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2009-1200-Minutes for Meeting December 03,2008 Recorded 5/12/2009COUNTY OFFICIAL NANCYUBLANKENSHIP, COUNTY CLERKDS Vd 2009-1200 COMMISSIONERS' JOURNAL a5/1Z/2a09 a8;a7;45 AM ■1 . ■ I M......... 2009-1200 Do not remove this page from original document. Deschutes County Clerk Certificate Page If this instrument is being re-recorded, please complete the following statement, in accordance with ORS 205.244: Re-recorded to correct [give reason] previously recorded in Book or as Fee Number and Page Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF PUBLIC HEARING DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, DECEMBER 3, 2008 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Dennis R. Luke, Michael M. Daly and Tammy Baney. Also present were Will Groves, Community Development Department; Laurie Craghead, Legal Counsel; Hillary Borrud of The Bulletin and other representatives of the media and approximately twenty other citizens. The purpose of the meeting was to take testimony on a comprehensive plan text and map amendment and zone change from surface mining to rural residential to allow redevelopment of extensively mined, non-agricultural property, including a non-resource designation. The applicant is the Daniels Group; the property is located near Lower Bridge Way. Chair Luke opened the meeting at 5:00 p.m., at which time Will Groves began reading the opening statement regarding how the hearing would be conducted. In regard to pre-hearing bias, conflicts of interest, ex parte contacts, Commissioner Baney stated that she met with the Daniels Group and their attorney to briefly go over this issue prior to an application being submitted, some time ago. Commissioner Daly said that he also met with the same people months ago when they first started considering this proposal. He said he is also acquainted personally for many years with two owners of the property, Reiminschneider and Nolan. He also hauled material from this site while he was working as a contractor. Commissioners Daly and Baney indicated they have no bias due to these contacts. Commissioner Luke indicated all of his contacts have been in a public context. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 1 of 25 Pages Will Groves stated that although the official notice indicated a hearing time of 5:00 p.m. tonight, the website had indicated 5:30 p.m. in error, and the applicants are late to the meeting based on this information. The Chair asked him to continue with the staff report, which should be familiar to the applicants. (A copy of the staff report is attached for reference, as Exhibit B). At this time, the applicants and attorney arrived at the meeting (approximately 5:15 p. m.) Commissioner Luke asked if the Hearings Officer's findings were based on information from the County or the Oregon Department of Transportation. Mr. Groves said there is a failing intersection in the area and the impacts have not been mitigated, and there is no proposed mitigation at this time. The only impact is on Highway 97, not Highway 126. Commissioner Daly asked about recapturing a mining site that has not been reclaimed. He asked if DOGAMI (Department of Geology and Mining Industries) or another entity indicated that it has not yet been done. Mr. Groves said that the applicants claim some reclamation has been done. One confusing issue is that it is unclear from the record exactly which site this applies to, and the status of the reclamation. Commissioner Luke asked if there has been any change since the work session. Mr. Grover said the applicants were present at the work session, heard the concerns voiced and will address them tonight. Commissioner Luke said part of the property is EFU and part is surface mining. He asked if all of the property was going to be addressed. Mr. Groves said that it includes surfacing mining and a portion of EFU and other agricultural land. The Hearings Officer's analysis was that the majority of the site is not EFU, it is class 6 or worse type soil and the EFU does not need to be addressed separately. It was primarily zoned surface mining reserve years ago. In 1985 it became surfacing mining. Commissioner Luke asked how State law handles lands that are no longer useful for mining. Laurie Craghead stated that the Board could decide what the use should be. It has to become something else if someone applies for a new zone. Mr. Groves said this is in Code as well. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 2 of 25 Pages Commissioner Baney asked about traffic impacts. The zone would change but the project would not be addressed at this time. She asked if this would be better addressed when the specific project comes up. Mr. Groves replied that the transportation planning rules assume that if a zone change is done, at that time all potential impacts are considered. This is usually based on a worst case scenario. Commissioner Baney said that it appears that it has to get to that point first. Commissioner Luke referred to Goal 12, transportation planning rules. The issue is the worst case scenario, and it is not necessarily based on similar sites. Peter Russell feels that location is more of an issue that uses on similar types of sites. Commissioner Luke stated that if they came in with an application of ten lots, the mitigation would be less than 70 lots. Ms. Craghead said the issue is whether you can get there; or should it be a different zone. That has to be determined first. Commissioner Luke stated that the same standard is being imposed on the County in regard to several locations; looking at the worst case scenario. Commissioner Baney said that her notes show fifteen trips were suggested for mining operations. Ms. Craghead stated this would be addressed by the applicants' attorney. Tia Lewis, attorney for the Daniels Group, said the project team is here, ready to answer questions and explain their application. She said they have been working on the land use portion of this project for over a year, but plan to address just the issues brought up by the Hearings Officer. At this time Greg Daniels, representing the applicants, began a PowerPoint presentation. He said the Daniels Group has been an entity for over 35 years. He showed several projects that were developed on previously mined land. Millions of dollars and a lot of work were required to bring these developments into existence. He said the reclamation process has already begun at Lower Bridge Way. Audience members asked to speak. Commissioner Luke stated that the applicants will complete their presentation and others can then testify formally. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 3 of 25 Pages Ms. Lewis said that the record on this issue is very extensive. The Hearings Officer did a thorough job and held a lengthy hearing. The decision addresses a lot of criteria in great detail. She found that all of the criteria were addressed except some having to do with reclamation and traffic. She gave a roadmap for approval as well, identifying findings and evidence that must stand review. Ms. Lewis stated the reclamation portion is being addressed by a formal reclamation plan. (She referred to some oversized exhibits at this time) The Hearings Officer found that they did not meet some criteria. She found evidence that the site was reclaimed to DOGAMI standards. The site plan 85-23 was found to be lacking. As a part of that application process, certain reclamation standards were agreed upon. Commissioner Luke said they were not subject to DOGAMI standards and the County does not have staff that can make that determination. Ms. Lewis said that DOGAMI has determined those areas that fall under their purview were adequate. Commissioner Luke asked if DOGAMI would be willing to certify the rest of the site. Ms. Lewis said DOGAMI feels it has been reclaimed to their standards, which does not include vegetation. Commissioner Luke said that either the site is certified or it isn't. Mr. Groves said that the vast majority of the site predates DOGAMI standards so has no standards. After DOGAMI came into existence, the areas that fall into that timeframe have been reclaimed. They do not address the other areas. The application volunteered to do reclamation on a limited land area. DOGAMI has no requirements on the site. Ms. Lewis said that Code says that is has to be reclaimed to DOGAMI standards or County standards. The Hearings Officer found that the applicants' plans fit into those findings. Mr. Groves said that 85-23 is an area that opened up for mining at that time. Ms. Lewis said the Hearings Officer found in this case that the site is reclaimed to DOGAMI standards but not to Code, and needs to be denied or conditioned. The applicants will complete the subject area to Code standards. It differs in that it includes water, and 85-23 does not have water. There is no additional water and native vegetation cannot be replanted and survive on its own. The plan includes planting, maintenance and watering of native plants as needed. Ultimately, a much greater area of the site will be reclaimed than is required. The reclamation will be complete in conjunction with site development. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 4 of 25 Pages With regard to 85-23, one issue in the decision was that the map is not in the County records. It is a subject of debate as to which area that covers. This will be addressed tonight by Bob Reiminschneider. Commissioner Luke asked if the applicants' new proposal and what DOGAMI has already certified cover 100% of the property. Ms. Lewis stated that the reclamation plan covers an 18-acre area. The area DOGAMI certified is not the same area, but this probably does not cover the entire site. Commissioner Luke said there is an area covered by DOGAMI. Some of the area will be covered by this plan. He asked what the amount of land is that neither covers. Ms. Lewis said she did not know. Bob Reiminschneider said that they had to get a DOGAMI permit and have a plan for the 18 acres. There was another part that was permitted but was not developed. It was cleaned up, planted and watered. Ms. Lewis said it does mean that they will revegetate that area. It needs to be made attractive. The County's regulatory authority relates solely to the 18 acre area. The majority of the site is pre-zoning and pre-DOGAMI. The remainder of the site will be revegetated the same as the rest, and this process has already begun. The zone change applies to the entire land; the reclamation applies just to the areas that were under DOGAMI or Code. Commissioner Luke stated he is not happy with this situation. Ms. Lewis said they are following the roadmap laid out by the Hearings Officer and they hope to reclaim the whole site to make it attractive. There is a watering and planting plan for the entire site. There will be monitoring opportunities for the unregulated area. Commissioner Baney asked if the County could then allocate a zone change to a specific area, or the entire area as presented. She also asked whether the County can require additional conditions for reclamation. Ms. Craghead replied that additional requirements for reclamation for the area designated pre-zoning are probably not possible. In regard to splitting the parcel and allowing the rezone on the reclamation areas, she would have to look into that. Ms. Lewis said there is a staff report and other information on the 18 acres, but the map from that time is not available. Mr. Reiminschneider indicated that they took the topsoil off and about five feet of gravel, and put the topsoil back on. There is some vegetation, as it was planted to clover. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 5 of 25 Pages Commissioner Baney asked where the pivot is. Mr. Reiminschneider referred to an oversized map, showing where the pivot is and what area it covers. It is planted in clover and grass. Ms. Lewis said based on the DOGAMI requirements, Code and their site plan, the reclamation area not met is 18 acres per the Hearings Officer. The obligations agreed upon in the revegetation plan includes this. There is a planting and watering plan. This plan is more realistic, using native plants so it is stable. They will impose this as a condition of approval. Ms. Lewis went on to discuss traffic impacts. The Hearings Officer concluded the burden on the Transportation Planning Rule was not met, but she gave a roadmap for approval. Ms. Lewis referred to an oversized display. The Transportation System Plan (TSP) rule and the trip generation chart were addressed. The TSP contains a standard that the decision cannot significantly affect transportation. This is a detailed term with a lot of interpretations. The test is the worst case scenario. You take the worst case scenario from the existing zoning and compare it to the proposed zoning. If they are equal, there is no significant effect. If it creates more, mitigation is necessary. In this case the chart shows the reasonable worst case scenario. There was testimony about 15 trips under current zoning. Other sites show more significantly more trips. Commissioner Luke stated that Hooker Creek Company and Knife River Company are used as comparables, per Peter Russell. Ms. Lewis disagreed with this because they are 90 acres and 120 acres, while the subject site is over 600 acres. This would compute to 83 trips. If you look at other sites, the rate goes up to 690 trips. Those sites are more urban. She accepts the sites he referenced, but the size of the parcel needs to be considered. Commissioner Baney stated that they likely would only be mining a portion of the site at a time. Ms. Lewis said that there are a lot of uses allowed on those sites, including processing and other activities. At the plan amendment zone change stage, a plan is not being approved. There would not be 74 homes on site immediately. This would take 20 acres or less. In theory, one would look at the maximum use at the site now and later, and it is not necessarily a realistic use. Commissioner Baney said that the maximums appear to be used for both. Ms. Lewis stated that there are regulations at the subdivision stage that would further address potential traffic impacts. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 6 of 25 Pages This brings in the theory vs. reality, which brings in the Wimp Way issue. She supports this closure due to safety implications, but it does impact this application. The appeal deadline expired for that before they could comment. Wimp Way was closed for safety reasons, but it fundamentally affects the entire area. Those are real trips that exist today. Wimp Way was closed without a traffic study or addressing the TSP. Commissioner Luke said this was, in fact, studied for years. ODOT studied it considerably. Ms. Lewis said there were no findings as to impacts or traffic counts, but there may be a lot of data out there that is not included. It puts real traps through the other intersection. Commissioner Luke stated that Wimp Way would not be closed until Lower Bridge Way is constructed to handle traffic properly. 1V[s. Lewis said this shows the theoretical interplay relating to transportation and the actual impacts. Based on the progress that ODOT and the County are making on this issue, it is likely that this will be resolved before applications for building are even submitted. Commissioner Luke stated that the improvements at Lower Bridge Way and Highway 97 would allow more stacking for left and right turns. There are safety issues, but the design will improve the capacity of that intersection. Ms. Lewis said she was not aware of all of this. Commissioner Luke said the development could cause it to fail; Ms. Lewis said it is already at that point. Ms. Lewis said this issue has had extensive testimony and lengthy hearings. This property once stored solid waste materials and a number of regulatory agencies have reviewed the site. All of the agencies have signed off on the site as not presenting a safety or health risk to surrounding area. The blowing dust is an issue now. The property owner has planted and watered and development will improve this condition. DEQ supports the residential use and has found no problems with the plan in this regard. The conclusion is that the site presents no significant health risks. The State Department of Health Services (DHS) has spent time reviewing this site. DOGAMI supports developing the site. She said that there will be testimony on the use of the site. However, the agencies with regulatory authority have signed off on environmental concerns. The County is looking at the zoning and relies on these agencies to provide technical opinions. Linda Swearingen has worked with DEQ and DHS and has a statement prepared. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 7 of 25 Pages Commissioner Luke apologized regarding his comment about the project causing failure. There are times in all areas when the traffic is more than the roads can handle. There are other problems on that highway that ODOT and the County don't have funds to address. Commissioner Daly stated that no one has mentioned Buckhorn Road. This routes traffic out to Highway 126. That is often the quickest way to get to Bend even though it is not paved. Ms. Lewis said that some trips were assigned to this route, but probably not as many as will actually use it. Sometimes the studies are based on the best guess as to where traffic would go, and whether a road is paved. There were some trips assigned to Buckhorn, but this is a big unknown. There were only two peak hour trips going through there. Commissioner Luke said that ODOT is not concerned about Highway 126, as the biggest problems are on Highway 97. They are trying to close as many access points as possible along that route by use of a frontage road. Linda Swearingen stated that Diane Lozito said there was a problem in the Lower Bridge area with dust and the mine site. It was problematic because it was first maned in 1920 and because it was developed so long ago, it would not be reclaimed as it should be. She called the DEQ and others and the Commissioners at the time were told they were in compliance. There was toxic waste on the site, and barrels were removed from there. She heard from Greg Daniels a couple of years ago, indicating they would like to develop it. No one was willing to fix the dust problem and other reclamation issues. The first thing that was done was to contact numerous property owners in the area, hold meetings and discuss with them what the concerns were. Newspapers and old documents were reviewed regarding this site. Senator Ben Westlund agreed to have a meeting, and he covered the Oregon Water Resources Department, DOGAMI, Health Services and State Parks. At that time they were able to agree that a solution was needed to deal with the dust and reclamation. The owners then seeded the area and put in some water. There isn't water there and a license had to be obtained for that. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 8 of 25 Pages They have tried to be good neighbors, but she understands that this might not be enough for some people. However, without a zone change there is no incentive to do any more than what is required. This is an opportunity to do something good with the property. The developer can bring in a proposal with conditions to improve it. In light of the economy, the owner has done a lot. It is not cut and dried but he wants to work with everyone. It is an opportunity that has not come along since 1920 to do something positive with it. Ms. Lewis stated that there was a lot of money and time spent on this property thus far. All kinds of studies have been done and all regulatory agencies have reviewed the property and submitted their findings. This application meets the criteria for a plan and zone change. There are further review opportunities but this proposal is approvable and can be defended at LUBA if necessary. At this time Chair Luke opened up testimony for the opponents to the proposal. Paul Dewey indicated that he submitted written testimony. He and his clients support the Hearings Officer's decision of denial, but believe there are other bases for denial. He disagrees with this being a close question for the Hearings Officer; she clearly found that the applicants failed to support the transportation problem. He contacted ODOT and the transportation planner last week regarding proposals from the applicants, and he believes they had not heard about the acreage argument. Commissioner Luke said that Peter Russell is gone and won't be back until next week. He added that there is nothing on the TSP at this time. Mr. Dewey asked that the record be left open so he can comment on this new argument. Commissioner Luke stated that another date was set aside to continue this. He would like to have an opportunity to hear further testimony. It was pointed out that a date and time was already set up for a continuance on Dec. 17 at 5:30. Commissioner Daly stated that he will be on vacation but will be in town, and would be happy to attend a hearing on that date. Mr. Dewey stated that he believes using comparables pushes the numbers too high. The applicants have said that the resources are exhausted and mining isn't viable. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 9 of 25 Pages So it is not reasonable to assume that there would be traffic from this site in the future. The worst case scenario should be whatever traffic would come from a site without resources. He also believes that an additional analysis should be done in regard to the Wimp Way closure, and BLM creating an additional emergency access for Crooked River Ranch. Commissioner Luke said there are a couple of different options, one going north at High Bridge and another improving an existing a dirt road that would go to Lower Bridge. Commissioner Daly said he isn't sure what is happening with that, but it would be just for emergency access. There were right-of-way issues at the time. Mr. Dewey expressed concern whether all of the additional traffic would be considered. He said that the Hearings Officer didn't go into the issue of protection and enhancement of rural land use. He is concerned about the safety of the local roads. The Hearings Office said the local roads are overloaded, but did not address current safety issues. The additional trips would violate that policy. Commissioner Luke asked for specifics. Mr. Dewey said site distance and curves are a concern. It is also a rural area with significant agriculture, so there is slow- moving farm equipment using roads in the area. In regard to reclamation, he believes that the Hearings Officer erred about remedies to this before it is rezoned. ESEE (Economic, Social, Environmental and Energy) has not been addressed either. It has its own reclamation standards. He believes that the reclamation standards are not limited to those of DOGAMI; the County standards should apply as well. Commissioner Baney asked if ESEE falls into the DOGAMI piece due to the time it was originally zoned. Ms. Craghead stated that she would have to look at Code provisions in this regard. Mr. Dewey said that the ESEE is part of the comprehensive plan. In regard to Goal 6, he feels it was not addressed by the Hearings Officer either. He said she concluded that concerns are addressed through health and administrative rules, and she deferred these decisions to DEQ and DHS. This is not appropriate. She should apply County land use standards, and should at least address Code criteria regarding dust control and other issues. To a certain extent, the applicants feel there needs to be something done with the site, but there is nothing to show that anything proposed is feasible or workable. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 10 of 25 Pages There seems to be a wish that it be remediated. It is unknown as to whether this will actually be reclaimed. The Hearings Officer should address Goal 6 and Code criteria. In regard to agricultural and land issues, the Hearings Officer said the land is not suitable for agricultural. Where the land was reclaimed and replanted, grazing is occurring, so it is suitable for agricultural. He does not believe the Hearings Officer was accurate, and also disagrees that no Goal 3 exception is needed, since the majority of the site is not agricultural. He feels that the site could be reclaimed for grazing purposes. It is a matter of getting soil back onto the site. Rex Barber, testifying for the applicants, said he owns the adjacent properties north and west of the mine, known as Big Falls Ranch. He knows the long history of the property since 1962. He has memories of his first visit and has been involved with the property ever since then. His father's corporation owned the property previously, and they have operated the adjacent farm since then. He was hired on a contract basis to manage the pivot water and seeding project this summer, from June to early October. Allowing a change in zoning to residential will be more compatible with adjacent residential development now in the area. The primary complaint has been living next to the mine; the only fix is to rezone it. Without some sort of economic incentive, there is no ability or incentive to reclaim it. Commissioner Daly asked if it could still be agricultural land. Mr. Barber said it would not be economically feasible to try to grow anything on it. The property is not level; it would not produce enough vegetation to graze more than a few days a year, which does not make sense. The grass plantings done under pivot sprouted and they got maybe a 30-40% germination. They might be at 80% this spring. But it was planted to a native grass mix that is compatible to the area. It may maintain itself without additional water but would not support much grazing. Phil Grillo testified that he is a land use attorney who lives in the area. He lives near the end of NW 93`d in Terrebonne. He submitted a letter in March 2008 to the Hearings Officer, and his position at the time is that in general they are supportive of converting the mine to RR-10. His concerns at the time have not yet been answered. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 11 of 25 Pages He focused on the reclamation issue, particularly the DOGAMI and Code aspects. From his perspective as a resident, the problem is the dust issue, which is a public nuisance. It is actionable now regardless of a reclamation plan. The question is how much area the applicants plan to work on. It is over 600 acres and not all of it has been discussed. He asked if the dust mitigation will actually happen on all of it. There are a lot of moving pieces and he does not understand it all. The hazardous waste came to light years ago, and about six months ago the owners came in for a zone change. A zone change is not always the answer, and they need to be more specific as to what will happen there. One problem is that in 1985 the Hearings Officer found that the plan was vague. There has been discussion about the 18 acres in 83-23. He asked about file #ZC-83-23, and whether it is the same thing. Will Groves said that the applicants applied for a zone change to mine an area that had not yet been mined. The decision was limited to 339 acres and a reclamation plan was required along with a site plan. This applies to only the SP-83-23 file. Mr. Grillo stated he feels that the Hearings Officer wanted the reclamation plan to cover the entire area of the zone change. He feels the reclamation plan was for a larger area than the 18 acres. These are old decisions and it is hard to get all of the information now. He said that if the Board approves this, he would like to see the intent clarified and conditions in a number of areas. First, residential clean-up standards and voluntary clean-up need to be addressed. It needs to be clear what is to happen. The conditions stated in 1985 are very vague and are hard to determine. Commissioner Luke said that this area was a lot different in the 1980's. Mr. Grillo stated that he believes in due diligence and wants to make sure this is clear in the future. Commissioner Daly asked if he is talking about the entire 600 acres, not the 18 acres. Mr. Grillo says he believes the zone change of the 300 acres required this. The issue in regard to cleanup has nothing to do with reclamation. Residential clean-up has to do with environmental issues. He is concerned there are other hazardous materials on the property. This needs to be better coordinated with the County and DEQ. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 12 of 25 Pages Commissioner Luke asked whether there was a zone change in the 1980's. Mr. Groves said it was surface mining reserve, changing over to mining. Mr. Grillo stated there needs to be dust abatement. He does not understand this program and how much land it covers. There is still a lot of area not being addressed. Commissioner Daly stated that the proposed development will take place on the areas bordering the river, not in the area where the waste was. Any holes punched for new wells would be through virgin soil. Mr. Grillo said that this may be true, but there are a number of other wells, including the one for the pivot, which are in other areas. He said he spent several days with DEQ going through materials. The location of some of the ponds were moved around and not everyone is clear where things were. Some depend on the strata of the area. There are seven existing wells. The third issue is the reclamation plan. The fourth thing is transportation. This needs to be spelled out more clearly. It is very hazardous where Teater turns off Lower Bridge Road, and the site distance there needs to be fixed. The final thing missing from the 1985 decision was some kind of monitoring and disclosure. Part of what happened is that it has been decades and no one has been monitoring the reclamation. There needs to be a way to monitoring this. It is a huge, rural site and will be important. It can be great if done right, and can be really bad if it isn't. Commissioner Luke said the challenge is that there is not a not of incentive to clean up the site if you can't do something with it. The County does not have the expertise to do what DOGAMI does. There are sites that DOGAMI has overseen that have been done right. He is not sure how to get there. Mr. Grillo stated that a concept plan could be done with the site to address real traffic and real issues. Another way is to knock down portions of the site. Each area has its own challenges and problems. It would be helpful to get to that point orally and target the issues. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 13 of 25 Pages Commissioner Daly said he is frustrated because everyone sits around and talks but few have been to the site. The applicants have already done a tremendous amount to the site and spent a lot of money. It is time to make good decisions based on site visits. It is vital to know exactly what they are talking about. Mr. Grillo said he has not done one because he is a private citizen and it is private property. Written testimony was handed in from Sara Lee Lawrence and others who left the meeting. David Jenkins has been a resident of Eagle Rock, east of the mine site, for 17 years. He focused on present day imminent health threats at the mine site. A rezone at this site with known health hazards can present a lot of liability for Deschutes County. He said that new information from the EPA and Health Services talks about uncontrolled imminent health threats. The EPA said they did not test for respirable pollution health risks, and the health test did not talk about radiological results, just current use, which is surfacing mining. The use would be to human standards, not a mine. Representative Gene Whisnant wrote a letter about the validity of the report and the lack of relevant testing. The Operations Director for the EPA said they failed to heed an EPA directive regarding a superfund site. In fall of 2007, residents of the basin learned that a toxic waste incident occurred at this site. Fifty years of site history has not been disclosed. Residents went to Deschutes County to obtain all documents on the toxic waste incident. The DEQ had 1,000 documents, but the County had none. DOGAMI also provided key documents about the history of the site, prior to 1921 to present day health hazards. Health hazards discovered thus far, based on documents, show a 97-year old, 576- acre mine site that was never cleaned or inspected. From 1921 to 1963, the sole purpose was to mine and cook diatomaceous earth (D.E.). Beginning in 1921 topsoil was removed; twenty-five tons of D.E. was cooked seven days a week for 42 years. The D.E. now blows in the wind. It converts to a carcinogen. Six companies did this at this site, and there was between 1% to 5 % waste. Over 42 years this represents thousands of tons. This was never disclosed to nearby residents. This cooked waste is dangerous today because it does not biodegrade in soil or water and is a health hazard. The particulate size is dangerous to breathe, and can cause irreversible respiratory disorders. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 14 of 25 Pages Uncontrolled pollution from this site is intolerable. The DEQ says it is a public nuisance. The EPA and the DEQ and Health Services now know that this material was dumped there. The owners and applicants did not disclose this. No air monitoring was done to human standards, and no soil tests were done. The DHS is now recommending an appropriate air test be done. The DEQ said that soil samples would be necessary to test for this. No one knows where this material was dumped. He asked if there a long term plan to control pollution at this site. The owner has a limited license to water only 140 acres for 12 to 18 months. The owners refuse to honor a DEQ reclamation request. Building homes on a small portion will still allow prevailing winds to blow in the area. At this time he presented a videotape on this subject. It contained the following information. From 1976 to 1983, it was an uncontrolled toxic waste site. This was not allowed, but the DEQ did not monitor it. They allowed delivery of the toxic waste before verifying the soil could handle it. It is a vertically fractured soil, and the DEQ was warned not to irrigate. They did it anyway, and did not document it. DEQ employees realized the mistake and quit their jobs. Toxic waste then sat there for eight years. In 1977, the owners bought it and it sat there until the 1980's. Drums of toxic waste, some radioactive, a total 80 barrels were sitting there, leaking. Some were dumped on permeable soils. The DEQ did not test for any of this, which occurred on one acre of land at the site. The DEQ has said it was cleaned up, but PCB's have been found elsewhere. Residents in 2007 and 2008 found that power stations produced PCB's, and 45 tons of this material was found at the site. Commissioner Baney asked about the portion shown on fire in the video. Mr. Jenkins said there was a fire in the back of the building. The DEQ was called because there was dangerous material in those buildings; however, the DEQ said it was inside the building so there was no hazard. The PCB clean-up report said the substations were graded over, but further site investigation was recommended. This has not been done, and people are entering the site with no supervision. This land is 58 feet above the water table. In 1980 copper waste was dumped at the site; no documents state otherwise. It was reported to DOGAMI in September 2008 per someone working at the site, but it has not been looked for or found in the soil. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 15 of 25 Pages In 1983, a superfund site manager said the groundwater should be monitored. In November 2008, the Director of the EPA said that no documents state the groudnwater was monitored, but the State agency was supposed to do the monitoring. Residents were allowed to move nearby and tap into the same aquifer, but they were not aware of an imminent health threat. In 1983, prior to cleanup of the waste, solvents were located on the site. The soil under the 80 barrels was never tested and neither was the water under the site. The reason that the DEQ and hydrologists say it is unsafe is because the ground is vertically fractured and irrigation can contaminate the area. Two illegal solid waste operations were sited there in the 1990's and in 2006, with one in the same site as the development. The DEQ wanted a monitoring well after it was cleaned up. There are buried toxic waste lines, fuel lines, fuel sludge, creosote, barrels, PCB contamination and large pieces of solid waste recently graded over. It has all been there for decades. This site history must be disclosed to purchasers of property there. The Daniels Group did not include this information in their application and they have not entered into a voluntary cleanup agreement with the DEQ. This could all cause catastrophic problems. Public health should be the #I priority. Commissioner Daly asked if he tested his own well. Mr. Jenkins said it costs $600 and he would like the DEQ or EPA to do it for him. Ron Calkins is a resident of Lower Bridge Estates. His wife, son and he have lived there for four years, and did not know it was a hazardous waste site. He then talked about traffic considerations. It is unclear as to what the developer wants to do regarding entry on Lower Bridge Road. It is a long straight stretch; then there is a canyon, with a hazardous entry point. Buckhorn Road is efficient to get to Bend, but it is not paved. The County does keep it up, but it does not last long. He would like to see the developer have to pave Buckhorn Road. Also, getting onto Highway 126 is difficult. The mining tailings near the fire location were dumped close to the road. The ground is not natural dirt. Regardless of irrigation, the wind blows dirt down the road. He added that NW 43rd place is bad. A roundabout might work well there. Commissioner Luke said ODOT is changing access roads and there will be stacking. There will never be signal light at Lower Bridge, however. These changes should help. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 16 of 25 Pages Mr. Calkins stated that these traffic issues need to be addressed in some positive fashion. Dougal Haines wanted to note that he feels there is a lot of hope in this situation. He feels there is not as much polarization. There are serious issues, some predate the owners and others, and they need to get beyond assigning blame. There is a big problem here, and they need to unite to fix it. There needs to be a willingness that everyone is trying to achieve something good. Long-term the situation seems to be positive. Mr. Haines said that Tia Lewis stated that they are looking for a zoning change to finance remediation, and that there needs to be a financial incentive to make sure the investment will pan out. It is a calculated risk. Lots of people are sitting on property they had great hopes for. The applicants need to have assurances that there is potential for them, and they offer ideas that are clearer than those in the past. The ones that strike them the most definitely have to do with reclamation of the property. Photos from the Daniels group on sites that had problems are not the same, but they have worked with this type of situation. They admit that the projected photo of the ground with it looking green with vegetation is yet to be realized. But that is what they are talking about regarding reclamation. They are asking this body to consider the entire site; it can't just be a portion. There are already residents adjacent who are having a hard time with the dust and other issues. If there are 74 homes placed on the property, the people will be in the middle of the problem, so the overriding problem is how to deal with it. This body has the right to set standards; DOGAMI standards are very limited and may not apply to human habitation. They need some standards that will truly mitigate the blowing dust and what has been buried there. They need to bypass the blame. It will cost money to do it right. He suggested that it isn't just their work. Others need to work together, maybe through study groups or gatherings. It doesn't need a gold plated scenario but needs something that is workable. He suggested that there needs to be a test site. He knows that any place where soil was disturbed might look like an original landscape after 15 years. Six months or one year won't give much of an idea of what it will look like. It is viable but not a quick fix. The County should set up a period of monitoring at a test site for three to five years to see what happens. If it appears things can grow, it could stabilize the site. There are deep and disturbing underlying issues, so there needs to be a cooperative effort, monitored locally. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 17 of 25 Pages Commissioner Daly likes the idea of everyone working together. Those who are testifying against this proposal still want to get rid of the dust. There is a point when the cost exceeds any possible profit, so you walk away from it. The DEQ is worried about the dust, and so is the County. If this development is the best way to eliminate the problem, it might help. If they don't remediate the dust over the whole site, they won't sell any homes. The folks who live around there need to think about how to have everyone win. Mr. Haines said that there has been so much promised in the past and not delivered, that's why a lot of people are skeptical. The County should be able to provide some kind of ideas to help in this regard. Diane Lozito said there was talk about drilling where the houses would be. This is 640 acres. (She referred to a photo of the site.) There are 576 acres that have been disturbed. The pivot line is in the middle. They say residential will make the problems go away, but the only area to be remediated is 1/4 of the entire site. That doesn't help much. The other thing is that they have a limited license for 140 acres of water that expires in five years. They would only commit to 18 months of watering. There are two questions. Of course the seeds will sprout, but without water they will die. The site needs topsoil, nutrients and tons of water. They have talked about this, but it sounds like a failed plan, not a saving grace. Everything is short term. They need to test the entire site. There are test sites all over the site covered by boards. There is crystallite? It is a carcinogen. The DEQ did not answer any of the questions in this regard. If you excavate for 74 homes, with 74 wells and 74 drainfields, that is a ton of dust. When you break the crust of the soil, it makes it worse; 65% in open space is not wilderness, it is dusty earth. She doesn't see how any of this sounds good. She said they showed two projects they worked on. She would like to put the burden of proof on Daniels as to whether they actually were a part of those projects. D.R. Horton said they did the work. They need to compare apples to apples. She thinks they are trying to wiggle out of zoning. They only want to use part of it, but the whole thing should be reclaimed. Regarding overlay zones, it was originally EFU. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 18 of 25 Pages Commissioner Luke stated that there was never an underlying zone. It was mining reserve, which then went to mining. There was a small portion that was EFU. Zoning took place in the late 1960's and 1970's. There was not even a building department in 1973. The main zoning was always mining. Ms. Lozito said that two lots are zoned surface mining and EFU, lots 1505 and 1600. They have sandy loam soil, and she would like those to stay the same. There is also historical significance to one of them; the rock at Lower Bridge was used as an advertisement. It's right near where they want to build. Commissioner Daly said they made a movie there but it was not a good one. Commissioner Luke said it may be in the Wild and Scenic area, and approval needs to come from State Parks. Ms. Lozito said this plan conflicts with natural resources, Goal 5 under fish and wildlife, the winter deer range and threatened bull trout. This fractured soil per Professor Dalton shows that it is a hazardous level of 316, with high salinity. There is no soil to hold the D.E. in place. It goes down the ditch to the river, putting contaminants and high salt into the aquifer. Under the Clean Air Act, they never did the proper test that was requested of the DEQ. The EPA said the only test to determine if there is damage to lungs is a test done to national ambient air quality standards. Without that test they will never know. She has a pulmonary condition that creates a real health problem for her, and it is from breathing the air there. She asked that the Board look at ODOT's report. The roads are double lined and curved, so it is dangerous. An accident just happened there. The history of the road shows many hazards, and additional vehicles will cause even more problems. Due diligence needs to be done for the past and future by the DEQ, the EPA, the developers and the owners. She would love to tour the property to see if the solid waste is still there. It does not conform to the Wild and Scenic River rules; and some is RR-10 and 10 acres. A planned unit development would have no lot line setback rules, with homes on top of each other. Septic systems would be 54 feet over the aquifer, a nonconforming uses. They must conform to the Scenic River rule, with no high density. She purchased because of this. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 19 of 25 Pages Commissioner Luke said the lots have to be ten acres and there are setback requirements. Mr. Dunn said that it is not a good thing to have this kind of development next to agricultural. Mr. Groves said that there are options, and they could create two-acre homesites by leaving a lot of open space. This would require a conditional use permit. There is no plan in place today. Commissioner Luke asked if the land could be farmed. It is either RR-10, having the most number of homes, or EFU if it is farmable. Mr. Dunn? said that he can see it but has only been on the property a few times. It looks like it is just too rough for farming. Bringing in soil would help but is not affordable for pasture. There is not much level land there, just the reclaimed area. There are huge berms there still that will have to be moved. This will disturb the soil even more. The wind over the years has hardened what is there, and it is not very usable. He is worried about the health hazard potential. No other opposing testimony was offered. Commissioner Baney asked if there is a way to hear from the EPA or the DEQ in person on this issue. Commissioner Daly said that the Health Department and the DEQ were at a previous hearing, and there was some good testimony given then. Mr. Groves noted that these were not on the County record because they were held by other entities. Tia Lewis said she thinks there are some important distinctions. There is a definite distinction between the D.E. mineral and that type of mining versus the aggregate and sand and gravel mining, and the regulatory requirements of both. The D.E. mine predates the other. The aggregate mining in 1985 was the one being changed from resource, and it is the only portion named in the county site plan. The Hearings Officer's decision then references the 18 acres for sand and gravel. The portion of the site to be reclaimed was for sand and gravel extraction. Commissioner Baney asked if the 320 acres was for sand and gravel. Ms. Lewis said yes. They did not seek to mine that portion of the site for D.E. and that is the portion they have to reclaim. They aren't required to reclaim the D.E. portion. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 21 of 25 Pages Ms. Craghead said the area the mined was much smaller than the area that was rezoned. They only mined 18 acres. The map is missing after all these years, but they refer to the 18 acres only. The rest was disturbed for mining D.E. years ago, though, but no further mining was done. Ms. Lewis said another distinction is reclamation or dust control. Reclamation is planned for the smaller portion, but revegetation is planned for the rest. This watering and planting plan was approved by the DEQ, and had to go through DEQ review. They worked with all the agencies to get that temporary watering permit. There is blowing dust, but there have been no DEQ complaints since that site was revegetated. There is growth where the water is being applied. Monitoring of the plan is included in the proposal. She referred to the Newton memo, which attests to water quality testing. The wells have been tested and are clean, plus a downstream spring was also tested. They are all around the site. The ones currently producing water were tested, but others are capped at this time. Most are producing irrigation water. The tests were pretty comprehensive. Ms. Lewis said that there is a big distinction between revegetation and reclamation. (She referred to a map.) An award came from DOGAMI for reclamation efforts. Most of the issues are the blowing D.E. dust, and many of the property owners in the area are concerned about the dust. DOGAMI standards don't address revegetation. The applicants want the property to be attractive. If it is not revegetated, in reality it won't sell. The entire reclamation plan has been submitted and people need an opportunity to review it. The argument regarding transportation planning is not new. Residential development would mean fewer trips than surface mining zoning. Regarding the agricultural land on the property, there is nothing to contradict that the majority of the soils are nonagricultural. A Goal exception was not needed per the Hearings Officer, and there have been three decisions indicating that the soils have been demonstrated as non-agricultural. The property is not subject to Goal 3 protection. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 22 of 25 Pages The testimony by Mr. Jenkins is illustrative of the amount of agency involvement on the property over the years. This is not falling under the radar of these agencies, and they are reviewing information and complaints. They have been working with the applicants on the future development of the site. The record includes all of those documents from these agencies. The applicants are not trying to hide anything on the site; they want to know what is there as well. Ms. Craghead asked about the historic landmark question. Ms. Lewis said there was a wagon trail over the property at one time, but they are not aware of the rock issue. She will research it. They would like to enhance the cultural and historical amenities. Ms. Lewis said that Mr. Dunn had asked if the DEQ would conduct air quality testing; the DEQ had a consultant do this, who concluded that it is no more harmful than any other kind of dust. Commissioner Baney said that she thinks a letter from Representative Whisnant said it is indeterminate. Ms. Lewis said the agency says it is not; he might have been referring to the DHS study. With respect to some of the other testimony, she wants everyone to work together. That is the goal and the reason why they started with community meetings. They would like to have the site already clean before coming in so there would be a lot less fear of the unknown. But the reality is that it has been sitting there for over twenty years in its current condition. All of the agencies involved have had a chance to do something about it. It is a long process, but the reality is this proposal will help clean it up. Greg Daniels said he wanted to address the Board and the audience. He understands the challenges. When he looked at the property some years ago, the owners said they wanted it to be productive. The problems that existed then are still there today. The only way the system allows people qualified to do this type of development requires them to deal with governmental agencies and their rules and regulations. This testimony is critical in helping the Board understand what everyone wants, and he will have to live with those requirements. However, it has to make economic sense. It is a balancing act. He agreed that there needs to be better conditions than those that now exist. This is the only way to deal with the government and requirements. He feels they can do this as well as anyone, if it can be done, and at this point is willing to take up the challenge. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 23 of 25 Pages Commissioner Luke stated that the record is still open, and oral testimony will be taken on December 17 at 4:00 p.m. in the same location. Ms. Lewis said that the applicants are agreeable to continuing the testimony. They recognize that there is a new Commissioner coming in January and they would like to wrap up this issue before the end of the year if possible. Commissioner Luke stated that the Board will not presuppose anything. They will try to do this but there is a lot to learn. Commissioner Baney would like some additional people to attend. Commissioner Daly said he wants to do a site visit; he wants permission to enter the property. Ms. Craghead clarified that the hearing is being continued to 4:00 p.m. on December 17, and the written record is still open. The testimony will not be limited. Being no further discussion, Chair Luke adjourned the meeting at 9: 40 p.m. DATED this 3rd Day of December 2008 for the Deschutes County Board of Commissioners. ATTEST: I Recording Secretary ennis R. Lu e, Chair Tammy, aney, Ace Chair M6, a' I M. a y, Co issioner ic minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 24 of 25 Pages Attachments Exhibit A: Testimony cards Exhibit B: Staff report & Hearings Officer's decision Exhibit C: Information provided by the applicants Exhibit D: Other testimony: written & e-mails up to and including this hearing minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 3, 2008 Page 25 of 25 Pages ~ o I o { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 3, 2008 Name ~~Gl❑//1r~~f v~ Address/ Phone #s ❑ ° E-mail address 4" ❑ In Favor ❑ Neutral/Undecided Submitting written documents as part of testimony? Yes :Please give to the Recording Secretary. Opposed ❑ No Gam, ,E ' ^rr J o BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 3, 2008 N; Address '~15 Phone #s C, - o y/ i. E-mail address ❑ In Favor ❑ Neutral/Undecided Submitting written documents as part of testimony Yes Please give to the Recording Secretary. Opposed ❑ No 0 ~C~~rES can r~ a { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 3, 2008 Name OALU L _0EW CY Address 153q /\/W V Cis ~3 y G (,~Ktit) n12 9 ??o Phone #s 51-It- 312- 117q E-mail address ~~Ewey low-~~Ic4(~ t~ co,,~ In Favor F] Neutral/Undecided Submitting written documents as part of testimony? Yes Please give to the Recording Secretary. ZOpposed No r G n BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 3, 2008 Name K,(, 7 Phone #s E-mail address In Favor F] Neutral/Undecided F] Opposed Submitting written documents as part of testimony? 1:1 Yes Please give to the Recording Secretary. o { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 3, 2008 Name (A ~4< 1,j S Address -1 01l 0 W 133 2,8 P CAcr ~"~.c(~ s,rw 0 2 Pp a o x 2~ 'Y~Coda,~-~ 0 2 °E~1'L~ a Phone #s Sill q~3 93S c2 E-mail address Rb3CP -cQas , Co A^ In Favor 1-1 Neutral/Undecided a Opposed Submitting written documents as part of testimony? a Yes F]No Please give to the Recording Secretary. BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zo e Change Date: Dec. 3, 2008 Name `•~A~ r 1 / "212 . Address Phone #s - 6 5 E-mail address In Favor Neutral/Undecidedpposed Submitting written documents as part of testimony? . es ❑ No Please give to the Recording Secretary. CD BOARD OF COMMISSIONERS' MEETING { REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 3, 2008 Name V, I' U0 Address y_q; !;:i Phone #s E-mail address ❑ In Favor [;J Neutral/Undecided ❑ Opposed Submitting written documents as part of testimony? ❑ Yes ❑ No Please give to the Recording Secretary. T ? BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 3, 2008 Name Address Phone #s E-mail address ❑ In Favor ❑ Neutral/Undecided Submitting written documents as part of testimony? ❑ Yes Please give to the Recording Secretary. ❑ Opposed ❑ No ol, L3 ` BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 3, 2008 Name J~>06 ~ he❑ - Address Phone #s E-mail address ❑ In Favor ❑ Neutral/Undecided Submitting written documents as part of testimony? ❑ Yes Please give to the Recording Secretary. ❑ Opposed ❑ No 2 BOARD OF COMMISSIONERS' MEETING { REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 3, 2008 Name1 Address Phone #s E-mail address ❑ In Favor ❑ Neutral/Undecided ❑ Opposed Submitting written documents as part of testimony? ❑ Yes ❑ No Please give to the Recording Secretary. o~ L { BOARD OF COMMISSIONERS' MEETING - REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 3, 2008 Name L C e V Address Phone #s E-mail address In Favor ❑ Neutral/Undecided Submitting written documents as part of testimony? ❑ Yes Please give to the Recording Secretary. ❑ Opposed ❑ No o { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 3, 2008 Name I T) Ot)& u(c4 (J Address 6 :Phone #s Soil- 17V ~ E-mail address ❑ In Favor ❑ Neutral/Undecided Submitting written documents as part of testimony? ❑ Yes Please give to the Recording Secretary. ❑ Opposed 5~ No { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 3, 2008 Name Address } , 1 Phone #s E-mail address 4~ L4 t 4; U. ~ ;-I C,. ❑ In Favor ❑ Neutral/Undecided Opposed Submitting written documents as part of testimony? Yyes ❑ No Please give to the Recording Secretary. ,r- 1 Gam`' U o BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 3, 2008 Name Address Irk Phone #s E-mail address 1 1. -un 10 _N~ e~AA ~ jAA K ~ 1~~~.--• ❑ In Favor ❑ Neutral/Undecided pposed Submitting written documents as part of testimony? Yes ❑ No 74 Please give to the Recording Secretary. FE3 n Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ Staff Report The Deschutes County Hearings Officer will hold a Public Hearing on March 18, 2008 at 6:30 P.M. in the Barnes and Sawyer rooms of the Deschutes Services Building located at 1300 NW Wall Street in Bend, to consider the following request: FILE NUMBERS: ZC-08-1, PA-08-1 LOCATION: The property is identified on the County Assessor's Tax Map as 14-12, Tax Lots 1501, 1502, 1503, part of 1505, and 1600. APPLICANT: The Daniels Group, LLC 1111 Main Street, Suite 700 Vancouver, WA 98660 OWNER: Norman L. Wiegand, et al. 895 SW 23rd St. Redmond, OR 97756 ATTORNEY /PLANNER: Tia M. Lewis Mark Rust, AICP Schwabe, Williamson & Wyatt, PC 549 SW Mill View Way, Suite 101 Bend, OR 97702 REQUEST: Comprehensive plan text and map amendment and zone change from Surface Mining to Rural Residential to allow redevelopment of extensively mined, non-agricultural property, including a nonresource designation. STAFF CONTACT: Will Groves, Senior Planner APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1 2. Chapter 18.52, Surface Mining Chapter 18.60, Rural Residential zone * Section 18.52.200, Termination of the Surface Mining Zoning and Surrounding Surface Mining Impact Area Combining Zone ZC-07-5 Page 1 of 31 Quality Services Performed zuith Pride 2. Chapter 18.136, Amendments * Section 18.136.020, Rezoning Standards B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance Chapter 22.20, Review of Land Use Action Applications * Section 22.20.040, Final Action in Land Use Actions C. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan 1. Chapter 23.100, Surface Mining D. Oregon Administrative Rules, Chapter 660 Division 12, Transportation Planning * OAR 660-12-060, Plan and Land Use Regulation Amendments 2. Division 15, Statewide Planning Goals and Guidelines 3. Division 23-0180, Mineral and Aggregate Resources FINDINGS OF FACT: A. Location: The property is identified on the County Assessor's tax map as 14-12, tax lots 1501, 1502, 1503, part of 1505, and 1600. Tax Lot 1501 has an assigned address of 70420 NW Lower Bridge Way, Terrebonne. B. Zoning and Plan Designation: All tax lots appear to be designated "Surface Mining" on the Comprehensive Plan Map, though the exact boundaries are unclear. The mine is designated site 461 in the county's Goal 5 inventory of significant mineral and aggregate resource sites. Tax lot 1501: 249.1 acres zoned Surface Mining (SM), including 9.8 acres in Landscape Management Combining Zone (LM) Tax Lot 1502: 188.1 acres zoned SM, including 82.3 acres zoned LM Tax Lot 1503: 64.4 acres zoned SM, including 64.4 acres zoned LM Tax Lot 1505: Only 42.1 acres of this 72.47 acre tax lot are subject to this application. The most southerly portion of this lot adjacent to Teater Road and zoned EFU is not subject to the proposed zone change. Tax Lot 1600: 10.6 acres total includes 9.6 acres of Exclusive Form Use 1.0 acre zoned Flood Plain, 10.6 acres zoned LM, and 10.6 acres zoned SMIA C. Site Description: The 556.9 acre subject property is a geologically unique tract straddling Lower Bridge Road about 6 miles north of Terrebonne, as shown on the Site Map, submitted as Exhibit 1 and on the aerial photograph, submitted as Exhibit 2. To an ZC-07-5 Page 2 of 31 observer driving Lower Bridge Road, the site is notable for the chalky white appearance of the exposed diatomite layers. As illustrated on the submitted Site Map, the subject property includes Tax Lots 1501, 1502, 1503, 1505, 1600, but excludes the EFU-zoned portion of Tax Lot 1505 bordering Teater Road. The subject property can be divided into five geographic regions: eastern, northern, Deep Canyon, western, and central. The land includes four general landscape types: quarry operations (old and recent), hills/buttes (natural and formed), plains (unmined, mostly natural vegetation), and canyons and drainages (natural vegetation, unmined). The eastern region is east of Lower Bridge Road, and extends east to a steep slope that descends to the Deschutes River. It is generally level and covered with overburden rock apparently removed from the former diatomite mining operations. The property drops approximately 100 feet in elevation to the Deschutes River. The River is lined with wetlands shown in the National Wetlands Inventory Cline Falls map. The northern region stretches west along the river from Lower Bridge to Deep Canyon, then south along the southern rim of Deep Canyon. The ground is relatively level, except for steep canyons that reach down to the Deschutes and Deep Canyon. North of the diatomite mining area, it is a relatively undisturbed "plains" landscape with mature juniper. The subject property is separated from the River in this area by Tax Lot 14-12 1509, owned by the Oregon Parks and Recreation Department. Deep Canyon is a small canyon with a spring and a seasonal pond that drain to the Deschutes River. Two unimproved roads cross the canyon. Across the northern bridge is the western region, a flat area formerly mined for diatomite. The central region, a quarry landscape, includes about half of the subject property area. The area was extensively mined for diatomite, and several derelict buildings and miscellaneous debris piles remain. A thick diatomite layer and stockpiles make up much of this area, which is accessible only with an all-terrain vehicle. Dry man-made ponds and a pump house are located in the western area of the central region. This section of subject property is traversed by several unimproved roads. This reach of the Deschutes River is designated as a Federal Wild and Scenic River and an Oregon Scenic River. A steep bank limits pedestrian access to the river. However, the river is accessible from Lower Bridge, and from the public park near the bridge. Staff recommends that the Hearings Officer request a list and descriptions of structures and other man-made features with a map to gain a better understanding of the site. D. Soils: Approximately 80% of the soils on the site are Class 7 and 8. Steve Wert, a consulting soil scientist, visited the site and conducted preliminary research of the soils present on the site. He also spoke with National Resource Conservation Service about the property. His findings are summarized in a letter dated October 4, 2006: "According to NRCS maps, the great majority of the property does not even have a "soil type," but is classified as a "land type" called "Unit 97" which is rock and gravel pits. Unit 97 is rated Class 7 and 8, and NRCS will stand by that rating." However, not all of the property is class 7 or 8. The following table summarizes soils data by tax lot. Approximate Acreage of Soil Type by Tax Lot ZC-07-5 Page 3 of 31 Tax Lot NRCS Land / Soil Classes Approximate Zoning Soil Type acreage' 1501 97 7 & 8 159 acres SM, SMIA, LM 81 F 7 & 8 24 acres 249.1 138A 6, not prime 48 acres acres 138B 6, not prime 1.1 acres 71A 6, prime if irrigated 12.2 acres 71 B 6, prime if irrigated 1.8 acres 31A 6, rime if irrigated 3.3 acres 1502 97 7 & 8 160 acres SM, SMIA, LM, 188.1 81 F 7 & 8 9 acres FP acres 138A 6, not rime 19 acres 1503 97 7 & 8 42 acres SM, SMIA, LM, 64.4 31 B 6, prime if irrigated 18 acres FP, EFU acres 71 A 6, rime if irrigated 3.4 acres 1505 97 7 & 8 39 acres SM, SMIA, LM, 41.2 81 F 7 & 8 2 acres FP acres 1600 138A 6, not prime 8.2 acres SMIA, FP, EFU 10.6 81 F 7 & 8 2.4 acres acres TOTAL 7 & 8 79 % = 438 acres 553.4 6, not prime 14% = 76 acres acres 6, rime if irrigated 7% = 39 acres E. Surrounding Zoning and Land Uses: This section describes zoning and land uses within a 2-mile radius of the center of the subject property. Surrounding zoning in the area of the subject property includes Exclusive Farm Use-Lower Bridge (to the north, west and south), Exclusive Farm Use-Terrebonne (to the east and further to the south), Surface Mining (to the northeast), Rural Residential (to the east and southeast) and Flood Plain associated with the Deschutes River. The Landscape Management combining zone extends along the Deschutes River. The subject property is predominantly surrounded by active agricultural lands, as :shown in the 2008 Google Earth aerial photo included in the record. The surface mining zoned land to the northwest appears to be in agricultural production. Properties to the west and southwest are sparsely developed with rural residences. Within a 3-mile radius there are nearly 700 parcels with over 400 residences. F. Mining History: The subject property has a long, inconsistently documented mining history. Diatomite (also known as diatomaceous earth or "D.E." or Dacalite) is a chalk- like, sedimentary rock consisting mainly of the ancient skeletons of dead diatoms, which are single-celled aquatic plants. Diatomite mining began on the property prior to the 1920s. Large scale production began in 1936. The Great Lakes Carbon Company mined the property from 1944 to 1961. The mining history between 1966 and 1980 is unclear. The Oregon Department of Geology and Mineral Industries (DOGAMI) file for 1 Acreages are based on area measurements taken from the Deschutes LAVA GIS. Due to measurement error, these acreages may not equal the deed or Assessor's acreages for the tax lots. ZC-07-5 Page 4 of 31 this site begins in 1980. That file indicates that multiple companies have mined the site, mostly for diatomite but also for aggregate. Although multiple mining permits were issued over the years, various companies were cited for violating environmental laws, mining permits, or operating without permits. By 1980 Deschutes Valley Farms owned the site and leased it to Northwest Diatomite. In January 1982, DOGAMI exempted Mid-Oregon Ready Mix from reclamation requirements because the land was a mine prior to the effective date of the reclamation rules. Mid-Oregon Crushing and Mid-Oregon Ready Mix were extracting aggregate by 1985. Various diatomite and gravel extraction activities occurred in the subsequent years. By 1994, E.A. Moore was extracting, screening and crushing gravel on site. Several DOGAMI inspections occurred over the years, which found reclamation plans being implemented. By 2006, DOGAMI was ready to close the file on the site. A Limited Exemption Closure Plan was submitted in late July, 2006. On July 31st DOGAMI closed the file on the site. Due to incomplete DOGAMI records and an apparent history of unpermitted mining, the total quantity of aggregate and mineral removed from the site during over 80 years of mining is unclear. G. Zoning History: In 1985, 339 acres of the subject property was rezoned from Surface Mining Reserve to Surface Mining. The applicants apparently anticipated that diatomite mining would become economically viable again because a processing plant was being constructed in Malheur County, which would enable the applicant to export it. The Hearings Officer found that there was little local demand for diatomite, but that export of the product after off-site processing partially justified the rezone. In 1988, the Deschutes County Goal 5 Aggregate Inventory identified the site as an aggregate resource (as opposed to a mineral resource, which includes diatomite) of 350,000 cubic yards. In the ESEE analysis for site 461, the Board identified the key values that form the basis for the application of SM zoning to the mine site. These include the importance of aggregate resources to development in Deschutes County, the value to the County economy terms of materials and jobs, the presence of an estimated 350,000 cubic yards of aggregate on the site, and that the site is located near a major roadway for highway maintenance and construction jobs. Relevant Previous Land Use Decisions: CU-74-156 - This record contains plan information for a solid and liquid waste disposal site on the subject property. Staff believes this application was approved, as solid and liquid waste storage occurred on the property. A variety wastes, including hazardous wastes were stored on the site and subsequently removed. This is discussed more fully later in this Staff Report. MP-80-96 - Separated modern tax lots 1503 and 1505, as Parce12, and 1506, as Parcel 3 from the remainder of the mining site. ZC-85-3 - A zone change from surface mining reserve to surface mining on tax lots 1501, 1502, 1600, and 704. This decision did not apply to the entire site, but was limited to 339 acres. Condition 3 of this decision required a reclamation plan. ZC-07-5 Page 5 of 31 SP-85-23 - A site plan to allow surface mining, aggregate mining, and rock crushing on tax lots 1501, 1502, 1600, and 704. This decision included reclamation specifications, The applicant has stated that the topsoil is stockpiled and will be replaced on the area mined approximately 12 inches deep. The applicant proposed to motorgrade the site and seed it with fortress red fescue, Idaho fescue, and mixed bunchgrass at a rate of 40 pounds per acre planted in the fall with fertilizer and mulch. The applicant also proposes to plant evergreens for shade and windbreaks on the site. This is a summary of the applicant submitted reclamation plan, attached as Exhibit C to the Hearings Officer Decision in SP-85-23. Staff believes that this required reclamation has not been performed and is unaware of any code enforcement complaint undertaken to enforce this reclamation. Condition 1 of this decision required an updated reclamation plan to include measures to prevent materials from eroding into the Deschutes River. Staff has been unable to locate this updated reclamation plan. ESEE Analysis #461 - On October 24, 1989 the Board of County Commissioners rezoned the remainder of the 660-acre site (comprised of modern tax lots 1501, 1502, 1503, and 1507) to SM. This decision contains information about the quality and quantity of aggregate and mineral resources on the property. MP-90-74 - Divided historic tax lots 1501, 1507 and 1508 into two legal lots of 66 and 254 acres. All of the above files are incorporated into this record by reference. H. Proposal: The applicant requests approval of a plan amendment to change the designation of the subject property from Surface Mine (SM) and Agriculture (AG) to Rural Residential Exception Area (RREA) and to remove Surface Mining Site 461 from the county's Goal 5 inventory of significant mineral and aggregate resource sites. The applicant also requests approval of a zone change from SM and EFU-LB to RR-10 for the subject property. The removal of the SM zoning on the subject property also would remove the existing Surface Mining Impact Area Combining Zone (SMIA) zoning on property located within one-half mile of the SM Zone. Staff notes that the site map submitted as Exhibit 1 shows areas presently zoned Flood Plain (FP) as part of this rezoning proposal. Discussions with the applicant have clarified that this proposal is not intended to rezone FP zoned lands. 1. Public/Private Agency Comments: The Planning Division mailed notice to several agencies and received the following comments: Deschutes County Transportation Planner: I have reviewed the submitted application materials which would provide for a plan amendment from Surface Mining (SM) to Rural Residential RR10) on 557 acres about six miles north and west of Terrebonne. The applicant's traffic study finds the intersection of Lower Bridge Way/U.S. 97 will not meet either the performance standards of Deschutes County or ODOT with or without this development. The County sets a standard of Level of Service (LOS) D for existing roads while the applicable ODOT volume/capacity (V/C) ratio is 0.70 ZC-07-5 Page 6 of 31 for the highway and 0.80 for the side street based on functional classification and posted speed. There is a programmed ODOT project in 2009 to reconfigure the Lower Bridge Way/97 and 11th Street/97 intersections. While this will improve the operations of these intersections, it will not address the capacity issue as the project focuses more on storage issues on the side streets. The traffic analysis at Figure 5 on page 10 indicates a LOS F for Lower Bridge Way/97 in 2022 with the critical move being the left out from Lower Bridge to go north on 97. The development does not add any trips to that failing move. As Figure 4 indicates, the rezone will increase the number of northbound left turns from U.S. 97 onto Lower Bridge Way from 11 to 31. The worksheets indicate the V/C of this move will degrade from 0.82 under existing zoning to 0.85 under the proposed zoning. Based on the above, I would recommend the application be denied based on the provisions of DCC 17.16.115(1)(1 and 2). The proposal would have a significant effect on transportation facilities as defined by the Transportation Planning Rule (TPR) at Oregon Administrative Rule (OAR) 660-012-060(2)(C). If the development is approved, the applicant will need to provide mitigation sufficient to avoid further degradation of the intersection as required by OAR 660-012-060(3)(c). As this intersection is under the jurisdiction of ODOT, I would recommend deferring to the state to describe and define the appropriate mitigation. On March 3, 2008 the Transportation planner added: The TIA analysis was done for approximately 55 units, but in today's paper it said they can build 74 units under the cluster development. If that's true, then the traffic analysis should be redone to reflect that and the intersections be reanalyzed. Staff notes that the potential for 74 units represents a theoretical maximum number of units on the property. Staff believes the applicant should provide an analysis based on the maximum number of units. If fewer units are in fact developable, such evidence should be presented to the Hearings Officer. DEQ: On February 4, 2008, the Department (DEQ) received your notice for the chance to comment on a proposed land-use zone change regarding the Diatomaceous Earth (DE) Mine site located north of Lower Bridge Way west of Terrebonne. The proposal would change the zoning from surface mining (industrial site) to rural residential. Department staff has reviewed the Burden of Proof Statement. On Page 3, last Paragraph, it states, "DEQ visited the site the week of May 8, 2006 and did not have any concerns". While Department staff did visit the site, no statements were made about concerns at that time. There are, in fact, a number of issues that should be considered: Our primary concern regarding the proposed zone change is that when a previous cleanup was conducted at the site it was based on the industrial land- use of the property. The proposed action would change the zoning to rural residential. The property owner and developer will need to demonstrate that the site is cleaned up to the degree that it is suitable for residential land-use. The Daniels Group should conduct additional environmental evaluation of past historical activities (including the clean-up) to insure that the site is safe for ZC-07-5 Page 7 of 31 residential use. The Department's Voluntary Clean-Up Program is presently in contact with The Daniels Group to pose this issue. Hazardous Waste Program files show that an inspection of the site was conducted on April 26, 2006 and violations were documented [see attached Pre- Enforcement Notice (PEN) PEN-HW-ERB-2006-14084, dated May 8, 2006]. The violations (Class I and Class II) included hazardous waste, used oil, air quality (open burning prohibited materials) and solid waste violations. On June 19, 2006, the Department received a letter (dated June 13, 2006, attached) from the property owner regarding the corrective actions to the violations. Because corrective actions were taken and the owners were cooperative, the Department issued a letter dated November 21, 2006, regarding the withdrawal of the PEN (letter attached) and noted that the owner should consider the PEN a Warning Letter. There have been a number of past and recent dust complaints regarding the site from near by residents. On January 4, 2008, the Department sent the owners of the property a Notice of Nuisance Determination (attached) because of chronic visible dust emissions problems at the site. Presently, the Daniels Group is working with the Department on preventing dust from blowing around and off the site. On January 15, 2008, Daniels Group submitted a Lower Bridge Road Dust Mitigation Project plan (attached). The crystalline silica content in an outcrop sample of the DE ore contains: quartz bulk 0.3% and cristobalite bulk 0.2%. Dust blowing off of the DE site should be minimized because crystalline silica can cause or aggravate respiratory health problems. On January 23, 2008, the Department submitted a letter (attached) regarding comments on the Reclamation Project the Daniels Group is conducting at the former mine site. We believe the end result of this project will help resolve the dust problem at the site. We are, however, concerned and interested in successful interim steps to minimize visible dust emissions at the site. The site was once regulated by the Department as a solid waste disposal site (1973 through 1977): Deschutes Valley Farms Sanitation Permit #1062. The Department has a Solid Waste file on activities at this site. In the early 1980s the site, then called the Deschutes Valley Industrial Waste Clean-Up Site, participated in Oregon's Voluntary Clean-Up Program. Please refer to the Preliminary Assessment report on the Deschutes Valley Sanitation site (attached dated December 30, 1987). It describes the history and what was cleaned up at the site. Also attached is a letter (dated January 29, 1985) from the DEQ Director that the clean-up at the site was completed to the levels necessary for land zoned for industrial use. DOGAMI - DOGAMI comments on this application are limited to: any future extraction of aggregate material in excess of 5,000 cubic yards in any 12-month period is limited to on-site use for development of the property. No Comment: Deschutes mailed notice, but did not receive a response from or received a response of no comment from: Redmond Fire and Rescue, ODOT, Watermaster, and Oregon State Parks. J. Public Notice and Comments: The Planning Division mailed individual written notice of the applicant's proposal and the public hearing to the owners of record of all property located within 750 feet of the subject property. In addition, notice of the public hearing was published in the "Bend Bulletin" newspaper, and the subject property was posted ZC-07-5 Page 8 of 31 with a notice of proposed land use action sign on February 2, 2008. Public comment indicated that the sign may have been posted in a location not visible to the public. As of the writing of this Staff Report, numerous public comment letters have been received. These letters have identified concerns regarding dust (including health concerns specific to DE dust), chemical contamination of the site, radiological contamination of the site, site reclamation, traffic impacts, aesthetic impacts of the existing mine and structures, water quality, water rights, and aesthetics of future development. Public comments have also questioned if a new ESEE analysis or Goal 5 exception would be required. While staff believes that neither of these is necessary, Staff requests the Hearings Officer to make findings on this issue. All of the letters received to date are incorporated by reference K. Lot of Record: As of the writing of this staff report, the applicant has not submitted legal lot of record information. Staff recommends the Hearings Officer request this information at the hearing. CONCLUSIONS OF LAW: PLAN AMENDMENT FINDINGS: The applicant has requested approval of a plan amendment to change the plan designation of the subject property from Surface Mining and Agriculture to Rural Residential Exception Area, and to remove Surface Mining Site 461 from the county's Goal 5 inventory of significant mineral and aggregate resource sites. At the outset, it is useful to review the plan designation history of the subject property. 1. Plan Designation History. In the late 1980's the Land Conservation and Development Commission's (LCDC's) acknowledgement of the county's comprehensive plan provisions addressing mineral and aggregate resources under Goal 5 was reversed and remanded by the Court of Appeals in Coats v. LCDC, 67 Or App 504 (1984). Pursuant to a subsequent LCDC order the county undertook a lengthy process to inventory mineral and aggregate resources in the county, to develop a plan to preserve and protect those resources, and to amend the county's comprehensive plan and zoning ordinance to adopt the inventory and measures to protect sites. These plans were adopted through several ordinances and included placement of Site 461 on the inventory, adoption of a site-specific ESEE (Economic, Social, Environmental and Energy) analysis for Site 461, and adoption of ordinances designating and zoning the subject property for surface mining, on October 24, 1989. 2. Current Plan Designation. The subject property is currently designated SM and AG (Tax lot 14-12 1600 only). The applicant argues that no exception to Goal 3, Agricultural Lands, is required for the proposed plan amendment from SM to RREA. This is discussed below. 3. Applicable Comprehensive Plan Provisions. The comprehensive plan does not include approval standards for plan amendments. Staff and the applicant have identified the following plan policies they believe are relevant to the proposed plan amendment from Surface Mining and Agriculture to Rural Residential Exception Area. ZC-07-5 Page 9 of 31 A. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan 1. Chapter 23.24, Rural Development Section 23.24.020, Goals. A. To preserve and enhance the open spaces, rural character, scenic values and natural resources of the County. FINDINGS: The proposed plan amendment, in itself, will not adversely affect any open spaces, scenic values, or spoil rural character, but instead will create an opportunity to redevelop and mitigate existing adverse conditions of the site following mining and industrial operations,. The present condition of the site adversely affects the scenic value of the area with rusting structures and extensive unreclaimed mine areas. Any future development, not included in that application, would be required to conform to development standards for Rural Residential (RR- 10) zoned lands, that are designed to preserve and enhance the open spaces, rural character, and scenic values of the County. Moreover, future development of any structures in the LM zone will be subject to individual site plan review to ensure the protection of the scenic values associated with the Deschutes River. The removal of site 461 from the County's surface mining inventory would preclude access to diatomaceous earth and aggregate materials on the site. However, the applicant has argued that these resources are no longer present in quantities economically viable for extraction. This issue is discussed in greater depth below. B. To guide the location and design of rural development so as to minimize the public costs of facilities and services, to avoid unnecessary expansion of service boundaries, and to preserve and enhance the safety and viability of rural land uses. FINDINGS: The applicant states that a future developer, and not the public, will bear costs of extending facilities to the property. Public services such as police and fire already serve the area. Low density residential development allowed in the RR-10 zone does not require urban services such as sewer and water, as those needs can be served by on-site systems. Service boundaries will not be expanded. The applicant's traffic study finds the intersection of Lower Bridge Way/U.S. 97 will not meet either the performance standards of Deschutes County or ODOT with or without this development. Based on this fact, the Deschutes County Transportation Planner has recommend the application be denied based on the provisions of DCC 17.16.115(1)(1 and 2). The proposal would have a significant effect on transportation facilities as defined by the Transportation Planning Rule (TPR) at Oregon Administrative Rule (OAR) 660-012-060(2)(C). If the development is approved, the applicant will need to provide mitigation sufficient to avoid further degradation of the intersection as required by OAR 660-012-060(3)(c). Staff believes that, under this goal, a number of environmental concerns must be evaluated to establish this proposal preserves and enhances the safety of rural land uses. Historically, the subject property has been a mining and waste storage site. A 1987 report by the Oregon Department of Environmental Remedial Action indicates that: The following waste types were disposed of at the site: solvent sludge ZC-07-5 Page 10 of 31 (contaminated with lead, PCBs) and caustic sand. The sludge may have contained organic pigments which is the probable source of lead. Fifty six hundred gallons of sludge were manifested to the facility and 796 drums were removed during the cleanup. Most of the drums contained caustic sand at pH 14. One drum sampled contained glycerol (1,213- Propanetriol). A total of 106 55-gallon drums were found to be radioactive and sent to Hanford. Multiple cleanup operations were undertaken and on January 29, 1985 DEQ wrote a letter to Precision Castparts stating that the site was cleaned up and it would not be necessary to place restrictions on the site's use. However, DEQ has repeatedly raised the issue that the site's previous cleanup operations were performed and certified for industrial use of the site and the site may not yet be suitable for residential use. The applicant has included an analysis of the paper record performed by Maul Foster & Alongi, Inc. This analysis concludes that available documents and reports for the site indicate that environmental cleanup actions effectively removed contaminated materials from the property. DEQ also comments that on April 26, 2006 and violations were documented including hazardous waste, used oil, air quality (open burning prohibited materials) and solid waste violations. Because corrective actions were taken and the owners were cooperative, the Department issued a letter dated November 21, 2006, regarding the withdrawal of the violation notice and noted that the owner should consider the violation notice a warning letter. Staff notes that while specific contamination identified in the 1987 report may or may not have been sufficiently removed in advance of residential use, other environmental hazards may exist at the site. Staff would like to draw particular attention to the possibility of yet undocumented waste and hazards at the site generated in association with the mining. Prior to 1970, best management practices for hazardous waste disposal often consisted of on-site burial. Older mining site often have buried waste, metal and petroleum contamination of soils and groundwater, and physical hazards. Given the long and complex history of the site, Staff and DEQ would be interested to know the results of a Phase I Environmental Site Assessment2. Moreover, since there is a known history of chemical contamination, Staff also anticipated a Phase II Environmental Site Assessment3 2 A Phase I Environmental Site Assessment is a report prepared for a real estate holding which identifies potential or existing environmental contamination liabilities. The analysis, often called a Phase I ESA, typically addresses both the underlying land as well as physical improvements to the property; however, techniques applied in a Phase I ESA never include actual collection of physical samples or chemical analyses of any kind. Scrutiny of the land includes examination of potential soil contamination, groundwater quality, surface water quality and sometimes issues related to hazardous substance uptake by biota. The examination of a site may include: definition of any chemical residues within structures; identification of possible asbestos containing building materials; inventory of hazardous substances stored or used on site; assessment of mold and mildew; and evaluation of other indoor air quality parameters. Actual sampling of soil, air, groundwater and/or building materials is typically not conducted during a Phase I ESA. The Phase I ESA is generally considered the first step in the process of environmental Due Diligence. (http://en.wikipedia.orglwikilPhase_I Environmental Site _Assessment) 3 Phase II Environmental Site Assessment is an investigation which collects original samples of soil, groundwater or building materials to analyze for quantitative values of various contaminants. This investigation is normally undertaken when a Phase I ESA determines a ZC-07-5 Page 11 of 31 would be submitted. While neither of these common investigations are required under Deschutes County Code, Staff is uncertain how the Hearings Officer or DEQ will determine that the site is presently safe for residential use without these investigations. Ultimately, Staff believes this issue must be resolved by a letter from DEQ stating the site, in its entirety, is safe for residential use without any further active management prior to approval of this application. Public comments have raised a number of questions regarding water issues. It is unclear that the applicant has sufficient water rights to implement an effective dust mitigation or revegetation and reclamation plan. No recent studies of water quality have been performed on the site to determine if known or yet unidentified chemical contamination on the subject property has reached groundwater. Also, it is presently unclear if the drilling of wells on the site could puncture geological barriers to the movement potentially contaminated groundwater. Finally, under a maximum future development scenario, 74 homes and associated wells could be established on the property. These wells could significantly impact the local motion of groundwater and the mobilization of potential groundwater contamination. Staff recommends the Hearings Officer request additional information on water rights and potential groundwater contamination to provide a basis for findings under this criterion. There have been a number of past and recent dust complaints regarding the site from near by residents. On January 4, 2008, DEQ sent the owners of the property a Notice of Nuisance Determination because of chronic visible dust emissions problems at the site. On March 3 and 4 of 2008 high winds led to a major dust event with several complaints being sent to DEQ. The record indicates that the applicant has developed a dust mitigation plan and is working in coordination with DEQ to mitigate fugitive dust from the site. A goal of this plan is to achieve no visible emissions from the site. The applicant's environmental consultant states that long-term, chronic exposure to most types of dust can cause adverse health effects. The dust of Diatomaceous Earth (DE) can be of particular concern, crystalline silica content in an outcrop sample of the DE ore contains quartz bulk 0.3% and cristobalite bulk 0.2%. EPA documents states that "The causal relationship between inhalation of dust containing crystalline silica and silicosis, a chronic inflammatory and fibrotic lung disease, is well established4." However, the applicant's environmental consultant concludes that available evidence indicates that only exposure to crystalline silica can induce silicosis. The freshwater DE at the subject property contains primarily amorphous silica, a form that is less toxic than crystalline silica. Although toxicity associated with dust exposures is complex and partially determined by particle size, shape, surface configurations, and other factors, it is unlikely that the freshwater DE at the property has properties that could cause adverse health effects under reasonably likely exposure conditions. Staff believes that a verification of this conclusion by DEQ would need to be in the record, as neither Staff nor the Hearings Officer has the expertise to evaluate this important analysis. Again, Staff believes that the site, in its entirety, must be safe for residential use without any further active management prior to approval of this application. Staff believes that this safety can be established through thorough site investigation, remediation as-needed, and dust mitigation, as evaluated and approved by DEQ. likelihood of site contamination. The most frequent substances tested are petroleum hydrocarbons, heavy metals, pesticides, solvents, asbestos and mold. (ibicl 4 http://www.epa.gov/ncea/pdfs/0604.pdf ZC-07-5 Page 12 of 31 Staff also notes that the safety of the area will be enhanced through improved access and an increased presence in the area thereby thwarting potential for illegal activity. C. To provide for the possible long-term expansion of urban areas while protecting the distinction between urban (urbanizing) land and rural lands. FINDINGS: The proposed zone change and plan amendment would not preclude the possible long-term expansion of urban areas, although such expansion to the subject property is not reasonable foreseeable. Any future development, not included in that application, would be required to conform to development standards for Rural Residential (RR-10) zoned lands, that are designed to protect the distinction between urban (urbanizing) land and rural lands. Section, 23.24.030, Policies. Residential/recreational development. Because 91 percent of the new County population will live inside an urban area, with only 3,039 new rural lots required, and in light of the 17,377 undeveloped rural tracts and lots as well as the energy, environmental and public service costs, all future rural development will be stringently reviewed for public need before approval. As a guideline for review if a study of existing lots within three miles of the proposed development indicates approximately 50 per cent or more of those lots have not had structures constructed thereon, then the developer shall submit adequate testimony justifying additional lots in that area. This will permit development in areas where such is needed (other policies considering energy, public facilities, safety and other development aspects shall also be considered) while restricting future division in areas where many undeveloped lots already exist. FINDINGS: An analysis by staff of existing lots within three miles of the subject property indicates approximately 50 per cent or more of those lots have had structures constructed on them. Staff notes that this analysis is typically conducted at the time of subdivision application. Zone Parcels Parcels with at least one structure EFUTE 92 33 EFUSC 16 3 EFULB 113 54 MUA10 388 292 RR10 75 23 SM 9 0 Total 693 405 58% 2. Chapter 23.60, Transportation a. Section 23.60.010, Transportation * * * The purpose of DCC 23.60 is to develop a transportation system that meets the needs of Deschutes County residents while also ZC-07-5 Page 13 of 31 considering regional and state needs at the same time. This plan addresses a balanced transportation system that includes automobile, bicycle, rail, transit, air, pedestrian and pipelines. It reflects existing land use plans, policies and regulations that affect the transportation system. FINDINGS: The Deschutes County Transportation Planner has recommended the application be denied based on the provisions of DCC 17.16.115(1)(1 and 2). The proposal would have a significant effect on transportation facilities as defined by the Transportation Planning Rule (TPR) at Oregon Administrative Rule (OAR) 660-012-060(2)(C). If the development is approved, the applicant will need to provide mitigation sufficient to avoid further degradation of the intersection as required by OAR 660-012-060(3)(c). Although this section's purpose is not mandatory criteria, Staff believes approval of this application with unmitigated traffic impacts would run counter to the stated purpose. 