Loading...
1997-37281-Minutes for Meeting June 24,1997 Recorded 10/8/19970163-6624 97-37281 � � � MINUTES OF THE —' DESCHUTES COUNTY BOARD OF COMMISSIONERS PUBLIC HEARING - JUNE 24,1997 JUVENILE JUSTICE CENTER, ROOM A r 1128 NW HARRIMAN STREET, BEND, OR 97701 b .,.� I. CALL TO ORDER: Nancy Pope Schlangen called the meeting to order. Commissioners present were Nancy Pope Schlangen, Chair, Linda Swearingen, Commissioner, and Bob Nipper, Commissioner. Legal Counsel staff was represented by Bruce White. Planning staff members present were Dave Leslie, Associate Planner, and Sandy Ringer, Senior Secretary. II. PUBLIC HEARING - CASCADE PUMICE - DAVE LESLIE Commissioner Schlangen opened the hearing by reading a statement prescribed by Legal Counsel. It was noted that the order of the hearing will be as follows: Staff presentation, applicant presentation, proponents presentation, opponents presentation, and rebuttal. It was also noted that there have been no pre -hearing contacts with any of the Commissioners. Dave Leslie then presented his staff report. He noted that staff worked with all parties to set today's hearing. The Board of County Commissioners signed an order limiting this hearing to issues regarding compliance with noise standards (based on the Board decision in April, 1997, Order No. 97-071). He then read 18.52.110, Subsection H, Noise, out of the Code. Dave also noted that the applicant has delivered a letter saying the 120 -day time limit has been extended to August 15, 1997. The applicant filed a transcript of the proceedings before the Hearings Officer as required for an appeal to be perfected. He then referred to some maps on the wall, which illustrate where residences are in relation to the proposed mining site, the applicant's property boundary and proposed mining site. The noise report predicted the noise which would be generated by various equipment operating at the site and made an analysis of what the statistical noise levels would be as measured by the six closest residences. The closest residence is approximately 900 feet from the mining site (Residence #2). Three things relevant to this case: DEQ Standards (OAR 340-35-35), Submittal from applicant which includes a question and answer letter dated June 20`", Revised Noise Study Board of County Commissioners Meeting - 06/24/97 1J,;CR0FILMED Page 1 OCT 1 1997 0163-0625 The neighbors have been represented by Ken Brinich and Greg Hendrix. A letter was submitted from Mr. Brinich, dated June 21, 1997 which includes a summary of an analysis by a noise specialist from Shapiro and Associates, dated May 7, 1997, by a Lawrence Spurgeon. Some concerns which have arisen: • Enforcement Issue - If there are problems with meeting standards, is there a process of submitting complaints. Yes there is a process through Code Enforcement. • Was actual topography considered in the original noise report? Yes. • Are haul trucks required to be modeled? No - these levels are not regulated by DEQ. • Recommended follow-up noise reports during winter months. The Hearings Officer recommended one within 60 days of startup of the operation, the second within 60 days of startup of year two of operation, and a third report to be completed during the winter months (between November and February). Addition concerns from the Hearings Officer: • A front-end loader used to load pumice material into the haul trucks would not always be within a 30 -foot deep trench, and that, in some cases, the pumice is located closer to the surface. The revised report from the applicant indicates that the results show the noise from the front-end loader will not exceed the allowable DEQ Regulations at any receivers (the six closest residences) in proximity to the mining area. The loader will always be located in the trench with noise attenuation provided by the 30 -feet high trench wall. • The scraper or bulldozer will remove top soil and overburden in the mining slot which will be used for excavation purposes. The applicant's engineer states that the scraper or dozer was assumed to be at the existing grade for all of the analyses and not down inside the trench. Where line of site exists between natural grade and two of the residences, no attenuation due to terrain was taken into account. Whether or not the equipment is at today's ground level, or on top of a berm 10-15 ft. high, line of site would occur in either case and was taken into account. Staff believes that this has been addressed adequately in the revised report. There was a letter from the neighbors (written by Ken Brinich) regarding how this site meets the new standards. Mr. Spurgeon on behalf of the opponents has noted that the noise levels from trucks are not included in this study. Two issues have were raised in this letter: I . This application is premature. This issue has been dealt with and the Board considered it prior to the decision to issue the Order referred to earlier. It is not an issue which is a subject of tonight's hearing. 