined in that section, therefore this section was not applicable. Division 23 was open burning. This was not an open burning source and that division was not applicable. Division 24 addresses motor vehicle emissions and the requirements for motor vehicle inspections in certain areas of the state and those issues did not address the emissions from heavy duty equipment, off road equipment nor diesel trucks, therefore it was not applicable. Division 25 contains special industrial standards and new source performance standards which is not applicable. Division 26 was field burning which is not applicable. Division 27 talks about air pollution emergencies. The operations at this site are not applicable under the emergencies rules. Division 28 had applicable sections in section 200-520 which deals with the agencies ability to request information from any source to require registration and it was applicable. This application does comply. Section 620-640 deals with operation and maintenance requirements which are applicable. Based on the measures Cascade Pumice will comply with typically achievable technology. Division 28 also included a new section regarding Federal operating permits, Title V permits, which was not applicable. Division 29 deals with Lynn, Benton, Polk and Marion Counties on the west side which are not applicable. Division 30 talks about areas with special requirements which list Medford and La Grande and was not applicable. Division 31 was the ambient air quality standards which were applicable. The site does comply. In DEQ's 1991 renewal of the permit for the crushers noted that the area was in compliance with all applicable air quality standards. Division 32 deals with hazardous air pollutants which was not applicable. The proposed operations in Site #355 and #356 will be conducted in compliance with all the applicable sections of the DEQ rules, therefore they will meet the standard of highest and best practicable treatment. He stated he had reviewed the files for Cascade Pumice for the operating permit for the crushers and any other information in the files at DEQ Headquarters in Portland to see if there was MINUTES PAGE 7 CASCADE PUMICE MAY 18, 1994 01137-1 information there that may not have been in the files located in Bend. He stated the files included the original permit applications, permit review reports, site inspection reports, permit correspondence and annual reports as required by the operating permits for the crushers. The original permit and all subsequent renewals name the crushers as the sources regulated by the permit. The permit covers the crusher at the cinder pit at Tumalo and the one at Deschutes Junction and their associated activities. The permits do include a special condition which requires dust suppression measures such as, but not limited to, watering or paving of heavily traveled roads, and requires operation of air contaminant generating process so that fugitive type dust associated with the operation will be adequately controlled at all times. Prior to 1991 this condition also mentioned oiling of roads as an acceptable dust suppression measure, but with concerns for water pollution control that has been removed. There are emission limits for the crushers and they require that they operate at less than 20% opacity except for three minutes out of any hour. The inspection reports showed no violations and note the lack of problems. In the Portland files there were no complaints noted or listed. The 1991 Review Report stated that the plants are not located in a special control area. The plants are in an area that was in attainment for all pollutants. He stated another thing that he was requested to do was to quantify or estimate what the effects of the operation of these activities on sites #355 and #356 was going to be. EPA has a set of guidelines that they have published and he utilized. The guidelines are found in a document called A Handbook for Fugitive Dust Control at Open Sources which was written in 1988. It provides a series of equations that can be used to try to quantify how effective a watering program might be on a given site or how much dust might be released by truck traffic on roads or by grading activities on these sites. He stated he started with an assumption that he would try to find the watering program that would achieve 95% control of uncontrolled emissions from these primary activities. Once he had done that, he developed an estimate of emissions from each of the activities on the site using equations and methods listed in the handbook. EPA has published a handbook called AP -42 which was a handbook of emission factors. He stated he used that information to develop emission estimates from trucks traveling on the roads and from grading and moving operations associated with the top soil and overburden removal. He reported Century West Engineering went to the site and took samples of the haul road surface materials, of the top soils, and of the overburden materials in sites #355 and #356. He stated he used those samples in his analysis. He stated the reason they did a 200 mesh screen analysis was because the particles that pass the 200 mesh screen are about 75 microns, which was of a size that was near the upper end of particles that you could expect to be carried by reasonably strong winds. He stated the model was run for two MINUTES PAGE 8 CASCADE PUMICE MAY 18, 1994 0137-16C5 conditions. One was an annual condition because there is an annual ambient air quality standards that DEQ has adopted. The other was for a 24 hour standard. For the annual standard he used data from the Redmond Airport. That data was input with the source strength data from the various activities on the site. He took all of the activities together. From those he put together a model output for an annual average concentration. He stated he looked at the receptor along the north boundary of the sites #355 and #356 where the residences were located. DEQ ambient air quality standards are not necessarily standards that are to be used by the agency to access a specific source. Particulate in the air downstream from this site could also include materials which came from upwind or materials that came from site #357. If you were downwind from this site and you took a sample of what was in the air, there would be no way you could tell which of those dust particles came from this site or other dust sources in the area. The models suggest that the site operations will not violate ambient air quality standards of DEQ either on a 24 hour or annual basis and the deposition of the model showed that the DEQ for standard particle fall out would not be violated