3. Chapter 23.68, Public Facilities a. Section 23.68.020, Policies 1. Public facilities and services shall be provided at levels and in areas appropriate for such uses based upon the carrying capacity of the land, air and water, as well as the important distinction that must be made between urban and rural services. In this way public services may guide development while remaining in concert with the public's needs. 3. Future development shall depend on the availability of adequate local services in close proximity to the proposed site. Higher densities may permit the construction of more adequate services than might otherwise be true. Cluster and planned development shall be encouraged. 9. New development shall not existing or planned facilities, should be made aware of facilities in rural areas. be located so as to overload and developers or purchasers potentially inadequate power FINDINGS: Any future development is unlikely to overload existing or planned public facilities, excluding roads. Concerns regarding transportation facilities are discussed above. The existing rural residential development in the area indicates that public facilities and services are available. Future development of the property can be served by private wells and septic systems. Utility lines and facilities can be located so as not divide any existing farm units. Public comments have raised a number of questions regarding water issues. It is unclear that the applicant has sufficient water rights to implement an effective dust mitigation or revegetation and reclamation plan. No recent studies of water quality have been performed on the site to determine if known or yet unidentified chemical contamination on the subject property has reached groundwater. Also, it is presently unclear if the drilling of wells on the site could ZC-07-5 Page 14 of 31 puncture geological barriers to the movement potentially contaminated groundwater. Finally, under a maximum future development scenario, 74 homes and associated wells could be established on the property. These wells could significantly impact the local motion of groundwater and the mobilization of potential groundwater contamination. Staff recommends the Hearings Officer request additional information on water rights and potential groundwater contamination to provide a basis for findings under this criterion. 4. Chapter 23.88, Agricultural Lands Section 23.88.020, Goal. To preserve and maintain agricultural land. FINDINGS: As noted above, this proposal would result in the conversion of approximately 39 acres of "high value if irrigated" farmland to rural residential use. It is unclear if residential use on the property would increase or decrease adverse impacts to nearby agricultural operations. Impacts imposed on agricultural uses by adjacent residential uses typically include vandalism, trespassing, disturbance to livestock, and dust. However, development of the project is likely to result in better dust suppression, to the benefit of nearby agricultural operations. a. Section 23.88.030, Zoning Policies. 1. All lands meeting the definition of agricultural lands shall be zoned Exclusive Farm use, unless an exception to State goal 3 is obtained so that the zoning may be Multiple Use Agriculture or Rural Residential. 2. Lands not meeting the agricultural lands definition but having potential for irrigation according to the Bureau of Reclamation Special Report - Deschutes Project, Central Division, Oregon, although presently without water, shall receive exclusive farm use zoning. FINDING: As explained at length below, the subject property, as a whole, is not "agricultural land." The property does not have potential for irrigation according to the Bureau of Reclamation Special Report - Deschutes Project, Central Division, Oregon. A. OAR 660, Division 33, Agricultural Land. 660-033-0020 (1)(a) "Agricultural Land" as defined in Goal 3 includes: (A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as predominantly Class I-IV soils in Western Oregon and I-VI soils in Eastern Oregon; (B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a), taking into consideration soil fertility; suitability for grazing; climatic conditions; existing and future availability of water for farm irrigation purposes; existing land use patterns; technological and energy inputs required; and accepted farming practices; and ZC-07-5 Page 15 of 31 (C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands. (D) Land in capability classes other than I-IV/I-VI that is adjacent Ito or intermingled with lands in capability classes I-IV/I-VI within a farm unit, shall be inventoried as agricultural lands even though this land may not be cropped or grazed; FINDINGS: The threshold inquiry for determining whether land is "agricultural" is whether the soils are predominately class I-VI. Miles v. Bd. of Comm. of Clackamas County, 48 Or App 951, 955, 618 P2d 986 (1980); Flury v. Land Use Bd. of Appeals, 50 Or App 263, 267 ('1981). Because a vast majority of the property is class VII & VIII soils, it is not agricultural. In Wetherell v. Douglas County, - LUBA _ (LUBA No. 2006-122, October 9, 2006), LUBA stated: 'As we explained in DLCD v. Klamath County, 16 Or LUBA 817, 820 (1988) there are two ways a county can justify a decision to allow nonresource use of land previously designated and zoned for farm or forest uses. One is to take and exception to Goal 3 (Agricultural Lands) and Goal 4 (Forest Lands). The other is to adopt findings which demonstrate the land does not qualify either as forest lands or agricultural lands under the statewide planning goals. When a county pursues the latter option, it must demonstrate that despite the prior resource plan and zoning designation, neither Goal 3 or Goal 4 applies to the property. Caine v. Tillamook County, 25 Or LUBA 209, 218 (1993); DCLD v. Josephine County, 18 Or LUBA 798, 802 (1990)." In this case, the evidence demonstrates that the subject property does not qualify as either high value agricultural or forest land. The applicant states that the soil studies conducted by Wert & Associates confirm that approximately 20% of soils are class VI, in fact only 5% of those are considered high value with irrigation. Staff is uncertain what soil studies have been undertaken on the property. It appears from the record that the submitted Wert & Associates study only consists of a review of the NRCS soil maps. Previous similar applications (PA-04-4/ZC-04-2) supported by analysis Wert & Associates have included extensive on-the-ground analysis. However, Staff review of the NRCS soil maps comes to a similar conclusion that approximately 21 % of soils are class VI, and only 7% of those are considered high value with irrigation. The record demonstrates the subject property is not irrigated and the land is not necessary to permit farm practices on adjacent agricultural lands, or intermingled with lands in a farm unit. The Forage Report concludes that the property "is not suited for profitable, accepted agricultural use." Deschutes County has approved zone changes without a Goal 3 exception under similar circumstances. In both PA-04-4/ZC-04-2 and PA-07-02/ZC-70-02 the applicant demonstrated that a Goal 3 exception was not required because the subject property's soils did not meet the definition of agricultural land. Interpreting the definition set forth above, the hearings officer found that whether the property was "agricultural land" depended on 1) whether the soils are predominately Class VII or VIII and 2) whether other characteristics of the property exclude it from consideration of agricultural land. The Hearings Officer concluded that the subject ZC-07-5 Page 16 of 31 property did not constitute agricultural land as defined in Goal 3, was not subject to protection under Goal 3, and therefore an exception to Goal 3 was not required. For very similar reasons, this property is not "agricultural land." 1. Soil Classification. The vast majority of the soils (approximately 80%) on the subject property are Class VII or VIII, due to natural conditions. This conclusion is supported by a letter from Wert & Associates. In PA-04-4, the hearings officer found that Steve Wert is "highly qualified to render an opinion on the nature of the soils Submitted exhibit 11 illustrates that the majority of the site is classified as "Unit 97," which is rock and gravel pits. Mr. Wert reported that the land surface consists of three types. First, in areas where the diatomite was mined, the soils consist of cemented sands and gravel. Second are areas were some diatomite remains but has been moved. These "spoils" hold moisture but barely support some plants. According to NRCS, diatomite is not a soil but rather a "geologic material." Third are the undisturbed portions of the site that, as is discussed further below, contains some Class VI soils. Mr. Wert concluded that these facts are enough to find the site non-agricultural. The aerial photo submitted as Exhibit 2 illustrates the extent of the mining on the property. In summary, the subject property consists predominately of Class VII and VIII, i.e. not "agricultural," soils. • Other characteristics. The subject property is not agricultural based on the other factors listed below. • Soil fertility: As explained above, the vast majority of the soils are Class VII or worse. Suitability for grazing: The Rangeland Inventory and Forage Study Report (Forage Report), prepared by Gene Hickman and submitted as Exhibit 14, confirms that the subject property does not produce adequate forage for livestock grazing. Due to low forage yields, lack of range improvements and poor layout, he concluded that "net annual income from livestock grazing would no doubt be negative. The property would not support other agricultural enterprises either: no natural ecological potential for pine forestry exists, dryland farming is not feasible, and irrigated agriculture is not possible due to lack of irrigation. The applicant states that Mr. Hickman is qualified to render this opinion as an expert in the field of rangeland management and ecology with 40 years experience. Climatic conditions: The forage report states that the central Oregon climate makes farming without irrigation impossible. Staff notes that dryland grazing occurs in many locations in the County, although this site may be unsuitable for dryland grazing. • Existing and future availability of water for farm irrigation purposes: The applicant has stated that the subject property does not possess any water rights and the likelihood of obtaining water for farm irrigation purposes is very low to nonexistant. Staff has raised concerns elsewhere that that water rights needed reclamation are also not certain. • Existing land use patterns: The Site Vicinity Map, submitted as Exhibit 12, shows that the subject property is surrounded by a mix of rural residential and agricultural lands. The property has been in mining or semi-industrial uses since at least the 1920s, and a large rural residential subdivision was established south east of the property in the 1980s. Rezoning the property would simply extend that RR-10 ZC-07-5 Page 17 of 31 zoning northwest. The subject property is surrounded by agriculture on irrigated properties to the west, north and south. • Technological and energy inputs required: The forage report states that no known technological or energy input can make the land farmable. • Accepted farming practices: Agriculture in the region consists mostly of hay and alfalfa and grazing. The forage report states that, due to insufficient soils, irrigation, and forage, the subject property can be used for none of these. For these reasons, the subject property does not constitute "agricultural land" as defined in Goal 3, is not subject to protection under Goal 3, and therefore the proposed plan amendment and zone change do not require an exception to Goal 3. This should be confirmed or denies by the Hearings Officer. B. OAR 660, Division 6. Goal 4 Forest Land. Goal 4 defines "forest land" as follows" Forest lands are those lands acknowledged as forest lands as of the date of adoption of this goal amendment. Where a plan is not acknowledged or a plan amendment involving forest lands is proposed, forest land shall include lands which are suitable for commercial forest uses including adjacent or nearby lands which are necessary to permit forest operations or practices and other forested lands that maintain soil, air, water and fish and wildlife resources. FINDINGS: The subject property is not and never has been zoned for forest use. The detailed soil study prepared by Steve Wert included an analysis of the subject property's soils for production of merchantable tree species, and shows the soil units identified on the subject property are not listed in the NRCS' Woodland Productivity soils table, and therefore are not considered suitable for the production of wood crops by the NRCS. Finally, the record indicates the predominant tree species on the property are juniper trees which historically have not had commercial value and have not been harvested commercially either on the subject property or on nearby lands. 5. Chapter 23.96, Open Space, Areas of Special Concern, and Environmental Quality a. 23.96.020, Goals. 1. To conserve open spaces and areas of historic, natural or scenic resources. FINDINGS: The conversion of the subject property from Agriculture and Surface Mining to Rural Residential use will have some adverse impact on the conservation open spaces and areas of historic, natural or scenic resources. Staff is uncertain if the transition form surface mining to residential use would adversely impact the conservation of open spaces as stated in this goal. Staff notes, however, that portions of the subject property have not been subject to surface mining and the development of these areas would adversely impact the conservation of open space. Any future development of the ZC-07-5 Page 18 of 31 property would be limited to a density of 1 unit per 10 acres, conserving significant open space. If a future applicant applied for a cluster or planned development, allowed at a density of 1 unit per 7.5 acres, that development would be required to maintain 65 percent of the property in open space. The property is adjacent to the Deschutes River. The area adjacent to the River is in a Landscape Management combining zone. This zone includes special setbacks and aesthetic protections. This section of the Deschutes River is also designated as a Federal Wild and Scenic River. While development near the Deschutes River could adversely impact natural and scenic resources, a number of interlocking local, state, and federal protections will minimize potential impacts. 2. To maintain and improve the quality of the air, water and land resources of Deschutes County. FINDINGS: Environmental concerns at the site are discussed above and incorporated here by reference. a. Section 23.96.030, Policies 10. As part of subdivision or other development review, the County shall consider the impact of the proposal on the air, water, scenic and natural resources of the County. Specific criteria for such review should be developed. Compatibility of the development with those resources shall be required as deemed appropriate at the time given the importance of those resources to the County while considering the public need for the proposed development. FINDINGS: This plan policy is not applicable to the proposed plan amendment because the applicant is not seeking subdivision approval or development review. B. Oregon Administrative Rules 1. OAR 660, Division 12, Transportation Planning Rule (1) Where an amendment to a functional plan, an acknowledged comprehensive plan, or a land use regulation 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 a functional classification system; ZC-07-5 Page 19 of 31 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; (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 acceptable performance standard identified in the TSP or comprehensive plan. (2) Where a local government determines that there would be a significant effect, compliance with section (1) shall be accomplished through one or a combination of the following: (a) Adopting measures that demonstrate allowed land uses are consistent with the planned function, capacity, and performance standards of the transportation facility. (b) Amending the TSP or comprehensive plan to provide transportation facilities, improvements or services adequate to support the proposed land uses consistent with the requirements of this division; such amendments shall include a funding plan or mechanism consistent with section (4) or include an amendment to the transportation finance plan so that the facility, improvement, or service will be provided by the end of the planning period. (c) Altering land use designations, densities, or design requirements to reduce demand for automobile travel and meet travel needs through other modes. (d) Amending the TSP to modify the planned function, capacity or performance standards of the transportation facility. (e) Providing other measures as a condition of development or through a development agreement or similar funding method, including transportation system management measures, demand management or minor transportation improvements. Local governments shall as part of the amendment specify when measures or improvements provided pursuant to this subsection will be provided. (3) Notwithstanding sections (1) and (2) of this rule, a local government may approve an amendment that would significantly affect an existing transportation facility without assuring that the allowed land uses are ZC-07-5 Page 20 of 31 consistent with the function, capacity and performance standards of the facility where: (a) The facility is already performing below the minimum acceptable performance standard identified in the TSP or comprehensive plan on the date the amendment application is submitted; b) In the absence of the amendment, planned transportation facilities, improvements and services as set forth in section (4) of this rule would not be adequate to achieve consistency with the identified function, capacity or performance standard for that facility by the end of the planning period identified in the adopted TSP; (c) Development resulting from the amendment will, at a minimum, mitigate the impacts of the amendment in a manner that avoids further degradation to the performance of the facility by the time of the development through one or a combination of transportation improvements or measures; (d) The amendment does not involve property located in an interchange area as defined in paragraph (4)(d)(C); and (e) For affected state highways, ODOT provides a written statement that the proposed funding and timing for the identified mitigation improvements or measures are, at a minimum, sufficient to avoid further degradation to the performance of the affected state highway. However, if a local government provides the appropriate MOT regional office with written notice of a proposed amendment in a manner that provides ODOT reasonable opportunity to submit a written statement into the record of the local government proceeding, and MOT does not provide a written statement, then the local government may proceed with applying subsections (a) through (d) of this section. FINDINGS: This rule is applicable to the applicant's proposal because it involves an amendment to an acknowledged plan. The proposed plan amendment would change the designation of the subject property from SM and EFU-LB to RREA, and the applicant has requested approval of a zone change from SM and EFU to RR10 for the subject property. As of the writing of this Staff Report, the applicant has not supplied legal lot of record information for the subject property. Staff believes the site contains a minimum of two legal lots of record. This means that 2 or more home sites could be developed on the subject property without further land use review. Staff believes that the site is eligible for up to 74 home sites as a cluster or planned development. The applicant's traffic study finds the intersection of Lower Bridge Way/U.S. 97 will not meet either the performance standards of Deschutes County or ODOT with or without this development. The County sets a standard of Level of Service (LOS) D for existing roads while the applicable ODOT volume/capacity (V/C) ratio is 0.70 for the highway and 0.80 for the side street based on functional classification and posted speed. There is a programmed ODOT project in 2009 to reconfigure the Lower Bridge Way/97 and 11th Street/97 intersections. While this will improve the operations of these intersections, it will not address the capacity issue as the project focuses more on storage issues on the side streets. ZC-07-5 Page 21 of 31 The traffic analysis at Figure 5 on page 10 indicates a LOS F for Lower Bridge Way/97 in 2022 with the critical move being the left out from Lower Bridge to go north on 97. The development does not add any trips to that failing move. As Figure 4 indicates, the rezone will increase the number of northbound left turns from U.S. 97 onto Lower Bridge Way from 11 to 31. The worksheets indicate the V/C of this move will degrade from 0.82 under existing zoning to, 0.85 under the proposed zoning. Based on the above, the Deschutes County Transportation Planner has recommend the application be denied based on the provisions of DCC 17.16.115(1)(1 and 2). The proposal would have a significant effect on transportation facilities as defined by the Transportation Planning Rule (TPR) at Oregon Administrative Rule (OAR) 660-012-060(2)(C). If the development is approved, the applicant will need to provide mitigation sufficient to avoid further degradation of the intersection as required by OAR 660-012-060(3)(c). 2. OAR 660, Division 15, Statewide Planning Goals and Guidelines FINDINGS: Goal 1, Citizen Involvement. The proposed plan amendment satisfies this goal because the Planning Division provided public notice of the applicant's proposal through individual mailed notice to affected property owners, posting of the subject property with a notice of proposed land use action sign, and published notice of the public hearing in the "Bend Bulletin" newspaper. In addition, two public hearings will be held before the proposed plan amendment is approved, one before the Hearings Officer and one before the Deschutes County Board of Commissioners (board). The staff report and Hearings Officer decision will provide the public with information concerning the proposed plan amendment. Goal 2, Land Use Planning. Staff believes that this goal is met because at least two public hearings will be held on the proposed plan amendment and zone change. Goal 3, Agricultural Lands. As discussed in this report above, the applicant argues that an exception to Goal 3 is not required for the subject property. Goal 4, Forest Lands. This goal is not applicable because the subject property is not zoned or designated for forest use. Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. The applicant's proposal would remove the subject site from the county's Goal 5 inventory of significant mineral and aggregate resource sites. As discussed in detail in this report, the applicant argues that the subject site no longer contains a resource meeting the minimum threshold for significance in the new Goal 5 administrative rules, and therefore the applicant's proposal is consistent with Goal 5. Staff has suggested the Hearings Officer request additional information to confirm this determination. Goal 6, Air, Water and Land Resources Quality. While staff has identified a number environmental quality concerns, Staff believes that Goal 6 is primary procedural and does not provide a basis for analyzing these impacts. Goal 7, Areas Subject to Natural Disasters and Hazards. The subject property contains areas subject to flooding along the Deschutes River, as shown on FIRM panel 41017C0300E. This proposal does not include any development in floodplain areas. Any future development in ZC-07-5 Page 22 of 31 these areas would be required to comply with the provisions of DCC 18.96, which has been reviewed and approved by FEMA. Goal 8, Recreational Needs. This goal is not applicable because the proposed plan amendment and zone change do not reduce or eliminate any opportunities for recreational facilities either on the subject property or in the impact area. Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout the state for a variety of economic activities. This goal is met because the subject property no longer constitutes a significant mineral and aggregate resource, and therefore allowing it to be redesignated and rezoned for rural residential development will not have adverse economic impacts. Goal 10, Housing. Goal 10 defines needed housing as being housing within urban growth boundaries. This property is outside the urban growth boundary, and therefore Goal 10 is not applicable. Goal 11, Public Facilities and Services. This Goal requires planning for public services, including public services in rural areas. Goal 11 has generally been held to prohibit the extension of urban services (namely sewer and water) to rural lands outside urban growth boundaries. The present application will not result in the extension of urban services because the low-density development allowed in the RR-10 zone does not require urban services. Any residential development will be of a density that can be served by on-site septic and individual wells. Goal 12, Transportation. This goal is to "provide and encourage a safe, convenient and economic transportation system." It is implemented through OAR 660-012, commonly known as the Transportation Planning Rule. The applicant's traffic study finds the intersection of Lower Bridge Way/U.S. 97 will not meet either the performance standards of Deschutes County or ODOT with or without this development. Based on this fact, the Deschutes County Transportation Planner has recommend the application be denied based on the provisions of DCC 17.16.115(1)(1 and 2). The proposal would have a significant effect on transportation facilities as defined by the Transportation Planning Rule (TPR) at Oregon Administrative Rule (OAR) 660-012-060(2)(C). If the development is approved, the applicant will need to provide mitigation sufficient to avoid further degradation of the intersection as required by OAR 660-012-060(3)(c). Goal 13, Energy Conservation. Goal 13 is to conserve energy. Planning Guideline 3 notes that "Land use planning should, to the maximum extent possible, seek to recycle and re-use vacant land..." Surface mining activities have ceased on the site and it has been vacant for some years. The applicant proposes re-use of the land consistent with this guideline, and thus this proposal is consistent with Goal 13. Goal 14, Urbanization. This goal is not applicable because the applicant's proposal does not affect property within an urban growth boundary and does not promote the urbanization of rural land. Goals 15 through 19. These goals, which address river, ocean, and estuarine resources, are not applicable because the subject property is not located in or adjacent to any such areas or resources. ZC-07-5 Page 23 of 31 ZONE CHANGE FINDINGS: The applicant has requested approval of a zone change from EFU-LB and SM to RR-10 for the subject property and to remove SM Site 461 from the county's Goal 5 inventory of significant mineral and aggregate resource sites. C. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance Chapter 18.52, Surface Mining Zone (SM) a. Section 18.52.130, Site Reclamation Plan. Prior to the start of mining activity, a site reclamation plan shall be submitted and approved which demonstrates that the mineral and aggregate extraction site can be reclaimed for a subsequent beneficial land use consistent with the designation of such subsequent use in the surface mining element of the Comprehensive Plan. FINDINGS: The applicant had submitted a reclamation plan as Exhibit C to SP-85-23. A. When a site reclamation plan is required by DOGAMI, the site reclamation plan shall be approved by DOGAMI. To the extent practicable, review of the site reclamation plan shall be conducted jointly between DOGAMI and the County. B. When a site reclamation plan is not required by DOGAMI, the site reclamation plan shall be approved by the County in conjunction with the site plan review described in DCC 18.52.070. The County shall review such site reclamation plans for consistency with the site-specific ESEE analysis in the surface mining element of the Comprehensive Plan and the standards and conditions set forth in DCC 18.52.110 and 18.52.140. The County also shall follow the applicable DOGAMI standards and criteria for a site reclamation plan. FINDINGS: Areas east of Lower Bridge Road were subject to a DOGAMI reclamation plan and have been reclaimed in accordance with that plan. The mine site west east of Lower Bridge Road did not have a DOGAMI required reclamation plan. However, a County reclamation plan was required under SP-85-23, and was attached to that decision as Exhibit C. b. Section 18.52.200, Termination of the Surface Mining Zoning and Surrounding Surface Mining Impact Area Combining Zone A. When a surface mining site has been fully or partially mined, and the operator demonstrates that a significant resource no longer exists on the site, and that the site has been reclaimed in accordance with the reclamation plan approved by DOGAMI or the reclamation provisions of DCC 18, the property shall be rezoned to the subsequent use zone ZC-07-5 Page 24 of 31 identified in the surface mining element of the Comprehensive Plan. FINDINGS: The County's inventory of significant mineral and aggregate sites describes SM Site 461 as follows: Site No. Legal Description Type Quantity Quality 461 141300-00-01500, 1501, 1502, 1503, 1505, 1600 Aggregate Diacolite 350,000 y3 2,000,000 y3 Good Staff interprets subsection (A) to require the operator to demonstrate that: 1) the site has been fully or partially mined; 2) a significant resource no longer exists on site; and 3) the site has been reclaimed in accordance with DOGAMI, or DCC Section 18.52.130 standards. The applicant argues that all three conditions are satisfied here. As discussed in detail below Site 461 has been mined. The section below discusses significant resource status. In the Hearings Officer's previous decision in Stott (PA-98-12/ZC-98-6), the Hearings Officer held that the provisions of OAR 660 Division 23 regarding compliance with Goal 5 are relevant to this question. OAR 660-023-0250 provides in pertinent part: (1) This division replaces OAR 660, division 16, except with regard to cultural resources, and certain PAPAs and periodic review work tasks described in sections (2) and (4) of this rule. Local governments shall follow the procedures and requirements of this division or OAR 660, Division 16, whichever is applicable, in the adoption or amendment of all plan or land use regulations pertaining to Goal 5 resources. The requirements of Goal 5 do not apply to land use decisions made pursuant to acknowledged comprehensive plans and land use regulations. (2) The requirements of this division are applicable to PAPAs initiated on or after September 1, 1996. OAR 660, Division 16 applies to PAPAs initiated prior to September 1, 1996. For purposes of this section "initiated" means that the local government has deemed the PAPA application to be complete. (3) Local governments are not required to apply Goal 5 in consideration of a PAPA unless the PAPA affects a Goal 5 resource. For purposes of this section, a PAPA would affect a Goal 5 resource only if: (a) The PAPA creates or amends a resource list or a portion of an acknowledged plan or land use regulation adopted in order to protect a significant Goal 5 resource or to address specific requirements of Goal 5; . The Hearings Officer held a plan amendment and zone change to "de-list" and rezone a surface mining site constitutes a "PAPA," and therefore the provisions of OAR 660-023-0180 concerning mineral and aggregate resources apply to such an application to the extent they reasonably can be applied to a decision to remove a site from the county's adopted inventory. The Hearings Officer further found OAR 660-023-180(3) identifies the pertinent standards for determining "significance." This paragraph provides: ZC-07-5 Page 25 of 31 (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 any one 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) The material meets local government standards establishing a lower threshold for significance than subsection (a) of this section; or (c) The aggregate site was on an inventory of significant aggregate sites in an acknowledged plan on September 1, 1996. The aggregate resource is significant if it meets one of the three criteria. Subsection (b) is not applicable because the local government has not established lower standards. Subsection (c) is not applicable to PAPAs requesting removal of a site from the acknowledged inventory. See PA-98-12 and ZC-98-6, PA-04-4 at page 30 (submitted as Exhibit 15) and PA-06-2 at page 14 (submitted as Exhibit 19). Therefore, the aggregate resource is significant only if it meets all the criteria in subsection (a). The criteria in subsection (a) require that the aggregate on site: 1) meets ODOT specs for air degradation; 2) abrasion; 3) sodium sulfate soundness; and 4) be more than 500,000 tons. The Aggregate Resource Assessment Report, prepared by GeoDesign, Inc. and submitted as Exhibit 7 ("Aggregate Report") concludes that subject site does not satisfy the subsection (a) criteria because it fails sodium sulfate soundness requirements and contains less than 500,000 tons of aggregate. Based on a site-specific analysis, the Aggregate Report estimates the quantity of the aggregate at 211,000 cubic yards. Assuming a tons-per-cubic yard ratio of 2. 1, the Report finds 443,100 tons of aggregate on site, less than the "significant" threshold above. Staff uncertain if the submitted Aggregate Resource Assessment Report is a complete assessment of the quantity or quality of aggregate resources on the subject property. No test pit was dug over 12 feet below ground surface. The average test pit depth was 7.1 feet. Staff notes that the 1974 geologic study, included in CU-74-156, integrated local well logs to a depth of up to 405 feet. Staff recommends the Hearings Officer request information comparing and contrasting the present and historic geologic reports to determine what information to use as a basis for findings in this section. The Aggregate Resource Assessment Report estimates that the site contains 443,000 tons of aggregate. Given that this is within 13% of the threshold 500,000 tons, Staff recommends that the Hearings Officer request additional information on the methodology, certainty, and margin of error of this estimate. Staff is concerned that the aggregate's failure to meet sodium sulfate soundness requirements is based on only two test pits samples located within 350 feet of each other. It is unclear that these two samples are representative of the aggregate material on the over 500-acre site. Both ZC-07-5 Page 26 of 31 samples are from an area mapped as overburden. No samples were tested from the area mapped alluvial sand and gravel. Staff recommends the Hearings Officer request additional information to determine if the aggregate on the site meets ODOT specifications. Diatomite is a mineral, not aggregate, resource. Neither local law nor the OARs define what a significant "mineral" resource is. Staff is unaware of any surface mining zone change decisions in which the county defined a "significant mineral resource." In contrast to aggregate, diatomite is not useful in local development. Rather, it is simply a commodity sold on a global market for mostly industrial uses. The applicant has provided information in the submitted burden of proof that there is no economic incentive to mine diatomite on the subject property due to ample global supply, low profitability, less expensive substitute materials, and undesirable environmental impacts. The applicant argues that the diatomite resource is not significant for these reasons. Staff requests the Hearings Officer make specific findings on this issue. The Deschutes County Code requires that the site be reclaimed in accordance with a reclamation plan approved by DOGAMI or the reclamation provisions of DCC 18. DOGAMI has found the site to be reclaimed according to its standards. As the DOGAMI memo explains, 61 acres on tax lots 1503 and 1505 were covered by an operating permit for gravel extraction, and reclamation has been completed there. The overburden stockpiles there are revegetated, stable, and may remain in place until used for on-site development. The former D.E. mining site (west of lower Bridge Road) is exempt from reclamation requirements under ORS 517.770 because it was part of a mine that existed before 1972. Reclamation: Site Plan approval SP-85-23 included reclamation specifications. Below is a summary of the applicant submitted reclamation plan, attached as Exhibit C to the Hearings Officer Decision in SP-85-23. The applicant has stated that the topsoil is stockpiled and will be replaced on the area mined approximately 12 inches deep. The applicant proposed to motorgrade the site and seed it with fortress red fescue, Idaho fescue, and mixed bunchgrass at a rate of 40 pounds per acre planted in the fall with fertilizer and mulch. The applicant also proposes to plants evergreens for shade and windbreaks on the site. Staff believes that this required reclamation has not been performed. Condition 1 of SP-85-23 also required an updated reclamation plan to include measures to prevent materials from eroding into the Deschutes River. Staff has been unable to locate this updated reclamation plan. For these reasons it is Staff's opinion that the applicant has not met the rezoning criteria of DCC Section 18.52.200(A). This should be confirmed or denied by the hearings officer. B. Concurrent with such rezoning, any surface mining impact area combining zone which surrounds the rezoned surface mining site shall be removed. Rezoning shall be subject to chapter 18.136 and all other applicable sections of this title, the Comprehensive Plan and Deschutes County Code Title 22, the Uniform Development Procedures Ordinance. FINDINGS: Should this zone change be approved, it will also remove the surface mining impact area combining zone which surrounds the rezoned surface mining site. 2. Chapter 18.136, Amendments ZC-07-5 Page 27 of 31 a. Section 18.136.020, Rezoning Standards The applicant for a quasi-judicial rezoning must establish that the public interest is best served by rezoning the property. Factors to be demonstrated by the applicant are: A. That the change conforms with the Comprehensive Plan, and the change is consistent with the Plan's introductory statement and goals. FINDINGS: In previous Hearings Officer's decisions, it has been held that comprehensive plan goals and policies do not constitute mandatory approval criteria for quasi-judicial zone changes, but rather are implemented through the zoning ordinance, and therefore if the proposed zone change is consistent with the applicable provisions of the zoning ordinance it also will be consistent with the plan. The applicant has argued that he public interest is best served by taking the subject property out of mining use. Due to increased rural residential development in the area, and decreased value and demand for D.E., the applicant has argued that DE mining is no longer compatible with the area or desirable for the landowners. Rezoning for residential use will provide incentive and the economic resources to clean up the aesthetic and environmental impacts of decades of mining. B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. FINDINGS: The applicant is proposing a zone change from Surface Mining to Rural Residential (RR). The purpose of the RR zone, set forth at DCC 18.60.10 is: The purposes of the Rural Residential Zone are to provide rural residential living environments; to provide standards for rural land use and development consistent with desired rural character and the capability of the land and natural resources; to manage the extension of public services; to provide for public review of nonresidential uses; and to balance the public's interest in the management of community growth with the protection of individual property rights through review procedures and standards. FINDINGS: The proposed zone change is consistent with this purpose statement because the purpose of the zone change is to create a rural residential living environment consistent with the rural character and capabilities of the land and resources. Staff believes that in order for the subject property to be appropriate as a living environment, environmental concerns raised elsewhere in this Staff Report would need to be resolved. The Hearings Officer should confirm or deny this. C. That changing the zoning will presently serve the public health, safety and welfare considering the following factors: ZC-07-5 Page 28 of 31 FINDINGS: Staff believes that in order for the proposed zone change to presently serve the public health, safety and welfare, environmental concerns raised elsewhere in this Staff Report would need to be resolved. The Hearings Officer should confirm or deny this. 1. The availability and efficiency of providing necessary public services and facilities. FINDINGS: All utilities are available and currently serving other nearby properties, including the RR-10 zoned subdivision to the southeast, and adequate County road frontage is available. However, Staff believes that this criterion cannot found to be met until the intersection failure at Lower Bridge Way/U.S. 97, identified by the County Transportation Planner, is resolved. Public comments have raised a number of questions regarding water issues. It is unclear that the applicant has sufficient water rights to implement an effective dust mitigation or revegetation and reclamation plan. No recent studies of water quality have been performed on the site to determine if known or yet unidentified chemical contamination on the subject property has reached groundwater. Also, it is presently unclear if the drilling of wells on the site could puncture geological barriers to the movement potentially contaminated groundwater. Finally, under a maximum future development scenario, 74 homes and associated wells could be established on the property. These wells could significantly impact the local motion of groundwater and the mobilization of potential groundwater contamination. Staff recommends the Hearings Officer request additional information on water rights and potential groundwater contamination to provide a basis for findings under this criterion. 2. The impacts on surrounding land use will be consistent with the specific goals and policies contained within the Comprehensive Plan. FINDINGS: The applicant has stated that rezoning the property will not adversely impact surrounding property because residential use is consistent with the existing residential uses adjacent to the subject property, and will not increase adverse impacts on agricultural uses on other nearby properties. Staff believes that it is unclear if residential use on the property would increase or decrease adverse impacts to nearby agricultural operations. Impacts imposed on agricultural uses by adjacent residential uses typically include vandalism, trespassing, disturbance to livestock, and dust. However, development of the project is likely to result in better dust suppression, to the benefit of nearby agricultural operations. D. That there has been a change in circumstances since the property was last zoned, or a mistake was made in the zoning of the property in question. FINDINGS: There have been several changes in circumstances, and new information that shows that mistaken assumptions were the premise of the current zoning. Part of the subject property was zoned Surface Mining in 1985, and the remainder in 1989. The 1985 zoning focused on only the D.E. resource, and was premised on the assumption that D.E. would be economically productive for export. At that time the property was zoned Surface Mine Reserve, and the applicable Comprehensive Plan assumed that land so designated "will ZC-07-5 Page 29 of 31 ultimately be mined." The applicable Plan also lowered the burden of proof for changing the zoning to Surface Mining because "the material here sought to be mined consists of non- aggregate materials which are most probably to be used for export as there is currently little local demand." In spite of low local demand, the Hearings Officer found that the potential to export D.E. satisfied "the need question." Applicants were "in the process of negotiating large scale contracts for the delivery of [D.E.]" and the county found that construction of a processing plant in Malheur County would "enable exportation by the applicants." Because the site had already been used for D.E. mining, the Hearings Officer found that rezoning would :;imply facilitate more use and exportation of the resource. However, circumstances have changed since 1985. Because the identified global supply of D.E. will satisfy global demand for centuries, the Lower Bridge Road site is not needed. Environmental regulation and fuel costs have increased, while profits for D.E. have decreased. Therefore, according to the applicant mining D.E. from the site is no longer economically viable. The second rezoning, as part of the ESEE analysis for site 461, in 1989-1990 focused on the site's aggregate (as opposed to a mineral) resource. It followed the 1988 Deschutes County Goal 5 Aggregate Inventory, which identified an aggregate resource of 350,000 cubic yards. It is unclear from the record how this amount was estimated. In the ESEE analysis for site 461, the Board identifies the key values that form the basis for the determination of SM zoning for the mine site. These include the importance of aggregate resources to development in Deschutes County, the value to the County economy terms of materials and jobs, the presence of an estimated 350,000 cubic yards of aggregate on the site, and that the site is located near a major roadway for highway maintenance and construction jobs. Neither the mine location nor the importance of aggregate resources to Deschutes County have changed since the last zoning of the property. However, the current estimate of aggregate resources on the property has fallen to 211,000 cubic yards. Also, the current Aggregate Resource Assessment Report indicates that the aggregate on the site does not meet ODOT specifications. This report also indicated that the aggregate resource cannot be profitably mined. Staff believes these issues constitute a change in circumstances required by this criterion. IV. Issues: Staff has identified a number of issues that may need to be resolved prior to any approval of this application. 1. Environmental: Does the County have the authority under the relevant code to address environmental concerns? Are these concerns addressed under state and federal law? How can a land use decision be linked to a resolution of the environmental concerns? 2. Transportation: What is required at this stage by the TPR? How would mitigation be timed or implemented? 3. Reclamation: Has all previously required reclamation been accomplished? If not, how should this be addressed? IV. Recommendation: ZC-07-5 Page 30 of 31 Based on the foregoing Findings of Fact and Conclusions of Law, the Staff recommends denial of the applicant's proposed plan amendment and zone change. Staff anticipates that the applicant may submit additional information before of at the hearing. Staff requests an opportunity to respond to any new information and notes that new information may alter Staff's present recommendation for denial. ZC-07-5 Page 31 of 31 ■ RECOMMENDATION OF THE DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: ZC-08-1, PA-08-1 LOCATION: The property is identified on the County Assessor's Tax Map as 14-12, Tax Lots 1501, 1502, 1503, part of 1505, and 1600. APPLICANT: The Daniels Group, LLC 1111 Main Street, Suite 700 Vancouver, WA 98660 OWNER: Norman L. Wiegand, et al. 895 SW 23rd St. Redmond, OR 97756 ATTORNEY /PLANNER: Tia M. Lewis Mark Rust, AICP Schwabe, Williamson & Wyatt, PC 549 SW Mill View Way, Suite 101 Bend, OR 97702 REQUEST: Comprehensive plan text and map amendment and zone change from Surface Mining to Rural Residential to allow redevelopment of extensively mined site. STAFF CONTACT: Will Groves, Senior Planner 1. APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.52, Surface Mining 2. Chapter 18.60, Rural Residential zone * Section 18.52.200, Termination of the Surface Mining Zoning and Surrounding Surface Mining Impact Area Combining Zone 2. Chapter 18.136, Amendments * Section 18.136.020, Rezoning Standards B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.20, Review of Land Use Action Applications * Section 22.20.040, Final Action in Land Use Actions ZC 08-1/PA 08-1 Daniels Group Page 1 of 31 C. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan 1. Chapter 23.100, Surface Mining D. Statewide Land Use Goals and Oregon Administrative Rules (OAR) Chapter 660 1. Division 12, Transportation Planning Rule (TPR) * OAR 66042-0060, Plan and Land Use Regulation Amendments 2. Division 15, Statewide Planning Goals and Guidelines 3. Division 23-0180, Mineral and Aggregate Resources II. FINDINGS OF FACT: A. Location: The property is identified on the County Assessor's tax map as 14-12, tax lots 1501, 1502, 1503, part of 1505, and 1600. Tax Lot 1501 has an assigned address of 70420 NW Lower Bridge Way, Terrebonne. B. Zoning and Plan Designation: The site is generally designated "Surface Mining" on the Comprehensive Plan Map, although the exact boundaries are unclear. The mine is included in the county's Goal 5 inventory of significant mineral and aggregate resource sites as Site 461. Tax lot 1501: 249.1 acres zoned Surface Mining (SM), including 9.8 acres in Landscape Management Combining Zone (LM) Tax Lot 1502: 188.1 acres zoned SM, including 82.3 acres zoned LM Tax Lot 1503: 64.4 acres zoned SM, including 64.4 acres zoned LM Tax Lot 1505: Only 42.1 acres of this 72.47 acre tax lot are subject to this application. The most southerly portion of this lot adjacent to Teater Road and zoned EFU is not subject to the proposed zone change. Tax Lot 1600: 10.6 acres total includes 9.6 acres of Exclusive Farm Use 1.0 acre zoned Flood Plain, 10.6 acres zoned LM, and 10.6 acres zoned SMIA C. Site Description: The 556.9 acre site is a geologically unique tract straddling Lower Bridge Way about 6 miles north of Terrebonne, as shown on the Site Map, submitted as Exhibit 1 and on the aerial photograph, submitted as Exhibit-.2. To an observer driving Lower Bridge Way, the site is notable for the chalky white appearance of the exposed diatomite layers.' ' The site has been mined for several materials, including aggregate, sand and diatomaceous earth. Most of the aggregate and sand on the site have been removed, and the area containing those materials have been reclaimed. The diatomaceous earth is described as "a chalky rock, high in amorphous silica content formed from the structures (or diatomite) of tiny fresh- or salt-water organisms called diatoms." See Applicant's Burden of Proof, Exhibit 23, page 1. Diatomaceous earth is variously referred to in the materials as "D.E.," "dicalite," "diatomite," and diatomaceous earth. For ease of reference, I use the term "diatomite." ZC 08-1/PA 08-1 Daniels Group, LLC Page 2 of 31 As illustrated on the submitted Site Map, the subject property includes Tax Lots 1501, 1502, 1503, 1505, 1600, but excludes the EFU-zoned portion of Tax Lot 1505 bordering Teater Road. The subject property can be divided into five geographic regions: eastern, northern, Deep Canyon, western, and central. The land includes four general landscape types: quarry operations (old and recent), hills/buttes (natural and formed), plains (unmined, mostly natural vegetation), and canyons and drainages (natural vegetation, unmined). The eastern region includes tax lot 1503 and 1505, is east of Lower Bridge Way, and extends east along a steep slope, descending approximately 100 feet to the Deschutes River. It is generally level and covered with overburden rock apparently removed from the former diatomite mining operations. The River is lined with wetlands depicted on the National Wetlands Inventory Cline Falls map. The northern region includes tax lots 1501 and 1600, stretches west along the river from Lower Bridge to Deep Canyon, then south along the southern rim of Deep Canyon. The ground is relatively level, except for steep canyons that reach down to the Deschutes and Deep Canyon. North of the diatomite mining area is a relatively undisturbed "plains" landscape with mature juniper. The subject property is separated from the River in this area by Tax Lot 14-12 1509, owned by the Oregon Parks and Recreation Department. Deep Canyon is primarily located on tax lot 1501, and is a small canyon with a spring and a seasonal pond that drain to the Deschutes River. Two unimproved roads cross the canyon. Across the northern bridge is the western region, a flat area formerly mined for diatomite. The central region, includes tax lots 1501 and 1502 and is a quarry landscape. This region comprises about half of the subject property. A thick diatomite layer and stockpiles make up much of this area, which is accessible only with an all- terrain vehicle. This section of subject property is traversed by several unimproved roads. The area was extensively mined for diatomite, and several derelict buildings, including a former processing building, water tower, pump house, concrete foundations, settling ponds and miscellaneous debris piles remain. The applicant has drilled a well in this area, and is proposing to install a pivot sprinkler to the wellhead. The sprinkler is to be used to control dust and provide water for irrigation. The applicant proposes to remove the remaining derelict structures. This reach of the Deschutes River that forms the east and northeast boundary of the site is designated as a Federal Wild and Scenic River and an Oregon Scenic River. A steep bank limits pedestrian access to the river. However, the river is accessible from Lower Bridge Way, and from the public park near the bridge. D. Soils: Approximately 80% of the soils on the site are defined as Class VII and VIII. Steve Wert, a consulting soil scientist, visited the site and conducted preliminary research of the soils present on the site. His findings are summarized in a letter dated October 4, 2006: "According to NRCS maps, the great majority of the property does not even have a "soil type," but is classified as a "land type" called "Unit 97" which is rock and gravel pits. Unit 97 is rated Class VII and VIII, and NRCS will stand by that rating." However, not all of the property is class VII or Vlll. The following table summarizes soils data by tax lot. ZC 08-1/PA 08-1 Daniels Group, LLC Page 3 of 31 Approximate Acreage of Soil Type by Tax Lot Tax Lot NRCS Land / Soil Classes Approximate Zoning Soil Type acres e2 1501 97 7 & 8 159 acres SM, SMIA, LM 81 F 7 & 8 24 acres 249.1 138A 6, not prime 48 acres acres 1388 6, not prime 1.1 acres (central 71A 6, prime if irrigated 12.2 acres /western) 71 B 6, prime if irrigated 1.8 acres 31A 6, prime if irrigated 3.3 acres 1502 97 7 & 8 160 acres SM, SMIA, LM, 188.1 81 F 7 & 8 9 acres FP Acres 138A 6, not prime 19 acres central 1503 97 7 & 8 42 acres SM, SMIA, LM, 64.4 31 B 6, prime if irrigated 18 acres FP, EFU acres 71A 6, prime if irrigated 3.4 acres eastern 1505 97 7 & 8 39 acres SM, SMIA, LM, 41.2 81 F 7 & 8 2 acres FP acres eastern 1600 138A 6, not prime 8.2 acres SMIA, FP, EFU 10.6 81 F 7 & 8 2.4 acres acres northern TOTAL 7 & 8 79 % = 438 acres 553.4 6, not prime 14% = 76 acres acres 6, rime if irrigated 7% = 39 acres E. Surrounding Zoning and Land Uses: This section describes zoning and land uses within a 2-mile radius of the center of the subject property. Surrounding zoning in the area of the subject property includes Exclusive Farm Use-Lower Bridge (to the north, west and south), Exclusive Farm Use-Terrebonne (to the east and further to the south), Surface Mining (to the northeast), Rural Residential (to the east and southeast) and Flood Plain associated with the Deschutes River. The Landscape Management combining zone extends along the Deschutes River. The subject property is predominantly surrounded by active agricultural lands, as shown in the 2008 Google Earth aerial photo included in the record. The surface mining zoned land to the northeast appears to be in agricultural production. Properties to the west and southwest and east are sparsely developed with rural residences. Most of the dwellings in the immediate area have been constructed within the last 25 years. Within a 3-mile radius there are nearly 700 parcels with over 400 residences. 2 Acreages are based on area measurements taken from the Deschutes LAVA GIS. Due to measurement error, these acreages may not equal the deed or Assessor's acreages for the tax lots. ZC 08-1/PA 08-1 Daniels Group, LLC Page 4 of 31 F. Mining History: The subject property has a long, inconsistently documented mining history. Diatomite mining began on the property prior to the 1920s. Large scale production began in 1936. The Great Lakes Carbon Company mined the property from 1944 to 1961. The mining history between 1966 and 1980 is unclear. The Oregon Department of Geology and Mineral Industries (DOGAMI) file for this site begins in 1980. That file indicates that multiple companies have mined the site, mostly for diatomite but also for aggregate. Although multiple mining permits were issued over the years, various companies were cited for violating environmental laws, mining permits, or operating without permits. By 1980 Deschutes Valley Farms owned the site and leased it to Northwest Diatomite. In January 1982, DOGAMI exempted Mid-Oregon Ready Mix from reclamation requirements because the land was a mined prior to the effective date of the reclamation rules. Mid-Oregon Crushing and Mid-Oregon Ready Mix were extracting aggregate by 1985. Various diatomite and gravel extraction activities occurred in the subsequent years. By 1994, E.A. Moore was extracting, screening and crushing gravel on the eastern portion of the site. Several DOGAMI inspections occurred over the years, which found reclamation plans being implemented. By 2006, DOGAMI was ready to close the file on the site. A Limited Exemption Closure Plan was submitted in late July, 2006. On July 31st DOGAMI closed the file on the site. Due to incomplete DOGAMI records and an apparent history of unpermitted mining, the total quantity of aggregate and mineral removed from the site during over 80 years of mining is unclear. G. Zoning History: In 1985, 339 acres of the subject property was rezoned from Surface Mining Reserve to Surface Mining. The applicants apparently anticipated that diatomite mining would become economically viable again because a processing plant was being constructed in Malheur County, which would enable the applicant to export it. The Hearings Officer found that there was little local demand for diatomite, but that export of the product after off-site processing partially justified the rezone. In 1988, the Deschutes County Goal 5 Aggregate Inventory identified the site as an aggregate resource (as opposed to a mineral resource, which includes diatomite) of 350,000 cubic yards. In the ESEE analysis for site 461, the Board identified the key values that form the basis for the application of SM zoning to the mine site. These include the importance of aggregate resources to development in Deschutes County, the value to the County economy terms of materials and jobs, the presence of an estimated 350,000 cubic yards of aggregate on the site, and that the site is located near a major roadway for highway maintenance and construction jobs. Relevant Previous Land Use Decisions: CU-74-156 - This record contains plan information for a solid and liquid waste disposal site on the subject property. It appears that this application was approved, as solid and liquid waste storage occurred on the property. A variety of wastes, including hazardous wastes were stored on the site and subsequently removed. This is discussed more fully later in the findings. MP-80-96 - Divided modern tax lots 1503 and 1505, as Parcel 2, and 1506, as Parcel 3 from the remainder of the mining site. ZC 08-1/PA 08-1 Daniels Group, LLC Page 5 of 31 ZC-85-3 - A zone change from surface mining reserve to surface mining on tax lots 1501, 1502, 1600, and 704. This decision did not apply to the entire site, but was limited to 339 acres. Condition 3 of this decision required a reclamation plan. SP-85-23 - A site plan to allow surface mining, aggregate mining, and rock crushing on tax lots 1501, 1502, 1600, and 704. This decision included reclamation specifications, The applicant has stated that the topsoil is stockpiled and will. be replaced on the area mined approximately 12 inches deep. The applicant proposed to motorgrade the site and seed it with fortress red fescue, Idaho fescue, and mixed bunchgrass at a rate of 40 pounds per acre planted in the fall with fertilizer and mulch. The applicant also proposes to plant evergreens for shade and windbreaks on the site. This is a summary of the applicant submitted reclamation plan, attached as Exhibit C to the Hearings Officer Decision in SP-85-23. This required reclamation was riot completed. Condition 1 of SP-85-23 required an updated reclamation plan to include measures to prevent materials from eroding into the Deschutes River. There is no evidence that topsoil was stockpiled for reclamation, and staff has been unable to locate the updated reclamation plan. ESEE Analysis #461 - On October 24, 1989 the Board of County Commissioners rezoned the remainder of the 660-acre site (comprised of modem tax lots 1501, 1502, 1503, and 1507) to SM. This decision contains information about the quality and quantity of aggregate and mineral resources on the property. MP-90-74 - Divided historic tax lots 1501, 1507 and 1508 into two legal lots of 66 and 254 acres. All of the above files are incorporated into this record by reference. H. Proposal: The applicant requests approval of a plan amendment to change I,he designation of the subject property from Surface Mine (SM) and Agriculture (AG) to Rural Residential Exception Area (RREA) and to remove Surface Mining Site 461 from the county's Goal 5 inventory of significant mineral and aggregate resource sites. The applicant also requests approval of a zone change from SM and EFU-LB to RR-10 for the subject property. The removal of the SM zoning on the subject property also would remove the existing Surface Mining Impact Area Combining Zone (SMIA) zoning on property located within one-half mile of the SM Zone. If these applications are approved, the applicant plans to redevelop the site as a residential planned unit development with up to 74 dwellings. The site map submitted as Applicant's Exhibit 1 depicts areas presently zoned Flood Plain (FP) as part of this rezoning proposal. Discussions with the applicant have clarified that this proposal is not intended to rezone FP zoned lands. 