2. The evidence in the record fails to establish compliance with DEQ Noise Regulations. Board of County Commissioners Meeting - 06/24/97 Page 2 0163-0626 The opponents have recommended certain mitigation measures if the Board decides that the applicant has demonstrated compliance with the noise standard or that compliance will be made. Dave also noted that the Hearings Officer's reason for denial was solely because of the Karen Green's opinion that applicant could not meet noise standards. Staff believes that the applicant has met the L-50 noise compliance. The L-50 establishes 55 dba. Shapiro and Associates letter notes that the correct standard was used. A dozer would establish a 55 dba noise level over fairly flat terrain (Mr. Spurgeon's letter). The terrain in this area, between the proposed mining site and Residence #2 is not flat. Mr. Spurgeon goes on to say that the operation of another vehicle would cause the noise level to go above the 55 dba (L-50) level on flat terrain. Staff believes this to be an incorrect conclusion because the terrain is not flat. Mitigation measures which have been proposed are: • Hours of operation would be limited to the daytime and week day. • Opponents have requested additional testing of noise be completed. Staff felt that this was unnecessary as it is already recommended that they complete three additional noise reports. There were no questions of staff. Bruce White noted that there was reference made to this application being made premature. He also noted that this is not an issue to be addressed at all in this hearing. That issue has been waived at this point. Greg Hendrix - had a procedural question about the conditions of approval which were listed in Karen Green's denial. Bruce White noted that they are not an issue in this hearing. He noted that the Board would have some discretion as to the conditions of approval, and these conditions would obviously have to be supported by the record. Sharon Smith, attorney for the application, noted that the applicant is perfectly willing to abide by all of those conditions in Karen Green's decision. Sharon Smith noted that applicant is here to try and convince the Board that they can meet the noise standards. Kerry Stanley and Dave Leslie met with the opponents to discuss the report. She then reviewed Mr. Spurgeon's report Based on 1971 data. Trucks have been modified as to muffling, etc. The terrain is almost a bowl shape. Spurgeon not taking into the account the actual conditions. Mr. Spurgeon's mitigation measures have already been taken care of. Their trucks will not haul after 3:15 p.m. during the winter months November 15th through February 15th. A single work crew was recommended - this will be happening. Board of County Commissioners Meeting - 06/24/97 Page 3 0163-06:'7 Recommendations from Mr. Spurgeon: 1. A single crew 2. Overburden be placed between the operation and the houses. This is also part of the mining plan. 3. Maintain all equipment to minimize noise. Dugan Pearsall, General Manager - Cascade Pumice - noted that they have the option to work week days and Saturdays, but they have not worked a Saturday for about four years. Kerry Stanley - Daly Stanley and Associates. He gave the Board his background information. He noted that Mr. Spurgeon made a statement in his report that concerned Mr. Stanley stated that the noise level cannot exceed 55 dba for 1/2 time. Oregon's laws are written to say that there is a level that can be exceeded for a period of time. He then explained the noise report process. 1. Reference data 2. Have equipment operate at a maximum output to get the worst measurements. 3. Take into account topography, distance, etc. 4. When they do the report, they take the maximum output just to make sure they are as conservative as possible. The levels predicted will probably be closer to the L- 10 criteria even though they measure to the L-50 noise level. He measured individual sources as a constant level. He is predicting a constant level of 55 dba and this is an over -prediction. They assume that all the sources are operating for one full hour at the same time. He then discussed the issue of the front end loader if it is not down in the trench. Discussion continued. He then discussed Table 3 from the report. Bruce White asked Mr. Stanley if he had any answers to Mr. Spurgeon's statements. Mr. Stanley felt Mr. Spurgeon's definition of the