2000-49-Minutes for Meeting October 07,1999 Recorded 1/31/2000VOL: CJ2000 PAGE: 49
RECORDED DOCUMENT
STATE OF OREGON
COUNTY OF DESCHUTES
�IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII
*02000-49 * Vol -Page Printed: 02/01/2000 10:23:41
DO NOT REMOVE THIS CERTIFICATE
(This certificate constitutes a part of the original instrument in accordance with
ORS 205.180(2). Removal of this certificate may invalidate this certificate and affect
the admissibility of the original instrument into evidence in any legal proceeding.)
I hereby certify that the attached instrument was received
and duly recorded in Deschutes County records:
DATE AND TIME:
DOCUMENT TYPE:
Jan. 31, 2000; 8:19 a.m.
Public Hearing (CJ)
NUMBER OF PAGES: 11
MARY SUE PENHOLLOW
DESCHUTES COUNTY CLERK
KEY
�UN ED
F E B - 2000
ILI -14 la
•00 JAN 3 � H 8: 19
MARY SUE r_ ENHOLLOW
MINUTES OF THE COUNTY CLERK
BOARD OF COUNTY COMMISSIONERS PUBLIC HEARING
OCTOBER 7, 1999
BOARD OF COMMISSIONERS HEARING ROOM
117 NW LAFAYETTE, BEND, OR 97701
Linda Swearingen, Chair, called the meeting to order. Commissioners present
were Linda Swearingen and Tom DeWolf.
Commissioner Swearingen read the opening statement that Barbara Rich had
prepared prior to the meeting.
Pre -hearing contacts: Commissioner DeWolf did not have anything to declare.
Commissioner Swearingen did not have anything to declare.
Ex -parte contacts - none from either Commissioner.
Commissioner Swearingen asked for staff presentation.
Barbara Rich noted that the subject property is identified on the assessor's map
18-12-23 as tax lot 300 and is located on the south side Arnold Market Road.
The surface mining portion of the property is 91 acres. She also noted that she
has reviewed the Hearing Officers decision, the noise report, and the applicant's
notice of appeal. She feels that the Hearings Officer made an error. There is a
primary dwelling and a rental house. The Hearings Officer got the two houses
mixed up and based a portion of her decision on this misconception. Barbara
Rich also handed out Exhibit A to the Appeal. This is a small map which the
Hearings Officer did not have a copy of for her hearing.
Barbara Rich noted that the noise report findings states that it will be within the
limits allowed. The screening device may, however, cause noise to be greater
than the noise limitations. Daily Stanley and Associates recommends that a
noise berm be put in around the screening device. Barbara Rich noted that a
berm would meet the noise requirements, but she has concerns regarding being
able to see the mining.
Barbara Rich then showed the Board of County Commissioners some pictures
taken from the west.
According to the sight plan approval that was issued in 1993, they are supposed
to have a visual berm that protects the residence on tax lot 400, which is the
Manwiller residence. They are also suppose to have a sight obscuring fence for
the property on tax lot 600, which is the Oren residence. Barbara Rich notes
that neither of these is in place.
BOCC Minutes —10/07/99 — Page 1
Barbara Rich noted that she feels we can site a "screening device" on the
property. Title 18 requires that the mining operator screen all equipment.
Exception is only allowed where the screening will not be effective. She did not
support eliminating the berm for visual impacts.
Linda Swearingen asked about trees for screening as opposed to berm
screening.
Tom DeWolf wanted to know what type of recourse we have when conditions are
not met.
Barbara Rich noted that we could send them a Notice of Violation.
Linda Swearingen wanted to know why tarps are required at the Rose Pit and
not at other sites. Barbara Rich noted that the applicant has asked for a six-
month trial period to use a water bar instead of the tarp. This is not typically the
way the procedure has been done. Linda Swearingen felt that we should require
everyone to use tarps. She felt that the applicant has made a good case to use
a water bar instead of a tarp. Barbara Rich reiterated that a six-month test
period would be problematic.
Tom DeWolf did not have a problem making this six-month test period work.
Commissioner DeWolf noted that he dealt with similar issues when he was with
City of Bend City Council.