1. Public/Private Agency Comments: The Planning Division mailed notice to several agencies. Those comments are summarized in the staff report, or are included in the record. To the extent the comments pertain to the applicable approval criteria, they are addressed in the findings. ZC 08-1/PA 08-1 Daniels Group, LLC Page 6 of 31 J. Public Notice and Comments: The Planning Division mailed individual written notice of the applicant's proposal and the public hearing to the owners of record of all property located within 750 feet of the subject property. In addition, notice of the public hearing was published in the Bend Bulletin, and the subject property was posted with a notice of proposed land use action sign on February 2, 2008. Numerous residents submitted written testimony and evidence, and provided oral testimony at the public hearing. The residents identified concerns regarding dust (including health concerns specific to diatomite dust), chemical contamination of the site, radiological contamination of the site, site reclamation, traffic impacts, aesthetic impacts of the existing mine and structures, water quality, water rights, and aesthetics of future development. Public comments have also questioned if a new ESEE analysis or Goal 5 exception would be required. These comments are more fully addressed in the findings below. K. Lot of Record: The applicant submitted evidence regarding the status of the tax lots incorporated into these applications. The evidence shows that the property is comprised of legal lots of record created through deed or partition. III. CONCLUSIONS OF LAW: PLAN AMENDMENTS The applicant requests the following: (1) approval of a plan map amendment from Surface Mining and Agriculture to Rural Residential Exception Area, and (2) removal of Surface Mining Site 461 from the county's Goal 5 inventory of significant mineral and aggregate resource sites. The county plan and development code do not set out a process for quasi-judicial amendments to the plan map and text; it appears that the county relies on consistency with the Statewide Land Use Goals and ORS 197.610 through 197.625 (post-acknowledgement plan amendment procedures) to provide both the process and the substantive review criteria. Those criteria are addressed in Section C. While there are no substantive approval criteria in the plan, it is useful to review the plan designation history of the subject property, and address the parties' arguments regarding plan policies at the onset. 1. Plan Designation History. In the late 1980s the county undertook a lengthy process to inventory its mineral and aggregate resources, to develop a plan to preserve and protect those resources, and to amend the county's comprehensive plan and zoning ordinance to adopt the inventory and measures to protect sites. These plans were adopted through several ordinances and included listing Site 461 on the inventory of significant sites, adoption of a site-specific ESEE (Economic, Social, Environmental and Energy) analysis for Site 461, and adoption of ordinances designating the subject property for surface mining, on October 24, 1989. 2. Current Plan Designation. The subject property is currently designated SM and AG (Tax lot 14-12 1600 only). ZC 08-1/PA 08-1 Daniels Group, LLC Page 7 of 31 3. Applicable Comprehensive Plan Provisions. The following plan policies are relevant to the proposed plan amendment from Surface Mining and Agriculture to Rural Residential Exception Area. A. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan 1. Chapter 23.24, Rural Development Section 23.24.020, Goals. A. To preserve and enhance the open spaces, rural character, scenic values and natural resources of the County. FINDINGS: The subject property is currently an un-reclaimed mine site. The proposed plan amendments by themselves will not alter open spaces, scenic values, or spoil rural character, but instead will create an opportunity to redevelop and mitigate existing adverse conditions of the site following mining and industrial operations. The present condition of the site adversely affects the scenic value of the area with rusting structures and extensive unreclaimed mine areas. Any future development, not included in that application, would be required to conform to development standards for Rural Residential (RR-10) zoned lands, that are designed to preserve and enhance the open spaces, rural character, and scenic values of the County. Moreover, future development of any structures in the LM zone will be subject to individual site plan review to ensure the protection of the scenic values associated with the Deschutes River. One of the neighbors commented that the proposal is inconsistent with this policy because a future planned development proposal could cluster dwellings along the top of the riverbank. The neighbor asserted that clustered residential development is inconsistent with the local residential development pattern, and therefore a more appropriate zoning designation is EFU- 20.3 The hearings officer finds that there is no such designation in the zoning code, and the evidence shows that the site does not contain agricultural soils. The proposed RR-10 zoning designation would maintain the residential density that occurs within the area, and if a planned unit development is proposed, the layout of the lots can be arranged to minimize their visual impacts on neighboring property owners. The removal of Site 461 from the County's surface mining inventory would preclude access to diatomaceous earth and aggregate materials on the site. The applicant has argued that there is insufficient remaining aggregate to economically extract, and there is little need for diatomite in modern industrial manufacturing. Neighbors dispute this finding, arguing that there are viable industrial uses for diatomite, and that the applicant's present desire to convert the land to residential use does not alter the significance of the site for diatomite production. These issues are discussed in greater depth below. B. To guide the location and design of rural development so as to minimize the public costs of facilities and services, to avoid 3 It may be that the neighbor is referring to the MUA zone, a multi-use zone that permits subdivisions and planned unit residential developments at 7.5 acre densities. See DCC 18.32.040(A)(minimum lot size in MUA district is 10 acres, except planned and cluster developments shall be allowed an equivalent density of [7.5] acres.) The proposed RRA 0 zoning designation permits development at similar densities. Therefore, it appears that the development limitations proposed by the neighbors does not currently exist in the code. ZC 08-1/PA 08-1 Daniels Group, LLC Page 8 of 31 unnecessary expansion of service boundaries, and to preserve and enhance the safety and viability of rural land uses. FINDINGS: The applicant argues that the proposal is consistent with this goal because a future developer, and not the public, will bear costs of extending facilities to the property. Staff and the neighbors disagree that the extension of public services is the only consideration under this goal, arguing that it also requires a showing that the proposed rural residential uses "preserve and enhance the safety and viability of rural land uses." The neighbors argue that unless reclamation and remediation measures are included in this approval, neither the neighbors nor the future residents of the site can be assured that the site is safe for development or that development on their properties will remain viable. Public Facility/Service Availability and Capacity This goal requires the county to thoughtfully consider development locations to minimize urban sprawl and to ensure that public facilities and infrastructure are adequate to accommodate anticipated development. This includes consideration of service availability and capacity. Low density residential development allowed in the RR-10 zone does not require urban services such as sewer and water, as those needs can be served by on-site systems. Service boundaries will not be expanded. Public services, such as police and fire, already serve the area. With respect to these facilities and services, the proposed redesignation will have little to no effect. The site borders on Lower Bridge Way, a publicly maintained county road. The applicant's traffic study concludes the intersection of Lower Bridge Way/U.S. 97 will not meet either the performance standards of Deschutes County or ODOT with or without this development. The applicant's December 2007 traffic study assumed "a reasonable worst-case scenario under the current [SM] plan and zoning designation," and "a reasonable worst-case scenario under the proposed [RR-10] plan and zoning designation." In that study, Kittleson and Associates assumed that mining activities on the site would generate 26 peak hour trips, and that residential uses (based on 55 dwelling units) would generate 55 peak hour trips, for total increase of 31 peak hour trips. Based on the December 2007 study, and on his assumption that the reasonable worst-case rural residential development scenario involved the development of 74 dwelling units in a PUD, the county transportation planner concluded the proposal would have a significant effect on transportation facilities as defined by the Transportation Planning Rule (TPR) at Oregon Administrative Rule (OAR) 660-012-0060(2)(c). Thus, if the development is approved, the applicant will need to provide mitigation sufficient to avoid further degradation of the intersection as required by OAR 660-012-0060(3)(c). In the alternative, the planner recommended that the applications be denied, for failing to satisfy transportation-related approval standards. In response to this preliminary review, the applicant provided evidence that the proposed plan amendment/zone change will not significantly affect a transportation facility because the number of vehicle trips that could be used in mining the site generates more than the peak hour trips that could be generated by rural residential use. Mason v. City of Cofvallis, 49 Or LUBA 199 (2005)(if the number of vehicle trips from the proposed development is less than the number of vehicle trips allowed under current zoning, the causative element necessary to find a "significant effect" under the TPR is missing.) In support of this contention, the applicant initially relied on a ZC 08-1/PA 08-1 Daniels Group, LLC Page 9 of 31 transportation impact study conducted by Eugene Sand and Gravel for its Delta Road site a Based on the Delta Road evidence the proposed residential use would generate 74 peak hour trips, compared to 89 peak hour trips generated from the mining activities. After reviewing this revised analysis, the county transportation planner expressed concerns regarding the relevancy of an urban aggregate processing facility to the subject property. Thus, on May 20, 2008, the applicant submitted a second revised analysis, using more rural locations in Deschutes and Crook Counties. According to this second revised study, the mining activities on all of the comparison sites would be still be greater than the proposed residential use. The applicant seeks to rezone this property in part because it is depleted of economically viable mineral and aggregate resources. Therefore, if these applications are denied, the site could be used for stockpiling materials, for processing materials (including washing and crushing) and to site an asphalt batch plant. The evidence shows that peak hour rates for these activities vary widely, in part because they are dependent on outside construction schedules. Both ODOT and the county transportation planner question these assumptions, noting that nearby mining operations generate between 16 and 26 peak hour trips, volumes that are generally consistent with the historical trip generation from mining at the site, and consistent with the applicant's December 2007 assumptions. Both the state and the county argue that it is highly unlikely that the types of mining and processing that could occur on the site would generate the assumed peak hour trips upon which the applicant relies. The hearings officer notes that for both the applicant and the transportation officials, the consequence of a significant impact determination is costly. For the applicant, it means either amending the county's transportation plan to address the additional trips, or constructing improvements to ensure that the failing turning movement is addressed. For the county and ODOT, it means the difference between planning (and financing) to address other deficiencies, and addressing deficiencies that are exacerbated by a particular, unanticipated development. The hearings officer concludes that the greater weight of the evidence supports ODOT and the transportation planner. The likely trip generation from mining the site is very use and project specific, and is likely to be more sporadic than the anticipated trips from residential development on the site. Given this uncertainty and the historic trip generation for mining related uses in the area, the hearings officer concludes that the applicant has not met its burden of demonstrating that the proposal will not significantly affect a transportation facility within the meaning of the TPR, county code and this policy. In the alternative, the applicant asserts that it is possible to amend the county's transportation systems plan (TSP) to ensure that the proposed plan amendment is consistent with the plan and the TPR, and accordingly is consistent with this policy. The proposal is evaluated against standards and criteria that are in effect at the time the application is deemed complete. ORS 215.427. The applicant cannot rely on future amendments to ensure present consistency. Accordingly, the hearings officer concludes that if the board of county commissioners concludes 4 The applicant based its revised analysis on the use of the site for a variety of mining related activities, including limited extraction and stockpile, batch plant and crushing operations. According to the applicant, such a comparison is appropriate, because the site may be used for mining-related activity, if the property is not re-designated for rural residential uses. The applicant concedes that this comparison is somewhat flawed, as there is a vast disparity in the types of activities that can occur at mining sites, with a corresponding variety in the number of peak hour trips generated by those activities. Nevertheless, the applicant asserts that this is a "reasonable worst-case development scenario," because the applicant holds mineral rights for a nearby site, major transportation facilities are planned for construction in the area, and the applicant will need to find some economic use for the site. ZC 08-1/PA 08-1 Daniels Group, LLC Page 10 of 31 that the proposal will generate more trips than uses under the existing zoning, the applicant has not demonstrated that the impact of the proposed change in plan and zoning designations will minimize the cost of transportation facilities to the site. "To Preserve and Enhance the Safety and Viability of Rural Land Uses" As noted above, opponents argue that before this site is rezoned for rural residential uses, the applicant must demonstrate that it is safe for those residential uses, and that the safety of other local uses, including residential and agricultural uses are preserved and/or enhanced. The neighbors expressed concerns that hazardous wastes from mining activities since 1985 have not been adequately addressed, and that the 1984-85 remediation and removal of hazardous and radioactive wastes were inadequate. Further, the neighbors argue that the applicant has not yet demonstrated that there is sufficient water to accommodate the proposed site reclamation and provide domestic water for the number of dwelling units that could be developed on the property. In addition, the neighbors argue that there is no evidence that the applicant will take steps to address water contamination from the remaining mining materials. Finally, the neighbors insist that this site will not be safe for residential use or preserve the viability of existing rural residential uses in the area until the diatomite is fully contained. The hearings officer disagrees with staff and opponents that this goal requires that prior activities on the site be remedied before the site can be rezoned for rural residential uses. The proposed map designation is consistent with other rural residential zoning in the area. In addition, if the mineral and aggregate resources are no longer needed/available, the site cannot be put to resource use. It includes few agricultural and no forest soils, and there is no dispute that the former mine site is not suitable for farm or forest activities. In addition, permitting rural residential development on the property will certainly be more compatible with neighboring residential uses than mining. Particular development concerns, including water quality and quantity, dust suppression and waste remediation, can be addressed in conjunction with a particular development plan for the site. The hearings officer concludes that the proposal is consistent with this goal. C. To provide for the possible long-term expansion of urban areas while protecting the distinction between urban (urbanizing) land and rural lands. FINDINGS: The unincorporated community of Terrebonne is located approximately seven miles southeast of the site. The proposed zone change and plan amendment would not preclude the possible long-term expansion of the community boundaries, although such expansion to the subject property is not foreseeable at this time. Any future development, not included in that application, would be required to conform to development standards for Rural Residential (RR-10) zoned lands, that are designed to protect the distinction between urban (urbanizing) land and rural lands. Section, 23.24.030, Policies. Residential/recreational development. 1. Because 91 percent of the new County population will live inside an urban area, with only 3,039 new rural lots required, and in light of the 17,377 undeveloped rural tracts and lots as well as the energy, environmental and public service costs, all future rural development will be stringently reviewed for public need before approval. As a guideline for review if a ZC 08-1/PA 08-1 Daniels Group, LLC Page 11 of 31 study of existing lots within three miles of the proposed development indicates approximately 60 per cent or more of those lots have not had structures constructed thereon, then the developer shall submit adequate testimony justifying additional lots in that area. This will permit development in areas where such is needed (other policies considering energy, public facilities, safety and other development aspects shall also be considered) while restricting future division in areas where many undeveloped lots already exist. FINDINGS: It is not entirely clear whether this policy pertains to a proposal to rezone property from SM to RR-10, as a rezoning is not "development" per se, and development of this site will require further review. To the extent this policy does apply, staff analyzed existing lots within three miles of the subject property and found approximately 58 percent of those lots have been developed with structures: Zone Parcels Parcels with at least one structure EFUTE 92 33 EFUSC 16 3 EFULB 113 54 MUM 0 388 292 RR10 75 23 SM 9 0 Total 693 405 ,68% The applicant need not provide additional justification for its proposal to redesignate the site for rural residential uses. Overall, the proposal is not inconsistent with this policy. 2. Chapter 23.60, Transportation a. Section 23.60.010, Transportation * * * The purpose of DCC 23.60 is to develop a transportation system that meets the needs of Deschutes County residents while also considering regional and state needs at the same time. This plan addresses a balanced transportation system that includes automobile, bicycle, rail, transit, air, pedestrian and pipelines. It reflects existing land use plans, policies and regulations that affect the transportation system. FINDINGS: This goal is implemented through the provisions of DCC 17.16.115(1)(1) and (2), and the TPR. As noted above, the proposal is not consistent with either the county development code or the TPR because the re-designation will significantly affect a transportation facility and the applicant has not addressed how those effects will be off-set by changes in the TSP or improvements to the Lower Bridge Way/U.S. 97 intersection. Therefore, the proposal is not consistent with this standard. 3. Chapter 23.68, Public Facilities a. Section 23.68.020, Policies ZC 08-1/PA 08-1 Daniels Group, LLC Page 12 oi` 31 1. Public facilities and services shall be provided at levels and in areas appropriate for such uses based upon the carrying capacity of the land, air and water, as well as the important distinction that must be made between urban and rural services. In this way public services may guide development while remaining in concert with the public's needs. 3. Future development shall depend on the availability of adequate local services in close proximity to the proposed site. Higher densities may permit the construction of more adequate services than might otherwise be true. Cluster and planned development shall be encouraged. 9. New development shall not be located so as to overload existing or planned facilities, and developers or purchasers should be made aware of potentially inadequate power facilities in rural areas. FINDINGS: These policies address public facilities and services that may be needed to serve residential uses on the site-5 With the exception of the local road system, future development is unlikely to overload existing or planned public facilities. Concerns regarding transportation facilities are discussed above. The existing rural residential development in the area indicates that public facilities and services are available. Future development of the property can be served by private wells and septic systems. Utility lines and facilities can be located so as not divide any existing farm units. 4. Chapter 23.88, Agricultural Lands Section 23.88.020, Goal. To preserve and maintain agricultural land. FINDINGS: As noted above, this proposal would result in the conversion of approximately 39 acres of "high value if irrigated" farmland to rural residential use.6 It is unclear if residential use on the property would increase or decrease adverse impacts to nearby agricultural operations. Impacts imposed on agricultural uses by adjacent residential uses typically include vandalism, trespassing, disturbance to livestock, and dust. However, development of the-project is likely to result in better dust suppression, to the benefit of nearby agricultural operations. Overall, the hearings officer concludes that the proposal is consistent with these policies because it absorbs some of the pressure to develop on agricultural lands. 5 The applicant does not propose to use or install a public water system to serve residential development on the property, and OAR Chapter 660, division 11, precludes the establishment or extension of urban water or sewer systems outside of urban growth boundaries or existing service areas. Therefore, the potential availability of quality domestic water is not relevant under these goals. The applicant argues that the vast majority of the site does not contain agricultural soils and therefore a Goal 3 exception is not needed. The hearings officer agrees. ZC 08-1/PA 08-1 Daniels Group, LLC Page 13 of 31 a. Section 23.88.030, Zoning Policies. 1. All lands meeting the definition of agricultural lands shall Ibe zoned Exclusive Farm use, unless an exception to State goall 3 is obtained so that the zoning may be Multiple Use Agriculture or Rural Residential. 2. Lands not meeting the agricultural lands definition but having potential for irrigation according to the Bureau of Reclamation Special Report - Deschutes Project, Central Division, Oregon, although presently without water, shall receive exclusive farm use zoning. FINDING: As explained at length below, the subject property, as a whole, is not "agricultural land." The property does not have potential for irrigation according to the Bureau of Reclamation Special Report - Deschutes Project, Central Division, Oregon. A. OAR 660, Division 33, Agricultural Land. 660-033-0020 (1)(a) "Agricultural Land" as defined in Goal 3 includes: (A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as predominantly Class 14V soils in Western Oregon and I-VI soils in Eastern Oregon; (B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a), taking into consideration soil fertility; suitability for grazing; climatic conditions; existing and future availability of water for farm irrigation purposes; existing land use patterns; technological and energy inputs required; and accepted farming practices; and (C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands. (D) Land in capability classes other than I-IV/1-VI that is adjacent to or intermingled with lands in capability classes I-IV/I-VI within a farm unit, shall be inventoried as agricultural lands even though this land may not be cropped or grazed; FINDINGS: The threshold inquiry for determining whether land is "agricultural" is whether the soils are predominately class I-VI. Miles v. Bd. of Comm. of Clackamas County, 48 Or App 951, 955, 618 P2d 986 (1980); Flury v. Land Use Bd. of Appeals, 50 Or App 263, 267 (1981). The evidence demonstrates that the subject property does not qualify as either high value agricultural or forest land. Soil studies conducted by Wert & Associates confirm that approximately 20% of soils are class VI; in fact only 5% of those are considered high value with irrigation. Staff reaches a similar conclusion, estimating that approximately 21% of soils are class VI, and only 7% of those are considered high value with irrigation. The record demonstrates the subject property is not irrigated and is not necessary to permit farm practices on adjacent agricultural lands, and the soils are not intermingled with agricultural soils within a farm unit. The Forage Report concludes that the property "is not suited for profitable, accepted agricultural use." Because a vast majority of the property contains class Vll & VIII soils, and the poorer soils are not intermixed with higher class soils within an existing farm unit, it falls outside ZC 08-1/PA 08-1 Daniels Group, LLC Page 14 of 31 of the default category of "agricultural lands" set out in Goal 3 and OAR Chapter 660, division 33. The hearings officer notes that is site was originally designated for Surface Mining in the county's comprehensive plan and zoned Surface Mining Reserve. The site was rezoned SM in the 1985. The hearings officer finds that the only "resource" designation on this site is for mining, a Goal 5 use, and not farm or forest, Goal 3 and 4 uses, respectively. For these reasons, the subject property does not constitute "agricultural land" as defined in Goal 3, is not subject to protection under Goal 3, and therefore the proposed plan amendment and zone change do not require an exception to Goal 3. B. OAR 660. Division 6. Goal 4 Forest Land. Goal 4 defines "forest land" as follows: Forest lands are those lands acknowledged as forest lands as of the date of adoption of this goal amendment. Where a plan is not acknowledged or a plan amendment involving forest lands is proposed, forest land shall include lands which are suitable for commercial forest uses including adjacent or nearby lands which are necessary to permit forest operations or practices and other forested lands that maintain soil, air, water and fish and wildlife resources. FINDINGS: The subject property is not and never has been zoned for forest use. The detailed soil study prepared by Steve Wert included an analysis of the subject property's soils for production of merchantable tree species, and shows the soil units identified on the subject property are not listed in the NRCS' Woodland Productivity soils table, and therefore are not considered suitable for the production of wood crops by the NRCS. Finally, the record indicates the predominant tree species on the property are juniper trees which historically have not had commercial value and have not been harvested commercially either on the subject property or on nearby lands. Accordingly, OAR Chapter 660, division 6 does not apply. 5. Chapter 23.96, Open Space, Areas of Special Concern, and Environmental Quality a. 23.96.020, Goals. 1. To conserve open spaces and areas of historic, natural or scenic resources. FINDINGS: The site abuts the Deschutes River, a designated federal Wild and Scenic River and Oregon Scenic River. The river and property abutting it are subject to the Landscape Management Combining Zone and that designation will not change with the proposed designation to Rural Residential Exception Area. To the extent that rural residential development may affect open spaces and areas of historic, natural or scenic resources, the hearings officer finds that the proposed designation will better preserve those resources than the existing mining designation. For instance, much of the mined area on the site is exempt from reclamation. Unless the site is put to some other use, the existing conditions will remain. ZC 08-1/PA 08-1 Daniels Group, LLC Page 15 of 31 In addition, the density standards for the proposed RR-10 zoning will ensure that development on the site will preserve significant areas of open space on the property, even if the site is developed with a PUD. Therefore, the hearings officer concludes that the proposal is consistent with this policy. 