either. Mr. Snyder stated that he was also asked to review some of the testimony submitted on air quality issues. He stated there was written information provided but he reviewed a few issues with the Board. The methods that were used by the appellants to estimate the potential dust from the site were based on assumptions that were not valid. He stated EPA has spent a lot of money developing the methods for estimating fugitive emissions and they are well accepted. He stated there had been testimony that a watering program would not work at this site. He reported that DOGAMI's publication on pumice in Oregon notes that pumice particles are lighter than water and they will float until the holes in them are filled and the fragments become saturated. He stated this meant to him that you can wet it. The moisture content measured from the pumice mined at this site runs on the order of high 20% or low 30% moisture. The pumice as it was mined was so wet that when it gets to the crusher at Deschutes Junction that DEQ noted that there was water running out of the bottom of the crusher. He stated the issue was whether or not the equipment on site could apply water in the required amounts at the required frequencies. The work that he had done developed a watering plan that states, by month, how often these activities need to receive water in order to maintain this 95% control effectiveness. He stated erosion will not take place until the pumice is exposed and broken up into fine enough particles that it can be moved by the wind. When he visited the site he was looking at the top soil that had been recently placed in the reclamation area and there had been sprinkling done on the top soil. There was a substantial crust on the top soil. He felt that as long as that crust was maintained the material underneath would not be erodible. He MINUTES PAGE 9 CASCADE PUMICE MAY 18, 1994 613117-16006 stated there was a lot of material that was potentially available for erosion at the site. The way to control that potential was to water. He addressed the issue of the screener being stored off site. He stated the very best place to have the screen on the site was down in the slot which was where it stayed until a slot was mined out. It is then moved to the next slot. The reason that the slot was the best place was because that's the place where it would be most shielded from any wind. He stated he was not stating that there would not be any dust. He stated that he was saying that the dust that was generated on sites #355 and #356 would be in compliance with DEQ air quality standards. Bruce White asked what Bruce Snyder felt the applicable ambient air quality standards were. Bruce Snyder stated the applicable ambient air quality standards are those for suspended particulate PM10 which was a subfraction of suspended particulate smaller than 10 microns in size and particle fallout. Commissioner Throop stated he had seen huge plumes of dust in the air as he drove to and from work. He asked Mr. Snyder why would there be technology to deal with the dust problems on site #355 and #356 when they did not have the technology to deal with them on #357. Mr. Snyder stated that when Dugan Pearsall started with Cascade Pumice, site #357 was already broken and Dugan tried to fix it. What was proposed was that they were going to start out right with site #355 and #356. They would minimize the surface area that would be available for wind erosion by minimizing the surface area that would be disturbed at any one time. They would have a very aggressive program for applying soil sealers and treatments to the roads to ensure that this material would not be available for wind erosion. Bruce White stated that Mr. Snyder testified that Cascade Pumice proposal would comply with the applicable standards. Bruce asked if it was necessary to factor in the characteristics of this particular mining operations in reaching that conclusion. Bruce Snyder stated that they characterized the particle size less than 75 microns, measured the area of roads existing and proposed, the size and the surface area of the berms, and the size of the mining slots which was used in his estimate. He stated that because of the persistent southeasterly wind directions and the residences on the north side of the site, he ran the model two different ways. He assumed there were three active slots at one time. One in which overburden removal was taking place, one in which the extraction activity was taking place and one in which reclamation was taking place. The models were ran with the three slots parallel to the north boundary and then ran it with the three slots in a tier MINUTES PAGE 10 CASCADE PUMICE MAY 18, 1994 perpendicular to the boundary. difference in the results. 01����, The model showed little or no Bruce Snyder stated that when the materials are being moved and the surface was dry and soft without a crust was when the wind erosion occurred. Bruce White asked if the slot was not covered with a sealant would it be available for wind erosion. Bruce Snyder stated there would materials on the surface of the slot wall when the slot was first open that would be available to wind erosion. He felt that as soon as those loose particles were removed by the wind, there would be a much lower number of particles available for wind erosion. Ed Fitch asked if the soil sealant was water soluble. Bruce Snyder felt that it was. He stated that the soil seal would still be effective after one rain fall. The effectiveness would decrease over a period of time. Dugan Pearsall submitted testimony and photographs regarding grass that was planted, soil seal being applied, and trucks watering the road to control dust and wind erosion. Dugan stated the manufacturer says that the soil seal would last a year depending on the weather conditions. He stated the dust could not be controlled just with water. He stated the soil seal was expensive. The amount they applied to 3 or 4 acres was about $4,000. Andy Seamans testified regarding the drill samples. He stated the overburden was thickest in the south and gets thinner as you go north. Sharon Smith requested that the Board of County Commissioners visit the site if they had the time. The Board decided they would make a site visit on May 24, 1994, at 9:15 a.m. Acting Chair Throop stated the public hearing would be continued to Tuesday, May 31, 1994, at 5:30 p.m. DATED this 18'1 day of , 1994, by the Board of Commissioners of D schutes (-� ty, Oregon. c' n n n iT: Recording Secr tary hlangen, Chair ' ( `i1M ( vwuuf Tom Throop, Commissioner ,&A,j hl --c/ Barry Il. Slaughter, Commissioner MINUTES PAGE 11 CASCADE PUMICE MAY 18, 1994