Barbara Rich noted that in the event the Board reverses the decision of the
Hearings Officer, the staff would like to be present when discussing the
conditions of approval. Tom DeWolf wanted to know if there were other
conditions from 1992 that have not been complied with. Barbara Rich stated that
there are items still outstanding. The mine is not supposed to operate during
high wind activity and a portion of the stockpile area is within '/ mile of the
nearest residences.
Bob Lovlien, attorney for the applicant, gave a report. He stated that the berm is
not a problem here. Housing Authority decision says that there are other
residents that can see the surface mining operation. Screening and berming
requirements have been met according to the studies. A third noise study
reaffirms the fact that those noise mitigation measures are not going to be
required by DOGAMI. The consensus of the neighborhood is not to build the
berms, as they are not aesthetically feasible. Neighbors misunderstood the
berm feature. It was only for visual impact.
Tom DeWolf asked Bob Lovlien if he was referring to Page 3 of the Burden of
Proof on the Appeal. He was.
BOCC Minutes —10/07/99 — Page 2
Tom DeWolf read from the letter. The result of noise predictions indicate the
equipment can travel up to the boundary of the mining sight without exceeding
DEQ limits at either location, if there is no other escavation equipment used in
the same vacinity at the same point in time.
Bob Lovlien stated that what they offered and proposed was:
1. Applicant would use the type of screening device as represented in the
study.
2. Applicant would be % mile away from all residences.
3. Applicant would place the screening device in a pit below existing grade
and provide a line of sight berm around that site itself.
Tom DeWolf asked Bob Lovlien to clarify what equipment he is referring to. Bob
Lovlien stated he was referring to the screening equipment that does not exist on
site currently. Tom DeWolf asked if the screening equipment was brought to the
sight for the noise tests. Bob Lovlien stated that it was not. The manufacturer
provided them with the actual noise reading from the equipment itself at different
locations.
Barbara Rich clarified that the two moving pieces of equipment that Bob Lovlien
was talking about in his letter were the scraper and the dozer. If these two
pieces of equipment are operated at the same time they could exceed the noise
limit.
Bob Lovlien noted that the applicant will commit to building the berm now.
Currently material is being stockpiled and/or being used for reclamation. The
material is not being properly utilized. When the new equipment is brought in,
the material will go through a screener and the left over rocks will go back into
reclamation. A berg will be built around the pit and screener. This would take
care of the noise and visual problems. The screening device will be in a
permanent location.
Bob Lovlien showed the commissioners an estimate of where the pit, screening
machine and berm would go. There was discussion as to where the best
location would be. Applicant states that they will stay 1/4 mile from the
residences. Tom DeWolf asked for clarification as to why the berm was never
installed. Bob Lovlien noted that the noise report was faulty. He believed that
the mitigations would only be triggered if they got close to the residences. He
did not feel they had approached the distances required to build the berm. In
1994, a study was done and it was determined that the noise mitigations were
not accurate or necessary.
BOCC Minutes —10/07/99 — Page 3
Applicant will have a noise study done within six months of the installation of the
equipment.
Bob Lovlien expressed concerns regarding staffs interpretation of "processing".
He also mentioned that his concern with the tarping issue was not the economic
disadvantage but the potential hazards. He noted that Jack Robinson and Sons
has a water bar right next to Broken Top and there has been no problem. In
1992, the applicant was under the impression that there was going to be a
countywide tarping ordinance. That has not happened.
Linda Swearingen asked if the applicant has met with the neighbors prior to this
meeting.
Bob Lovlien confirmed that they have and only three neighbors attended.
Both Commissioners stressed the fact that it is extremely important that this be
done prior to the hearing.
Kerrie Standlee with Daly, Standlee and Associates explained to the
Commissioners why there were assumptions made regarding the first report that
came out. In 1992, Bud Rose wanted to open up a dirt pit. He had no
equipment, didn't know what equipment he was going to have and he talked in
generalities of what might happen. Kerrie Standlee looked at a worse case
scenario. He used the information from a similar machine at Knott Landfill. The
noise from the machine Bud Rose purchased was actually much lower than what
was measured at Knott Landfill. Based on the 1999 data, the scraper (primary
piece of equipment) confirmed their predictions.