L-50 was incorrect. It overstates anything that is actual. Greg Hendrix asked Mr. Stanley what would this applicant have to do in order to violate the DEQ standards. Mr. Stanley noted that he would have to bring in another scraper. You would have to have a meter to measure the noise. Mr. Hendrix then tried to clarify what Mr. Stanley had stated. Scraper was at 54 and the loader was 50. Greg Hendrix noted that the expert (Mr. Spurgeon) had taken topography out of his assumption. It is the applicant's burden of proof to meet, not the opponent's. He also asked that the Commission allow 14 days for the opponents to review the latest report which was just received. He noted that there are several neighbors present tonight who are concerned about the noise near their homes. Board of County Commissioners Meeting - 06/24/97 Page 4 0163-as408 Has the applicant proven to the Board that the application does meet the requirements of DEQ. We've seen that addition of equipment would take this above the DEQ standards. Kim Manning then gave her testimony and noted the situation was that they asked Mr. Spurgeon to do a review of the data that was available at that time. They did not have the financial means to have him do a full process for them. They were unable to go forward and get more details. She noted that it has been very difficult to get any answers from any of the agencies involved. They would like to ask the Board to keep that in mind. Even people from DEQ do not know specifics about some of the regulations. The residents have an open line of sight into the mining area. Reflection of sound off the rim is also a concern. She also referred to the original table 2A which showed residence #5 did hear over 55 dba. There is also concern that Cascade Pumice might sometime sell out to another company who is not as responsible as Cascade Pumice is. DEQ regulations themselves do not ease their concerns. Dr. Kemple noted that he is in residence #2 (950 ft. from the proposed mining site). He was unclear as to the specification of days and hours of operation. Hours 7-6 weekdays, Saturdays 8-5 which will be conditions of approval. All residents are living between Deschutes Readi-Mix and Bend Aggregate and Paving. There is concern about the noise factor from the trucks cruising Johnson Road. He felt this should be a consideration. Ken Koger stated that Mr. Stanley gave a very good presentation. Mr. Spurgeon is also a competent individual. The presentation of his material was not totally accurate this evening. It's going to have to wake them up and be a part of their lives for the foreseeable future. He hoped operating hours could be restricted. They would like to have some mechanism that has a chance of making it agreeable to the residents. Bob Nipper asked if a noise enforcement would give way to a code enforcement proceeding? It depends on whether or not there is a condition related to noise levels being met. Has the applicant exceeded his approval. Bruce White noted that you can limit the number and types of equipment on the jobsite. Linda Swearingen disagreed with Bruce. She felt that the decibel level should be the maximum level and if the applicant goes over it, there should be recourse. Dave Leslie noted that the best recourse is that the neighbors form a relationship with the operator/owner. If that ceases, there is no reason to assume it couldn't be begin with a new owner. Residents can also contact the County and the County can initiate a code enforcement complaint. Staff would then contact the operator and determine if there is a problem or not. If this was not taken care of, staff could recommend that the permit be revoked. Mr. Koger asked for a clarification of a time frame if something was taken to code enforcement. Bob Nipper noted that it would be investigated by the Code Enforcement Officer and a complaint is filed. A notice of violation is issued first and then a citation is issued. The person is required to appear in District Court. If the problem persists, Board of County Commissioners Meeting - 06/24/97 Page 5 0163-0629 eventually the County can file an injunction. Mr. Koger asked for more teeth in the process on the part of the neighbors. He asked for the record to remain open to respond to recent testimony. Dr. Van Waugh felt that there were a couple of issues which seemed to be finessed. He drew the attention of the terrain (a bowl) which in actuality might magnify the sound. There were issues raised about how the sound of a front-end loader was measured. He felt that the answer was unclear. He also felt that the applicant must prove that if their loader is in the line of sight, it will still meet the DEQ standards. He noted that