2. To maintain and improve the quality of the air, water and land resources of Deschutes County. FINDINGS: As noted above, this site has a long history of industrial use, and some of those uses have resulted in significant environmental impacts. Those impacts include dust from the diatomite, hazardous and radioactive waste disposal and remediation, and violations of environmental quality regulations. Neighbors expressed concerns regarding the impact of the proposal on water quantity and quality, arguing that the water needed to reclaim the site will adversely affect the area's water supply. Those issues are addressed as follows: Diatomite dust. According to the applicant, the diatomite on the property is from fresh-water diatoms. The applicant supplied testimony and evidence that shows that fresh-water diatomite contains a smaller percentage of crystalline silica, the type of silica that has been identified as a health hazard if inhaled in quantity. The applicant argues that this type of diatomite poses no more risk than other dust in the area. The applicant also argues that before this site is redeveloped for residential uses, the diatomite will be graded and seeded to prevent dust from blowing from the site to neighboring properties. The neighbors expressed reservations about this assertion, arguing that the cost and feasibility of that type of reclamation is unlikely to be recouped as part of development on this site.' The evidence shows that blowing dust has been an issue for many years, although recent grading activities has exacerbated the situation. The recent activities led the Department of Environmental Quality (DEQ) to issue a notice of violation. In response to the notice, the applicant began using an existing well to water a portion of the site to minimize dust. The applicant is also proposing to implement best management practices to ensure that blowing dust during development is minimized. These measures are adequate to assure that local air quality is maintained. Water quality/quantity. According to the evidence in the record, seven wells have been drilled on the site. These wells are proposed to be used for dust suppression, and may be converted to domestic wells in the future. The applicant proposes to develop individual, shared or group 7 The opponents argue that the diatomite has been converted to crystalline silica during through an on- site manufacturing process. They cited evidence showing that crystalline silica is hazardous to worker health, and argued that until the diatomite at the site has been removed or covered with top soil, there is no guarantee that existing or future residents' health will not be affected. They further argue that diatomite doesn't grow much, and unless the applicant plans to import a significant amount of topsoil, it is unlikely that the reseeding efforts will be successful. While the former evidence tends to support a finding that processing of diatomite at the site needs to be regulated, the evidence of the health effects of freshwater diatomite on neighboring property owners is not sufficient to undermine the applicant's evidence that such effects are limited. With respect to the viability of re-vegetation of the site, the hearings officer agrees that soil or soil amendments may be necessary to ensure that vegetation on the site will survive. Undoubtedly, future development on the site: will require a landscaping/vegetation plan to address long term plant viability. ZC 08-1/PA 08-1 Daniels Group, LLC Page 16 of :31 wells (serving up to three lots) as part of its residential development. The residents may use up to 15,000 gallons per day for domestic and yard irrigation (up to one-half acre) and remain exempt from water rights regulation. Similarly, wells developed to serve three or fewer dwellings are exempt from water quality standards. Neighbors expressed concerns regarding potential water contamination from past industrial uses, and also argue that the introduction of 17 or more new wells (assuming 72 dwelling units, and at least one well per three dwelling units minus the seven existing wells) could significantly affect their water quality and quantity. The hearings officer finds that this goal does not directly address the availability (or quantity) of domestic water supplies. Rather, it is intended to assure that qualify of air, water and land resources is maintained and improved. Here, the evidence (including evidence from testing of nearby community water wells) shows that existing water quality in the area is adequate, and that past activities on the site have not affected nearby well water quality. With respect to water quality at the site, the hearings officer finds that the question can be better addressed at the time a development proposal is submitted for the site. At this point, the evidence shows that the proposed plan amendment/zone change will not have any effect on water quality. Erosion/Fill. One of the neighbors expressed concerns regarding slope stability at the site, asserting that new grading may undermine the slope along the edges of the river bank. Other neighbors expressed concerns that the fill used for residential foundations be adequate for the purpose, noting that a school in Deschutes County is sinking, in part because the fill used by the contractor was not stable enough to accommodate the building. The evidence shows that diatomite mining occurred closer to the center of the site, and that the aggregate mining has ceased. There is no evidence that past mining has undermined slope stability along the river edge. The applicant has proposed to grade some of the taller diatomite mounds to reduce the areas susceptible to blowing dust. As for future development, land division and development standards impose setbacks from the edge of the bank, require compliance with grading permits, and require that needed fill be appropriate for the intended purpose. The hearings officer concludes that these measures are adequate to assure that development on the site will not adversely affect air, water or land quality. Dumping. The site was an approved waste facility in the mid-1970s, and consequently, sludge, radioactive materials as well as standard solid waste was brought to the site during that time. According to the applicant, the dumping grounds were limited to the central portion of the site, near the former lagoons, and included 55-gallon drums filled primarily with caustic sand. The site was subject to a DEQ-mandated clean up, which was completed by January 1985. The evidence shows that all of the materials located at the site prior to 1985 were removed to approved hazardous waste disposal sites, including Arlington and the Hanford Reservation. According to Maul Foster and Alongi, Inc., the applicant's environmental consultant, the standards used to evaluate the clean-up was based on one of two standards "clean up to the maximum extent practical" or "clean up to background conditions." Maul Foster and Alongi, Inc. representatives testified that these standards are higher than the current risk-based standards, which permit less comprehensive clean up where the site will be used for industrial purposes than is required for sites that will be redeveloped for residential uses.8 With respect to spills or activities that have occurred since that time, including disposal of mining solvents and industrial B The hearings officer realizes that a question remains as to whether the 1985 standards (based on 1985 technology) is equivalent to the clean-up standards that would be imposed if the site was subject to current standards for residential re-development. The hearings officer concludes that this goal requires a demonstration that the site meets applicable DEQ clean-up standards, which in this case, are the 1985 standards. The applicant has met its burden of demonstrating that those standards have been satisfied, therefore, the proposed plan amendment and zone change are consistent with these standards. ZC 08-1/PA 08-1 Daniels Group, LLC Page 17 of 31 burning, the evidence shows that the violations have been addressed. The hearings officer concludes that overall, the evidence supports a finding that the site has been remediated and that residential development can safely occur on the property. However, the hearings officer also concludes that it is appropriate to include documentation of the site history and clean-up efforts in the CC&Rs that apply to future development to ensure that if in the future questions arise about activities on the site, the residents have a ready source of information available to them. Based on these findings, the hearings officer concludes that residential development of the property will not significantly impair air, water or land quality in the area. a. Section 23.96.030, Policies 10. As part of subdivision or other development review, the County shall consider the impact of the proposal on the air, water, scenic and natural resources of the County. Specific criteria for such review should be developed. Compatibility of the development with those resources shall be required as deemed appropriate at the time given the importance of those resources to the County while considering the public need for the proposed development. FINDINGS: This plan policy is not applicable to the proposed plan amendment because the applicant is not seeking subdivision approval or development review. If the plan amendment and zone change are approved, then future development will need to satisfy this standard. B. Oregon Administrative Rules 1. OAR 660, Division 12, Transportation Planning Rule (1) Where an amendment to a functional plan, an acknowledged comprehensive plan, or a land use regulation 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 a functional 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 ZC 08-1/13A 08-1 Daniels Group, LLC Page 18 of 131 types or levels of travel or access that are inconsistent with the functional classification of an existing or planned transportation facility; (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 acceptable performance standard identified in the TSP or comprehensive plan. (2) Where a local government determines that there would be a significant effect, compliance with section (1) shall be accomplished through one or a combination of the following: (a) Adopting measures that demonstrate allowed land uses are consistent with the planned function, capacity, and performance standards of the transportation facility. (b) Amending the TSP or comprehensive plan to provide transportation facilities, improvements or services adequate to support the proposed land uses consistent with the requirements of this division; such amendments shall include a funding plan or mechanism consistent with section (4) or include an amendment to the transportation finance plan so that the facility, improvement, or service will be provided by the end of the planning period. (c) Altering land use designations, densities, or design requirements to reduce demand for automobile travel and meet travel needs through other modes. (d) Amending the TSP to modify the planned function, capacity or performance standards of the transportation facility. (e) Providing other measures as a condition of development or through a development agreement or similar funding method, including transportation system management measures, demand management or minor transportation improvements. Local governments shall as part of the amendment specify when measures or improvements provided pursuant to this subsection will be provided. (3) Notwithstanding sections (1) and (2) of this rule, a local government may approve an amendment that would significantly affect an existing transportation facility without assuring that the allowed land uses are consistent with the function, capacity and performance standards of the facility where: (a) The facility is already performing below the minimum acceptable performance standard identified in the TSP or comprehensive plan on the date the amendment application is submitted; ZC 08-1/PA 08-1 Daniels Group, LLC Page 19 of 31 b) In the absence of the amendment, planned transportation facilities, improvements and services as set forth in section (4) of this rule would not be adequate to achieve consistency with the identified function, capacity or performance standard for that facility by the end of the planning period identified in the adopted TSP; (c) Development resulting from the amendment will, at a minimum, mitigate the impacts of the amendment in a manner that avoids further degradation to the performance of the facility by the time of the development through one or a combination of transportation improvements or measures; (d) The amendment does not involve property located in an interchange area as defined in paragraph (4)(d)(C); and (e) For affected state highways, MOT provides a written statement that the proposed funding and timing for the identified mitigation improvements or measures are, at a minimum, sufficient to avoid further degradation to the performance of the affected state highway. However, if a local government provides the appropriate MOT regional office with written notice of a proposed amendment in a manner that provides ODOT reasonable opportunity to submit a written statement into the record of the local government proceeding, and ODOT does not provide a written statement, then the local government may proceed with applying subsections (a) through (d) of this section. FINDINGS: The TPR applies to these applications because they involve an amendment to an acknowledged plan. The proposed plan amendment would change the designation of the subject property from SM and EFU-LB to RREA, and the applicant has requested approval of a zone change from SM and EFU to RR-10 for the subject property. The applicant's December 2007 traffic study finds the intersection of Lower Bridge Way/U.S. 97 will not meet either the performance standards of Deschutes County or ODOT with or without this development. The County sets a standard of Level of Service (LOS) D for existing roads while the applicable ODOT volume/capacity (V/C) ratio is 0.70 for the highway and 0.80 for the side street based on functional classification and posted speed. An ODOT project planned for 2009 will reconfigure the Lower Bridge Way/97 and 11th Street/97 intersections. While this will improve the operations of these intersections, it will not address the capacity issue, as the project focuses more on storage issues on the side streets. As noted above, the applicant submitted revised traffic analyses, based on more intensive mining-related uses on the site. As ODOT and the county transportation planner note, however, those assumptions are not related to either historic trip generation from mining at the site, or from comparison facilities in the vicinity. Rather they are an amalgamation of several uses, and assume (with little empirical support) that those uses will generate peak hour trips that exceed the estimated peak hour trips generated from 74 dwelling units that could be developed on the site under the proposed zoning and plan designations. These assumptions are not supported by substantial evidence in the whole record. Even if the applicant conceded that its proposal would exceed the performance standards for the Lower Bridge Way/U.S. 97 intersection, the applications could nevertheless be approved, if the applicant concurrently provided a proposal to address the deficiency in one of the ways ZC 08-1/PA 08-1 Daniels Group, LLC Page 20 of ,31 described in OAR 660-012-0060(3). However, the applicant has not provided a proposal to address those alternatives. Therefore, the hearings officer concludes that the proposal does not satisfy the TPR. 2. OAR 660, Division 15, Statewide Planning Goals and Guidelines FINDINGS: Goal 1, Citizen Involvement. The proposed plan amendment satisfies this goal because the Planning Division provided public notice of the applicant's proposal through individual mailed notice to affected property owners, posting of the subject property with a notice of proposed land use action sign, and published notice of the public hearing in the "Bend Bulletin" newspaper. In addition, two public hearings will be held before the proposed plan amendment is approved, one before the Hearings Officer and one before the Deschutes County Board of Commissioners (board). The staff report and Hearings Officer decision will provide the public with information concerning the proposed plan amendment. Goal 2, Land Use Planning. The proposal has been reviewed in accordance with the county's acknowledged planning review processes, and will be subject to at least two public hearings. Further, no Goal 2 exceptions are required. The proposal is consistent with this goal. Goal 3, Agricultural Lands. The property contains few agricultural soils and has not been cultivated for crops or livestock. The site is not "agricultural" within the meaning of Goal 3. Goal 4, Forest Lands. This goal is not applicable because the subject property is not zoned or designated for forest use. Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. According to the applicant, the site no longer contains aggregate in sufficient quantities to qualify as a "significant site" under Goal 5 and OAR Chapter 660, division 23. The evidence shows that the majority of the aggregate resource is located on the southeastern portion of the site, south of Lower Bridge Way. The site has been closed in accordance with DOGAMI regulations, and the evidence shows that little of the resource remains. The parties apparently agree that vast quantities of diatomite remain, however, they dispute whether the materials are needed for industrial or construction uses in the near future, or that other locations are available to supply long term future needs. Therefore, the hearings officer concludes that removal of the site from the county's Goal 5 inventory is justified, because the market for diatomite is a global market and the supply of the mineral is available on a global scale. There is no evidence that there is a local market for diatomite that could be accommodated by retaining this site in the significant mineral and aggregate inventory. In response to comments that the proposal will only be consistent with Goal 5 if the ESEE analysis for Site 461 is amended to address the relative merits of allowing or not allowing mining on the site based on current conditions, the hearings officer concludes that such a revised analysis is not necessary if the purpose of the amendment is to remove a resource from the protection afforded by the inventory designation. The applicant has requested that the site be removed from the inventory, and there is little or no benefit to retain it. Therefore, further analysis is unnecessary. Goal 6, Air, Water and Land Resources Quality. While a number environmental quality concerns have been identified, the hearings officer concludes that those concerns are ZC 08-1/PA 08-1 Daniels Group, LLC Page 21 of 31 , l r. addressed through environmental quality and health administrative rules. Further, residential development on the site will not be permitted unless the applicant demonstrates that adequate area is available for on-site sewage disposal. Goal 7, Areas Subject to Natural Disasters and Hazards. The subject property contains areas subject to flooding along the Deschutes River, as shown on FIRM panel 41017C0300E. This proposal does not include any development in floodplain areas. Any future development in these areas would be required to comply with the provisions of DCC 18.96, which has been reviewed and approved by FEMA. Goal 8, Recreational Needs. The proposed plan amendment and zone change do not reduce or eliminate any opportunities for recreational facilities either on the subject property or in the impact area, and to the extent the development of residential uses on the property will generate a need for recreational opportunities, the hearings officer concludes that those needs can be served on-site or by existing recreational areas/services. Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout the state for a variety of economic activities. This goal is met because the subject property no longer constitutes a significant mineral and aggregate resource, and therefore allowing it to be re-designated and rezoned for rural residential development will not have adverse economic impacts. Goal 10, Housing. Goal 10 defines needed housing as being housing within urban growth boundaries. This property is outside the urban growth boundary, and therefore Goal 10 is riot applicable. Goal 11, Public Facilities and Services. This Goal requires planning for public services, including public services in rural areas. Goal 11 has generally been held to prohibit the extension of urban services (namely sewer and water) to rural lands outside urban growth boundaries. The present application will not result in the extension of urban services because the low-density development allowed in the RR-10 zone does not require urban services. Any residential development will be of a density that can be served by on-site septic and individual wells. Goal 12, Transportation. This goal is to "provide and encourage a safe, convenient and economic transportation system." It is implemented through OAR 660-012, commonly known as the TPR. Based on the findings in response to the TPR, the hearings officer concludes the proposal is not consistent with Goal 12. Goal 13, Energy Conservation. Goal 13 is to conserve energy. Planning Guideline 3 notes that "[l]and use planning should, to the maximum extent possible, seek to recycle and re-use vacant land..." Surface mining activities have ceased on the site and it has been vacant for some years. The applicant proposes re-use of the land consistent with this guideline, and thus this proposal is consistent with Goal 13. Goal 14, Urbanization. The applicant's proposal does not affect property within an urban growth boundary and the proposed RR-10 zoning designation does not permit urban density levels. Goal 14 therefore does not apply. ZC 08-1/PA 08-1 Daniels Group, LLC Page 22 of 31 Goals 15 through 19. These goals, which address river, ocean, and estuarine resources, are not applicable because the subject property is not located in or adjacent to any such areas or resources. ZONE CHANGE FINDINGS: The applicant has requested approval of a zone change from EFU-LB and SM to RR-10 for the subject property, and to remove the associated Surface Mining Impact Area (SMIA) overlay from property located within a one-half mile radius of the site. However, because the site is within a one-half mile radius of Site 322, the applicant requests that the SMIA be applied to this property, to protect mining uses at that site. C. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.52, Surface Mining Zone (SM) a. Section 18.52.130, Site Reclamation Plan. Prior to the start of mining activity, a site reclamation plan shall be submitted and approved which demonstrates that the mineral and aggregate extraction site can be reclaimed for a subsequent beneficial land use consistent with the designation of such subsequent use in the surface mining element of the Comprehensive Plan. FINDINGS: The applicant had submitted a reclamation plan as Exhibit C to ASP-85-23. The reclamation plan included areas that are exempt from reclamation under DOGAMI standards, and included a proposal to place topsoil and reseed the diatomite mining area. However, DOGAMI did not require reclamation of the diatomite mine prior to closing the site, and it appears that little, if any reclamation has been done in that area. According to evidence from DOGAMI staff, the southeast portion of the site has been fully reclaimed to DOGAMI standards. No post-mining use of the site was identified on the reclamation plan. A. When a site reclamation plan is required by DOGAMI, the site reclamation plan shall be approved by DOGAMI. To the extent practicable, review of the site reclamation plan shall be conducted jointly between DOGAMI and the County. B. When a site reclamation plan is not required by DOGAMI, the site reclamation plan shall be approved by the County in conjunction with the site plan review described in DCC 18.52.070. The County shall review such site reclamation plans for consistency with the site-specific ESEE analysis in the surface mining element of the Comprehensive Plan and the standards and conditions set forth in DCC 18.52.110 and 18.52.140. The County also shall follow the applicable DOGAMI standards and criteria for a site reclamation plan. FINDINGS: Areas southeast of Lower Bridge Way were subject to a DOGAMI reclamation plan and have been reclaimed in accordance with that plan. The mine site northwest of Lower Bridge Way did not have a DOGAMI required reclamation plan. However, a County reclamation ZC 08-1/PA 08-1 Daniels Group, LLC Page 23 of 31 plan was required under SP-85-23, and was attached to that decision as Exhibit C. The applicant proposes to reclaim the site to allow for residential development. b. Section 18.52.200, Termination of the Surface Mining Zoning and Surrounding Surface Mining Impact Area Combining Zone A. When a surface mining site has been fully or partially mined, and the operator demonstrates that a significant resource no longer exists on the site, and that the site has been reclaimed in accordance with the reclamation plan approved by DOGAMI or the reclamation provisions of DCC 18, the property shall be rezoned to the subsequent use zone identified in the surface mining element of the Comprehensive Plan. FINDINGS: The County's inventory of significant mineral and aggregate sites describes SM Site 461 as follows: Site No. Le al Description Type Quantity Quality 461 141300-00-01500, 1501, 1502, 1503, 1505, 1600 Aggregate [Diatomite] 350,000 y 2,000,000 y3 Good Subsection (A) requires the operator to demonstrate that: 1) the site has been fully or partially mined; 2) a significant resource no longer exists on site; and 3) the site has been reclaimed in accordance with DOGAMI, or DCC Section 18.52.130 standards. The applicant asserts that all three conditions are satisfied here. As discussed in detail below Site 461 has been mined. The section below discusses significant resource status. In the Hearings Officer's previous decision in Stott (PA-98-12/ZC-98-6), the Hearings Officer held that the provisions of OAR 660 Division 23 regarding compliance with Goal 5 are relevant to this question. OAR 660-023-0250 provides in pertinent part: (1) [OAR 660, division 23] replaces OAR 660, division 16 * * Local governments shall follow the procedures and requirements of this division * * * in the adoption or amendment of all plan or land use regulations pertaining to Goal 5 resources. The requirements of Goal 5 do not apply to land use decisions made pursuant to acknowledged comprehensive plans and land use regulations. (2) The requirements of this division are applicable to [post-acknowledgment plan amendments (PAPAs)] initiated on or after September 1, 1996. * * * (3) Local governments are not required to apply Goal 5 in consideration of a PAPA unless the PAPA affects a Goal 5 resource. For purposes of this section, a PAPA would affect a Goal 5 resource only if: (a) The PAPA creates or amends a resource list or a portion of an acknowledged plan or land use regulation adopted in order to protecLa significant Goal 5 resource or to address specific requirements of Goal 5[.] * * ZC 08-1/PA 08-1 Daniels Group, LLC Page 24 of 31 In Stott, the Hearings Officer concluded that a plan amendment and zone change to "de-list" and rezone a surface mining site constitutes a "PAPA," and therefore the provisions of OAR 660-023-0180 concerning mineral and aggregate resources apply to such an application to the extent they reasonably can be applied to a decision to remove a site from the county's adopted inventory. The Hearings Officer further found OAR 660-023-180(3) identifies the pertinent standards for determining "significance." This paragraph provides: (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 any one 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) The material meets local government standards establishing a lower threshold for significance than subsection (a) of this section; or (c) The aggregate site was on an inventory of significant aggregate sites in an acknowledged plan on September 1, 1996. FINDING: Significant Resources: Mineral and aggregate are not the same resources. Mineral resources refer generally to all inorganic materials that are extracted from the earth and put to beneficial use. It includes precious metals, valuable minerals, diatomite, as well as rock and sand. "Aggregate," on the other hand, refers to those inorganic substances that are used in road or other construction activities. OAR 660-023-0180 only addresses "aggregate" resources. The county's Goal 5 program primarily addresses aggregate resources, although the definition of "mineral" is broader than the definition of "aggregate" set out in OAR 660, division 23. Aggregate resource is significant if it meets one of the three criteria set out in OAR 660-023- 0180(3). Here, the only potentially applicable standard is OAR 660-023-0180(3)(a).9 OAR 660-023-0180(3)(a) requires a demonstration that the aggregate at the site: 1) meets ODOT specs for air degradation; 2) abrasion; 3) sodium sulfate soundness; and 4) include more than 500,000 tons. The Aggregate Resource Assessment Report prepared by GeoDesign, Inc. and submitted as Exhibit 7 ("Aggregate Report") concludes. that subject site does not satisfy the criteria because it fails sodium sulfate soundness requirents and contains less than 500,000 tons of aggregate. Based on a site-specific analysis, the Aggregate Report estimates the quantity of the aggregate at 211,000 cubic yards. Assuming a tons-per-cubic yard ratio of 2.1, the Report finds 443,100 tons of aggregate on site, less than the "significant" threshold above. s OAR 660-023-0180(3)(b) does not apply because the local government has not established lower standards. OAR 660-023-0180(3)(c) does not apply to requests to remove a site from the acknowledged inventory. See Hearings officer decisions PA-98-12 and ZC-98-6, PA-04-4 at page 30 (submitted as Exhibit 15) and PA-06-2 at page 14 (submitted as Exhibit 19). ZC 08-1/PA 08-1 Daniels Group, LLC Page 25 of 31 In the staff report, staff expressed some concern regarding the evidence the applicant provided to support its assertion that the aggregate resource is no longer significant. First, staff noted that the soundness test was very limited. Second, staff observed that the applicant's estimate of remaining aggregate is based on shallow borings, and not on a more comprehensive geologic analysis. The hearings officer agrees with staff that the evidence is somewhat equivocal, but in the absence of evidence that undermines the applicant's assertions, the hearings officer finds that the applicant has demonstrated that the site no longer contains a significant aggregate supply. With respect to diatomite, the aggregate significance standards do not apply because diatomite is a mineral, not aggregate, resource. Neither local law nor administrative rule define what: a significant "mineral" resource is, although it can be assumed that the county concluded that the diatomite located on the property was "significant" enough to justify its inclusion in on the Goal 5 Mineral and Aggregate inventory. In addition, the