Kerrie Standlee then referred to the Housing Authority decision. On page 12 it
states that the applicants noise study does not address the maximum noise level
standard for the equipment being used on the site for the proposed screening
device. Therefore, the Hearings Officer finds the applicant has not presented
substantial credible evidence that operation of the proposed screening device
will meet DEQ standards for maximum noise emissions from the proposed
screening device.
Kerrie Standlee noted that he does not know if he is to interpret that literally.
First of all there is no maximum noise limit standard. It is an hourly statistical
noise standard. Kerrie Standlee then did a noise demonstration with his
equipment. He explained that there are three categories:
♦ L1 —The level equal or exceeded 1% of the hour or 36 seconds.
♦ L10 -The level equal or exceeded 10% of the hour or six minutes.
♦ L50 - The level equal or exceeded 50% of the hour or thirty minutes.
BOCC Minutes —10/07/99 — Page 4
An ambient noise is anything not associated with the pit. Ambients are taken into
consideration when determining what the acceptable noise level is.
Linda Swearingen wanted to know what the impact would be if the screening
device is put at one point versus another point. Kerrie Standlee explained what
the actual levels were determined to be. He also explained how they go about
getting those levels. Tom DeWolf asked how neighbors could expect to believe
the applicant when previous conditions imposed on the applicant have not been
met.
Linda Swearingen commented that once a decision is made she wants both
sides to fully understand why that conclusion was made whether they agree with
it or not. Kerrie Standlee also noted that it might be wise to get the neighbors
involved in the monitoring process.
There were questions from the audience regarding the noise of the trucks picking
up rocks and sudden explosive sounding noises. The measurements are taken
25 ft. from the structure. The Housing Authority study states that (page 13) the
Manwiller residence should have an L10 of 60db. There is a maximum ambient
noise level and there is a maximum level allowed by the law.
Kerrie Standlee noted that on page 15 the Hearings Officer listed eight items as
reasons the noise study didn't demonstrate that DEQ regulations were being
met. He read the items and then gave his explanation.
1. The applicant's evidence does not address whether the equipment currently
operating on the sight or the proposed screening device meets the DEQ
maximum allowable noise standards for the equipment.
Mr. Standlee noted that on page 5 of the report it states they demonstrated
beyond a shadow of a doubt that the noise radiating from the pit currently meets
the DEQ noise standards at all residences around the pit.
2. The County Code requires all screening devices to be % mile or more away
from all residences.
Mr. Standlee stated that this is what will actually occur.
3. The noise study does not address noise impacts on the closest residence.
Mr. Stanley stated that the confusion over which property was being discussed
has already been cleared up.
BOCC Minutes —10/07/99 — Page 5
4. The noise study indicates operation of the scraper alone in the area proposed
for mining near the Manwiller and Oren rental residences will generate noise
meeting or exceeding the maximum L50 levels of these residences.
Mr. Stanley doesn't understand where the Hearings Officer got that information
from because in the document they predicted what the maximum levels would
be. It is possible she took that maximum level, which is just a statistcal level,
and compared it to the standard.
5. Item #5 discussed the property issue.
6. The noise study predicts that the accumulative effect of operating the
screening device and other equipment at the sight could very likely exceed
DEQ regulation at the Oral rental residence without the noise buffering berm.
Mr. Stanley wants to bring out the point that the noise buffering berm is not the
original 1992 berm.
7. The study did not state a conclusion about the accumulative effect of the
screening device and other equipment on noise at the Oren and Manwiller
residences both of which are located closer to the sight boundaries than the
rental residence.
Mr. Stanley stated that this has been reversed. The level will be below the
criteria at the Manwiller residence.
Linda Swearingen noted that even though the noise levels meet the standards,
the neighbors do not like the standards.
Mr. Halvorsen asked Kerrie Standlee how many times he had been to the site to
do the measurements. Kerrie Standlee had been there twice. He also noted the
number of vehicles operating o the site. On March 25, 1999, four trucks came
and left by 9:30 a.m. There were a total of 7 trucks in an hour. He returned April
2, 1999, to perform another test.
Tim McGinnis, who exports materials from the Rose Pit, spoke. He noted that
they run $15,000 to $20,000 per month out of that area. He runs three trucks
per day in and out of the Rose Pit. He has had two employee injuries on the
property due to having to put tarps on their loads. Rose has provided catwalks
for Tim's drivers to install their tarps. They tarp at Rose Pit because of the
requirement but once they are away from where it is required they take the tarp
off so it does not get torn. He prefers the wetting of the loads. The driver never
has to get out of the truck when they use the water bar.