he lives near Cascade Pumice and has been very impressed with how they do things. Chris Cranston lives in residence #3. She has a direct line of sight from her field. She has a tool that she has used to measure noise to see if she could get the noise of dogs barking in the area. She noted that whatever machinery they have in the area, it will be significantly more than a dog barking. The sound rises and spreads. She felt the gray area should be specified. She asked about the County having to borrow a noise meter. Dave Leslie responded that the standards are set by the state. DEQ no longer actively monitors noise at various sites. The standards we are talking about tonight are Administrative Rules. There was no more public testimony. Dugan Pearsall of Cascade Pumice was the first to give rebuttal testimony. He noted that most of the conditions which were agreed to in a previous mediation are being incorporated into this mining operation. He asked that nearby residents who have a concern call and tell them. He also noted that on Sites #355 and #356 the neighbors have never called them and then have a good relationship with the neighbors there. The noise study does not include highway trucks, but only the equipment which will be used on-site for mining. Sharon Smith, attorney for applicant, asked Mr. Stanley three questions. Does it make any difference in your noise analysis if the loader is operating at ground level or in a 30 ft. trench for meeting DEQ requirements. The answer was yes. Does it make any difference if the granite on the side of the hill is uneven in your conclusion that the sound will not bounce back and hit the receivers. The answer was no. Mr. Stanley noted that when a noise analysis is done, you must look at the topography and distance from the mining site. The scraper would be running from the lower elevation to the higher elevation. Sound is reflected at an equal angle. There will be some dispersion of the sound. However, it is only 1 dba. Mr. Stanley felt there was plenty of room for fluctuation on this. It was assumed the trees weren't there. The model ignored the attenuation provided by the terrain. The loader can never be at the same elevation as the scraper as they are never working on the same material. It was modeled for the conditions which will be out there. It would never be louder than what we predict, because they used worse case conditions. He felt that this operation can meet the DEQ Board of County Commissioners Meeting - 06/24/97 Page 6 regulations and will meet the regulations without mitigation. The DEQ regulations stipulate 25 ft. from the home. Mr. Hendrix stated that Mr. Stanley agreed that another piece of equipment would take them over the limit. Mr. Stanley noted, however, that he had made a mistake, because the original proposal was to begin mining in a corner of the property next to some homes. The location has been moved farther from the residences and there has been a drop in the level. Mr. Stanley felt that this should be a relatively quiet mining site. Bruce White asked about the testimony which noted that this is in a "bowl". Mr. Stanley noted that sound doesn't travel up any better than it travels sideways. In predicting noise, they did not include any ground effect, other than the barrier (elevation/terrain) effect. Sound travels in all directions the same way. Bruce White then asked if there was anything about this "bowl" that is reflective at all. Mr. Stanley noted that when he saw the site, the "bowl" was more of a straight line than a bowl in terms of reflections. Sharon Smith addressed leaving the record open. She recommended following the procedures outline in Section 22.24.140(D) which allows 14 days, 7 days for new information, and that the applicant have 7 days for the final argument. She also requested that the applicant have the right to, under Section 22.24.130(D), submit final written arguments in support of it's application after the record has been closed. Greg Hendrix requested that the Board leave the record open 14 days for new information and 7 days for rebuttal. Both Counsels were comfortable with the dates for keeping the record open. 14 days for additional or new information on noise only by 7/9/97 at 5:00 pm, then 7 days for response by 5 pm on 7/16/97, and then 7 days for legal rebuttal by 7/23/97 at 5 pm. The Board will make a decision by 7/30/97. IV. ADJOURNMENT There being no further business, Commissioner Schlangen adjourned the meeting at 8:20 p.m. OF CUNTY COMMISSIONERS ,HU COUNIjY, OREGON NANUIPO E SCHLANGEN ATTEST: V ROBAT L. NIPPER, Commis ' er Recording Secret DA L. SWEAMNGEN, CommissioRter Board of County Commissioners Meeting - 06/24/97 Page 7