BOCC Minutes —10/07/99 — Page 6
Tim McGinnis stated that he has a screening device, which is used less than %
mile to residences. His screening device is portable and he is not required to
use water or a berm. This has not caused any problems for him.
Linda Swearingen noted that there is a difference between tolerating the noise
for a limited duration and trying to tolerate it every day.
Tim McGinnis has had drivers complain because on two separate occasions they
could not load because of high winds.
Tim McGinnis was asked several questions from the audience regarding size of
unscreened materials.
Pat Rogers, 60500 Arnold Market Road, Bend - feels it is important to give the
Commissioners an idea of why the neighbors don't want any changes. Her
house was built in 1976. From 1976 to 1993, when the mine started operating,
there was a constant struggle over whether or not the mine should go in. There
were numerous meetings over the years. When the operation was approved to
go in it was upon the contingency that there would be specific measures taken to
protect the neighbors. None of those measures have been followed and Pat
doesn't feel that the Rose Pit should be allowed to try and change those rules
now. The Rose Pit should have to follow through on its original promises.
Joan Hale owns property on Bobcat Road. She has owned her property since
1971. She agreed with Pat Rogers. She said the neighbors were told Bud Rose
would be mining dirt, not crushing rocks. She asked Bud Rose if he has had a
sorter or a screener on his property. She wondered if there are any chemicals in
the cement or where they dig holes. She had concerns about well
contamination. She is also concerned about the noise, dust, rocks falling off of
trucks and all potential health hazards created by the mine.
Linda Swearingen asked Barbara Rich if Bud Rose can allow material to be
brought into the site. Barbara Rich stated that no landfill or solid waste materials
can be placed on site.
Jill Ergenbright, 60380 Arnold Market Road, Bend - moved to her site in
September of 1983. She also attended several meetings. She and her
husband work at home and can hear the backup bells from the equipment. She
would be against any change that would make it noisier.
John Halvorsen objects to any increase of activity in the Rose Pit. He wanted to
know what determines the five acres they can work on as opposed to the 30 or
so acres that is currently torn up and don't seem to be reclaimed.
BOCC Minutes —10/07/99 — Page 7
Barbara Rich noted that the five acres is the actual mining site. She was not
sure what the law is regarding what the time limit is for them to reclaim the 5
acres before moving on to the next five acres.
John Halvorsen was insistent that the answer to this be found. He noticed that
the applicant can use five acres and before that five acres is reclaimed, he starts
on another five acres, and another five acres. He feels that the rules for this
operation should be very stringent. He felt that if the applicant would use the
water bar, and forget the screener, he would agree to that.
Izzy Oren, 60660 Bobcat Road, Bend — this property is the closest to the surface
mining operation. He moved there in 1989. He was told that the landfill would
only be there for three years. Then there was additional funding for another 10
years. Then the mine was put in. The original agreement stated that the mine
would have to shave two feet from the topsoil and keep that dirt for the
reclamation. They are only supposed to mine five acres at a time, fill it up, then
replace the two feet of top soil so the vegetation could grow back. This is not
being done. There are continuous violations. Violations have been called in to
Dave Leslie many times. He also noted that the water bar is not going to help.
Once the truck travels for 3 minutes the dirt dries and starts flying out of the
truck. They have lost value to their property because of the surface mine. He
stressed the fact that the Commissioners' decision should be just. He stated
there was supposed to be a $10,000 fund for continuous monitoring of sound.
He questioned how often and when the noise testing should be done. This item
is not being complied with. He is concerned that the screening will increase the
number of trucks coming in and out and the noise.
Linda Swearingen asked for clarification on how much land has gone through
reclamation. She wanted to know their explanation of reclamation. She also
wanted to be given an estimate of when the land they claim has been reclaimed
will show vegetation.
Bob Lovlien noted that they would like to get enough fill from other sites to
reclaim these areas. He noted that there has been substantial reclamation
already.
Bud Rose noted that he wasn't sure of the life of the site. He gave an
explanation of the reclamation requirements. They are allowed to leave a 60 -
foot deep hole with 3 to 1 slopes. They must put back the material that is
required and seed it. They elected to turn it back to the original green.
Tim McGinnis stated that as far as the screening goes, they quit purchasing dirt
from Bud Rose because there were so many "boners" in the dirt. They have
since returned to purchasing dirt from Bud Rose because they have found a site
to use the "boners" at.
BOCC Minutes —10/07/99 — Page 8
Tom DeWolf wondered if the reason for the tighter restrictions was the fact that
this sight is around so many homes.
Bob Lovlien stated that Ed Fitch who was the Hearings Officer at that time set
the conditions. There was no agreement with the property owners. The
applicant's contention is that this allows the full extent of the law.
Linda Swearingen felt that since this gravel pit was going in a residential area,
this is why the restrictions were so stringent.
Tom DeWolf commented that the applicant is the one who brought the items to
the table, they then became part of the conditions and then the applicant did not
comply. Bob Lovlien disagreed. They did not have to comply with the conditions
until they got a certain distance from the residences.
Barbara Rich read the condition of approval. It states that to the greatest extent
possible the property shall be visually screened from sight from surrounding
neighbors. The finding Hearings Officer Fitch made in support of that condition
of approval speaks to the zoning ordinance that requires that screening be
provided to obscure the view of screen uses from protected uses unless an
exception exists. He found that there was an exception for the properties known
as tax lots 601, 701 and 800 because the supplied screening would be
ineffective. For the tax lot 400, the Manwiller property, and tax lot 600, the Oren
property, he found that the supplied screening would be effective and that the
proposed berms and fences that the applicant proposed would serve the visual
screening purpose as required by the ordinance. Bob Lovlien's interpretation
was that they only had to do it for certain distances.
Barbara Rich read another condition of approval. The developer shall install
screening and barriers as recommended in the Rose and Associates pit noise
analysis Exhibit 1 prepared by Daly, Standlee and Associates on June 11, 1992
and shall meet the visual screening standards described in section 18.52.110 of
the County Code. Barbara Rich will make Board of County Commissioners
copies of SP -92-98, which is the original sight plan approval on the property.
Tom DeWolf asked Barbara Rich to check on reclamation rules. Barbara Rich
will get these from DOGAMi.
Tom DeWolf asked Barbara Rich to find out if there were requirements for
continuous sound monitoring. He also asked her to check into any further
answer on the impact to traffic as a result of potential screening.
BOCC Minutes —10/07/99 — Page 9
Linda Swearingen gave her interpretation of how the funds for monitoring sound
are handled. The County orders it whenever they deem it time then bill the
applicant. The applicant pays it from the funds set aside.
Tom DeWolf feels on one hand Bud Rose has a right to make a living. On the
flip side if there are rules that he should have been following that he is not
complying with there needs to be someone there to enforce them. Why should
the neighbors have to go through the trouble of hiring lawyers?
Linda Swearingen asked if there was a possibility that a mediator could assist
the applicant and property owners with coming to an agreement.
Discussion continued.
Linda Swearingen noted that the record would be kept open for 30 days from this
date. The Board of County Commissioners will put into the record what their
comments are when they visit the site.
Kerrie Standlee commented that it does not matter when the noise
measurements are made. He noted that when you make the measurement, it
doesn't matter what is operating. Having more trucks will not affect the overall
level that is measured. Predictions are done on the assumption that everything
runs continuously.
Bob Lovlien asked for the rebuttal to be put in writing. Any comments should be
sent in by 30 days after this date. Then there will be a one-week rebuttal for the
applicant to respond to the comments.
There being no further business the meeting was adjourned.
Dated this 26�day of , 000.
BOARD OF COUNTY COMMISSIONERS
FOR D SCHUTE OUNTY
-fin-da L. Swea 'n n, Chai
ATTEST: Tom DeWolf, Commiss n r
&M4L
Recording Secretary Dennis R. Luke, Commissioner
BOCC Minutes —10/07/99 — Page 10
PLEASE SIGN YOUR NAME AND ADDRESS
MAWR Annupnq f Pl rsama i im _l nAAM vnnr w i v%l
oll::z
%j08 LD,iLIan/
196, 6 o !1j 1 EWD
0r2 r'!-7?O7
Rocs
O o 0
L 0SM &rliolJ
77�
02t
u/� G
2-o