value of diatomite in the global market justified the rezoning of the property to SM, and the approval of mining in 1985. The applicant has provided information in the submitted burden of proof that there is no economic incentive to mine diatomite on the subject property due to ample global supply, low profitability, less expensive substitute materials, and undesirable environmental impacts. Due to its limited usefulness in the local market, and the evidence that other materials provide a more suitable replacement, the hearings officer agrees with the applicant that diatomite is no longer a "significant" mineral warranting protection. Reclamation: The Deschutes County Code requires that the site be reclaimed in accordance with a reclamation plan approved by DOGAMI or the reclamation provisions of DCC 18.52, DOGAMI has found the site to be reclaimed according to its standards. As the DOGAMI memo explains, 61 acres on tax lots 1503 and 1505 were covered by an operating permit for gravel extraction, and reclamation has been completed there. The overburden stockpiles on that area have been revegetated, are stable, and may remain until used for on-site development. The former DIATOMITE mining site (west of Lower Bridge Way) is exempt from reclamation requirements under ORS 517.770 because it was part of a mine that existed before 1972. Site Plan approval SP-85-23 included reclamation specifications. Below is a summary of the applicant submitted reclamation plan, attached as Exhibit C to the Hearings Officer Decision in SP-85-23. The applicant has stated that the topsoil is stockpiled and will be replaced on the area mined approximately 12 inches deep. The applicant proposed to motorgrade the site and seed it with fortress red fescue, Idaho fescue, and mixed bunchgrass at a rate of 40 pounds per acre planted in the fall with fertilizer and mulch. The applicant also proposes to plants evergreens for shade and windbreaks on the site. The evidence shows that this plan has not been implemented. Condition 1 of SP-85-23 also required an updated reclamation plan to include measures to prevent materials from eroding into the Deschutes River. Staff has been unable to locate this updated reclamation plan. For these reasons it is Staff's opinion that the applicant has not met the rezoning criteria of DCC 18.52.200(A). There is significant confusion as to the relationship between the DOGAMI reclamation standards and DCC 18.52.200(A). DOGAMI has the statutory authority to regulate reclamation over sites located in Deschutes County, and its reclamation standards supersede local ZC 08-1/PA 08-1 Daniels Group, LLC Page 26 of 31 standards. Therefore, unless the applicant agrees otherwise, sites that are exempt from reclamation under DOGAMI regulations are similarly exempt from other, more restrictive local standards that could be imposed as a condition of land use approval. Thus, as a practical matter, the only role the county has in the reclamation process is to identify a post-mining use. If the post-mining use is established prior to the adoption of a reclamation plan, the plan must be consistent with that post-mining use. Here, the evidence shows that the applicant proposed to replace the overburden and seed it as part of its total site reclamation plan. Those reclamation activities were not required in the DOGAMI reclamation plan, and the evidence shows that the applicant did not follow through with its proposed reclamation plan. The question then, is whether the county can hold the applicant here responsible for the deficiency of a prior mine operator, when it had no authority to impose the condition that the prior mine operator voluntarily acceded to? The answer, the hearings officer concludes, is "yes." The applicant proposed to reclaim the diatomite mined area, and the application was approved in part, based on that plan. The county had the authority while the mine was active to enforce any and all of the provisions of the approval. DCC 18.52.150. Those conditions similarly must be fulfilled prior to rezoning the site for a post- mining use. Therefore, the hearings officer concludes that this proposal must either be denied because conditions precedent have not yet been fulfilled, or conditioned to require the described reclamation as part of the residential development of this site. B. Concurrent with such rezoning, any surface mining impact area combining zone which surrounds the rezoned surface mining site shall be removed. Rezoning shall be subject to chapter 18.136 and all other applicable sections of this title, the Comprehensive Plan and Deschutes County Code Title 22, the Uniform Development Procedures Ordinance. FINDINGS: Should this zone change be approved, it will also remove the surface mining impact area combining zone which surrounds the rezoned surface mining site. However, as noted above, Site 322 is located within one-half mile of the site. Therefore, a SMIA that covers a one-half mile radius of that site must remain on nearby property and must be applied to this site. 2. Chapter 18.136, Amendments a. Section 18.136.020, Rezoning Standards The applicant for a quasi-judicial rezoning must establish that the public interest is best served by rezoning the property. Factors to be demonstrated by the applicant are: A. That the change conforms with the Comprehensive Plan, and the change is consistent with the Plan's introductory statement and goals. FINDINGS: In previous Hearings Officer's decisions, it has been held that comprehensive plan goals and policies do not constitute mandatory approval criteria for quasi-judicial zone changes, but rather are implemented through the zoning ordinance, and therefore if the proposed zone change is consistent with the applicable provisions of the zoning ordinance it also will be consistent with the plan. ZC 08-1/PA 08-1 Daniels Group, LLC Page 27 of 31 The applicant has argued that the public interest is best served by taking the subject property out of mining use. Due to increased rural residential development in the area, and decreased value and demand for diatomite, the applicant argues that diatomite mining is no longer compatible with the area or desirable for the landowners. Rezoning for residential use will provide incentive and the economic resources to clean up the aesthetic and environmental impacts of decades of mining. As noted above, with the exception of transportation-related policies and criteria, and compliance with the county-approved reclamation plan for the site, the proposed plan map amendment and removal of the site from the county's inventory of significant mineral and aggregate sites are consistent with applicable plan policies and the Statewide Land Use Planning Goals. The proposed RR-10 and SMIA zoning designations are consistent with the proposed plan designations. Therefore, the proposal, so long as it is also consistent with the zoning ordinance, is consistent with the plan. B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. FINDINGS: The applicant is proposing a zone change from Surface Mining to Rural Residential (RR). The purpose of the RR zone, set forth at DCC 18.60.10 is: The purposes of the Rural Residential Zone are to provide rural residential living environments; to provide standards for rural land use and development consistent with desired rural character and the capability of the land and natural resources; to manage the extension of public services; to provide for public review of nonresidential uses; and to balance the public's interest in the management of community growth with the protection of individual property rights through review procedures and standards. FINDINGS: The proposed zone change is consistent with this purpose statement because re- development of the site will create a rural residential living environment consistent with the rural character and capabilities of the land and resources. To the extent existing conditions affect the carrying capacity of the land, air and water, those issues can be addressed through compliance with applicable state health and environmental quality regulations, or through compliance with the county's development standards. C. That changing the zoning will presently serve the public health, safety and welfare considering the following factors: FINDINGS: The site is currently an unused diatomite and aggregate surface mine. Prior activities on the site have adversely affected public health, safety and welfare, although some: of those impacts have been ameliorated. The hearings officer concludes that overall, redevelopment of the site for rural residential uses will presently serve the public health safety and welfare by providing the developer with an incentive to reclaim the site. ZC 08-1/PA 08-1 Daniels Group, LLC Page 28 of 31 1. The availability and efficiency of providing necessary public services and facilities. FINDINGS: All utilities are available and currently serving other nearby properties, including the RR-10 zoned subdivision to the southeast, and adequate County road frontage is available. While the question is not without doubt, the hearings officer also concludes that the applicant has failed to demonstrate that the proposed rural residential zoning will not significantly affect local transportation facilities. However, if the applicant proposes measures to ensure that the standards are satisfied, the application could meet the applicable transportation-related public improvement standards. The hearings officer concludes that "public services and facilities" within the meaning of this standard does not include private domestic wells, individual subsurface sewage facilities or private roads. To the extent water availability and water quality fall within the category of "public services and facilities," the applicant provided evidence that it has a limited use water permit to allow for dust suppression and irrigation of re-vegetated areas. The applicant also testified that its preliminary testing shows that adequate water is available to develop individual or group wells for domestic water supplies. Domestic wells must be drilled in accordance with Oregon Water Resources Department well drilling standards, which includes a requirement that the well not inject contaminated water into an aquifer, or cause perched water to move to another aquifer. There is substantial evidence in the record to show that these standards are met or can be met through conditions of development approval. 2. The impacts on surrounding land use will be consistent with the specific goals and policies contained within the Comprehensive Plan. FINDINGS: The applicant has stated that rezoning the property will not adversely impact surrounding property because residential use is consistent with the existing residential uses adjacent to the subject property, and will not increase adverse impacts on agricultural uses on other nearby properties. A neighboring farmer testified that he supported the proposal. D. That there has been a change in circumstances since the property was last zoned, or a mistake was made in the zoning of the property in question. FINDINGS: There have been several changes in circumstances, and new information that shows that mistaken assumptions were the premise of the current zoning. Part of the subject property was zoned Surface Mining in 1985 and the remainder in 1989. The 1985 zoning focused on only the diatomite resource, and was premised on the assumption that diatomite would be economically productive for export. At that time the property was zoned Surface Mine Reserve, and the applicable Comprehensive Plan assumed that land so designated "will ultimately be mined." The applicable Plan also lowered the burden of proof for changing the zoning to Surface Mining because "the material here sought to be mined consists of non-aggregate materials which are most probably to be used for export as there is currently little local demand." In spite of low local demand, the Hearings Officer found that the potential to export diatomite satisfied "the need question." Applicants were "in the process of negotiating large scale contracts for the delivery of [diatomite]" and the county found that construction of a processing plant in Malheur County would "enable exportation by the applicants." Because the ZC 08-1/PA 08-1 Daniels Group, LLC Page 29 of 31 site had already been used for diatomite mining, the Hearings Officer found that rezoning would simply facilitate more use and exportation of the resource. However, circumstances have changed since 1985. Because the identified global supply of diatomite will satisfy global demand for a very long time, the Lower Bridge Way site is not needed. Environmental regulation and fuel costs have increased, while profits for diatomite have decreased. Therefore, according to the applicant, mining diatomite from the site is no longer economically viable or necessary. The second rezoning, as part of the ESEE analysis for site 461, in 1989-1990 focused on the site's aggregate (as opposed to a mineral) resource. It followed the 1988 Deschutes County Goal 5 Aggregate Inventory, which identified an aggregate resource of 350,000 cubic yards. It is unclear from the record how this amount was estimated. In the ESEE analysis for site 461, the Board identifies the key values that form the basis for the determination of SM zoning for the mine site. These include the importance of aggregate resources to development in Deschutes County, the value to the County economy in terms of materials and jobs, the presence of an estimated 350,000 cubic yards of aggregate on the site, and that the site is located near a major roadway for highway maintenance and construction jobs. Neither the mine location nor the importance of aggregate resources to Deschutes County have changed since the last zoning of the property. However, the current estimate of aggregate resources on the property has fallen to 211,000 cubic yards. Also, the current Aggregate Resource Assessment Report indicates that the aggregate on the site does not meet ODOT specifications. This report also indicated that the aggregate resource cannot be profitably mined. These issues constitute a change in circumstances within the meaning of this criterion. IV. RECOMMENDATION For the most part, the hearings officer agrees with the applicant the site does not include significant mineral or aggregate resources and that it is appropriate to remove the site from the county's Goal 5 mineral and aggregate inventory. In addition, the hearings officer concludes that the site does not include agricultural or forest soils, and cannot be put to resource use. Therefore, a non-resource designation is appropriate. However, for the reasons explained above, the hearings officer concludes that the applicant has failed to demonstrate that the proposal is consistent with the TPR, or that reclamation of the site will occur in accordance with the approved reclamation plan for the site. Therefore, the hearings officer concludes that these applications cannot be approved. If, however, the board of county commissioners concludes that the proposal does satisfy all applicable approval standards, the plan amendment and zone change may be conditioned to address some of these concerns. DCC 18.136.030. The hearings officer recommends that the following conditions be imposed concurrent with the amendments to the plan and zoning map. 1. As part of any residential development approval for the site, the applicant shall include an informational section in its CC&Rs that detail the history of the site, including the remediation efforts taken by the applicant and its predecessors in interest. In addition, if fill is brought onto the site, the applicant shall identify the general location of the fill, and if the site is used for development, the applicant shall either certify that the fill is suitable for development, or specifically declaim any knowledge of its suitability. ZC 08-1/PA 08-1 Daniels Group, LLC Page 30 of 31 2. The applicant shall implement the reclamation plan set out in SP 85-23 or shall implement an approved modification to the reclamation plan that permits the site to be redeveloped for residential uses. Dated this 06 day of August, 2008. Mailed this _ day of August, 2008. I a~.~ 6u'~' An Corcoran Briggs Hearings Officer THIS DECISION IS NOT THE FINAL DECISION OF THE COUNTY. THE DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS RENDERS THE FINAL DECISION FOR PLAN AMENDMENTS AND CORRESPONDING ZONE CHANGES. ZC 08-1/PA 08-1 Daniels Group, LLC Page 31 of 31 SCHWABE, WILLIAMSON & WYATT 9mr ATTORNEYS AT LAW Mill View Way Building, 549 SW Mill View Way, Suite 100, Bend, OR 977021 Phone 541.749.4044 Fax 541.330.1153 1 www.schwabe.com TIA M. LEWIS Direct Line: 541-749-4048 E-Mail: tlewis@schwabe.com December 3, 2008 VIA E-MAIL AND FIRST CLASS MAIL Ms. Laurie E. Craighead Assistant Legal Counsel Deschutes County Legal Counsel 1130 NW Harriman Avenue Bend, OR 97701 Re: Lower Bridge Road; ZC-08-01 and PA-08-01 Revised Reclamation Plan for SP-85-23 Dear Laurie: This letter is to address the concern of Commissioner Luke that he expressed at the November work session in regard to the reclamation requirement from the SP-85-23 Site Plan approval on the above referenced matter. As shown by the evidence in the record, SP-85-23 covered an 18 acre area which was mined for aggregate, sand and gravel. Enclosed as Exhibit BOCC 1 is our proposed reclamation plan for the area, together with the following condition of approval which we propose to be attached to the Plan Amendment and Zone Change approval. The applicant shall complete County approved reclamation of the 18 acre area covered by SP-85-23 through a modified reclamation/re-vegetation plan based on the provisions of the reclamation plan submitted by the Applicant dated December 3, 2008. The modification to SP-85-23 shall be processed as a land use decision pursuant to DCC 22.36.040 and shall be completed prior to or concurrent with any further land use applications for development approval on the subject area. Portland, OR 503.222.9981 1 Salem, OR 503.540.4262 1 Bend, OR 541.749.4044 Seattle, WA 206.622.1711 1 Vancouver, WA 360.694.7551 1 Washington, DC 202.488.4302 PDX/ 1 1 6094/ 1 5 07 52/MER/3178907.1 Ms. Laurie E. Craghead December 3, 2008 Page 2 This condition can be supported by findings under DCC 18.52.200 that compliance with that criterion is feasible through the modification of approval process and the completion of the proposed reclamation plan. Rhyne v Multnomah Co., 23 Or LUBA 442(1992). Sincer Wy, Tia M. Lewis TML:bh Enclosure: As Stated 98*1 PDX/ 116094/ 15 0752/MER/3178907.1 Lower Bridge Road Reclamation Plan December 3, 2008 While the Lower Bridge Road site is not subject to the Department of Geology and Mineral Industries (DOGAMI) reclamation requirements, the applicant has used the standards relied upon by DOGAMI as a guide to developing the current reclamation plan. DOGAMI relies on OAR 632-030-0025 for reclamation plan requirements. Each plan is unique based on the site specific characteristics, but the rule says in part that a reclamation plan include provisions for the backfilling, recontouring, topsoil replacement, seedbed preparation, mulching, fertilizing, selection of plant species, seeding or planning rates, and schedules. The original SP-85-23 Site Plan approval condition required stockpiling of the topsoil from the affected area and replacement on the mined area approximately 12 inches deep. Additionally, the area was to be motor graded and seeded with fortress red fescue, Idaho fescue, and mixed bunchgrass at a rate of 40 pounds per square acre planted in the fall with fertilizer and mulch. The applicant had also proposed to plant evergreens for shade and windbreaks on the site. These standards were proposed by the applicant at the time and where not based on any standards. This plan was unrealistic as it did not include any provisions for watering and did not consider the short growing season. Specifically, planting in the fall would not allow the seed to survive given the germination requirements and early frosts that are experienced. The current plan for reclamation includes re-vegetation consistent with future residential development. Any areas that will not be used for future building sites, right of ways, or utilities will be re-vegetated concurrent with site development. The present plan respects the natural character of the area and considers the limited and scare water resources available for re- establishment of native vegetation. The current plan is designed to be successful based on recognized standards for the area. This plan considers the availability for water on a temporary basis to help establish the vegetation initially. Long term maintenance of the natural areas is planned to be provided through future CC&R's that will be established with the future residential development. The following standards will be used for re-vegetation for the 1985 Site Plan area. TOP SOIL The placement of topsoil that was removed from the mined area has been replaced and graded. For the 1985 site plan area, the top soil has already been replaced and graded to the original site conditions. VEGETATION SEED MIXTURE A mixture of seed is proposed, consisting of the following species and rates: a. Great Basin Wild Rye 5.5 lbs per acre b. Annual Ryegrass, var. "gulf' 20 lbs per acre c. Idaho fescue d. Sheep fescue 1- PDX/ 116094/ 150752/M ER/3174875. l 1.5 lbs. per acre 1.5 lbs. per acre EXHIBIT BOCC 1 Page I of 4 It is recommended that the natives (Great Basin Wild Rye, Idaho fescue, and Sheep fescue) be drilled into the soil. Subsequently, the annual ryegrass can be broadcasted over the area along with the fertilizer. Because the pivot will be applying water to initially control dust, the wetted surface conditions should prevent any significant wind displacement of the broadcasted ryegrass and fertilizer. It should be noted that native grasses are slower to germinate and establish than species such as annual ryegrass. Indeed, our research suggests that native grass seed application efforts can take up to two to three seasons to achieve significant rooting and cover crop conditions. The advantages to drilling the natives and broadcasting the annual ryegrass will be: a) to achieve a much more rapid vegetative cover that will sooner aid in wind blown soil events. Germination times for annual ryegrass in a typical soil environment in Central Oregon is approximately 5-6 days; and b) the initial cover of ryegrass will stabilize conditions for the later germinating native grasses. SOIL MOISTURE STABLIZER Apply approximately 20 lbs per acre "ZEBA" to control soil medium moisture content in the immediate surface layers. ZEBA is an absorbent polymer based on cornstarch that is biodegradable, nontoxic, and odorless. FERTILIZER Apply a fertilizer 16-16-16 mixture of fertilizer (equal parts nitrate, phosphorus, and potassium). Fertilizer will be applied at an approximate rate of 300 lbs per acre. Again, fertilizer will be applied along with the broadcasted annual ryegrass. Because of the typically low nutrient content of the planting medium, on-going fertilizer applications may be warranted to insure the more rapid development of an organic surface horizon. One future scenario could include applying manure as a more cost-effective alternative to granularized fertilizer. SEEDING AND PIVOT OPERATIONS As suggested in the groundwater monitoring plan for the site, adjustments of the pivot cycle will be adjusted as necessary - with a likely pivot cycle setting in the range of 30-60 percent. Based on an approximate rate of 239 gpm deliverable through the pressure valves through the length of the pivot, at a cycle setting of 100 percent water would be applied at 1.7 gpm/ac. At a cycle setting of 30 and 60 percent, water would be applied at a rate of 0.51 gpm/ac and 1.02 gpm/ac, respectively. The goals of adjusting the cycle are threefold: a) to control blowing dust events; b) to facilitate seed germination; and c) to prevent overland runoff conditions and soil saturation where vertical or lateral water flow at depth occurs. 2- EXHIBIT BOCC 1 PDX/116094/150752/MER/3174875.1 Page 2 of 4 The land owner will contract with an adjacent farm operator to: a) install the seed, ZEBA, and fertilizer; b) manage and maintain the operations of the pivot; and c) to record water volumes and hours of water applied. TIMING AND MONITORING The success of the planting plan will be determined by the County through on site inspection. The inspections shall begin upon re-vegetation of the area and shall occur at intervals of three months, six months, and one year, with an inspection each year thereafter, until such time as a final plat is recorded for the reclamation area. At the time of final plat recording, the County shall make a final determination that the site has been reclaimed/re-vegetated in accordance with the above plan as determined through the SP-85-23 site plan modification decision. On going maintenance of any reclamation areas that are not developed with residential development (i.e. streets, building foot prints, landscaped yard areas, etc.) shall be covered by CC&R's. EXHIBIT BOCC l 3 - Page 3 of 4 PDX/ 1 1 6094/ 1 50752/MER/3174875.1 C C O O N N .0 N 0 N m (D (D A) 2) < < = = (D (D CD <D <D m ~ ~ rr rr m (D rr rr ~ (D ~ m a U). ~ ~ 0 N 0 r+ m 0 fl1 o 'a N x' (1) o 0 O < O a O cn N P+ (D (D (D (D N CL • CD x O <D O ~ m m (D r., m CD co 2) c cQ ~ II n lD -4 'p O -1 S cD -h O C (D N O to ~D r* 0 N .02: 0 m (C ( N II _ N' 00 II i y t p I I o 00 c (a CD CD " 90 O CD w v O CU n CD C/) ? m~ D W m ~O w 0 cD (n 2- 3 0 < CD ~v n my ° A) ' C CD o n @ 710 m ~(D ~:p < CD CD ~ ~ N p 0 C? o C 0 D CD w n CD Q.. CD 7- 90. 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'f t, 4 ,t s 12 c ~ ~M V 1 t ,J1• 3 7" 1 ~q AFL FI\ty,)c,t [gill (;Pu Q M N 816) D o ~ 0 = -a D'~tmo Parker, I1,C }}}}l a rumdam•rero n•ma - ~PF.WfAt*mp v.ausaswr December 3, 2008 Deschutes County Commissioners 1300 NW Wall Street Bend, OR 97701 RE: Application for Zone Change: ZC-08-1, PA-08-1 Applicant: The Daniels Group, LLC; Owners: Nolan, Weigand, Reimenschneider Dear Deschutes County Board of Commissioners: Regarding The Daniels Group appealing the Hearings Officer's Decision to deny changing this EFU and Surface Mining site to Residential Use on an Industrial Site not proven safe for Human Habitation: A) I agree with and recommend that County Commissioners adhere to the proposals and findings of the Hearings Officer who recommended a denial of this rezone. B) I would like to add my input for you to review before considering such a rezone. This is more than a typical rezone and I hope you consider the toxic past of this property before considering a Residential Use. Due to its toxic history and no proof of doing a complete clean up of this mine site, both non-conforming uses and health and safety should be looked at on this previous illegal toxic dump site and dust pollution mine site. A rezone to change from industrial use to residential use. The entire 576 Acres needs to be examined. The 2 photos attachedlar`e current and show how after an attempt to water and seed, it remains one large dust bowl and a possible health hazard from contamination & silica dust inhalation. Concerns- The Existing Land Uses, the Residents and the Wildlife Rules this would ignore 1. Zoning- Lots 1505 and 1600 have rich Sandy Loam Soil and are currently zoned EFU and SM. I would request that they stay in EFU. This is surrounded by large farms with the same Sandy Loam & both adjacent farms grow excellent hay and other crops. Lot 1501 is Zoned HS, Historical Site, I would like proof that development would not interfere with that zoning and protection. These 3 lots total 334.02 Acres. This rezone would not conform to existing uses Current Zoning which along Lower Bridge Way around to Holmes Rd. is exclusively EFU for 10 miles and in a 2 mile radius is predominantly EFU See Zoning Map attached, Exhibit A. This EFU area is predominantly open space and rural in character. This should remain so per Goal 5 in the ESEE Report, Site 461, see *Exhibit B attached. A PUD of 74 homes is in direct conflict with this goal. 2. Land Use Goals- This proposal is in direct conflict with Goal 5-Natural Resources. * See pgs. 3,4, 5, 10 & 12 in Exhibit B. Also OAR 660, Division 15, Statewide Planning Goals and Guidelines. There are no Clustered or Planned Unit Developments in this area, it does not conform & is in conflict with these Land Use and Natural Resources Goals. Goal 5- Fish and Wildlife - Chapter 23,14 the rezone is in conflict with this Goal which includes: A. Lower Bridge is a Winter Deer Range and we all witness the heavy migration each winter here, noting that the different departments may not recognize the same boundaries, however, we do and will conduct a count and study if you wish, putting politics aside. The ESEE report describes this area as a Winter Deer Range, see pg. 3 "Wildlife" Page Two B. The Threatened Bull Trout exists here and will be affected by the already witnessed and photographed DE runoff into the Deschutes River. The DE has a *saline count of 316, adding salt water to a fresh water stream if watered and causes such runoff which can be deadly to this protected species. This can also enter through the vertically fractured DE. Note: DE mentioned throughout is Diatomaceous Earth and contains Silica. See Professor Dalton's letter and study where 20 samples of the DE at the mine were taken and found to have these high salinity counts. 3. There is "no public need" for additional housingesoecially a PUD, planned unit development in a rural area far from services in this time of an overly saturated housing market with much more inventory than sales in a depressed real estate market. 4. A FUD or Clustered Development as nronosed does not conform with existing State and Federal Waterway Rules: OAR Rules, Div. 40,736-040-0072 & 0040, Exhibit D Does not conform to existing zoning uses and does not conform to the Federal and State Rules- Wild and Scenic River Rules and State Scenic Waterway Rules that are already in effect and are existing rules that future development must conform to. This section is classified "Scenic River" and does not allow clustered housing or a PUD (2 acre parcels and no side lot line setbacks) This density does not conform to the State and Federal River Rules already in place. This is for the continued protection of both the river and the wildlife. We purchased our home and 27 acre property here because of this specific river classification and it's protection at this rural river location. Neighboring properties conform to the River Classification Rules that existed when platted. As this must, too. 5. An EA. Environmental Assessment is needed to look at past toxic waste illegally dumped on site. Only 1 acre of the then 600+ acres site has been tested and those tests were not to residential use standards. Solid Waste, Groundwater Contamination and Airborne DE Health Hazards carried by dust storms and disturbances on site. All need new testing results done and studied, not 1984 results, since more has been dumped here since then, per DEQ and DOGAMI records. The above evaluated before Residential Use is to be considered. The 1984 tests were for Industrial Use-not as stringent as for Residential Use. Without an EA done and more detailed testing to EPA standards: THERE IS A HUGE LIABILITY HERE WITH TOO MANY FACTORS LEFT UNKNOWN BEFORE 74 HOMES BREAK GROUND AND 7,400 FEET OF SEPTIC IS INSTALLED JUST 54 FEET ABOVE THE AQUIFIR AND ABOVE THE PRISTINE DESC14UTES RIVER. See Well Log , Exhibit E, first water is at 54 feet, not 100 feet as stated by DEQ. 6. Under the Clean Air Act, we reauest that an EPA monitored Air Ouality Test be done to National Ambient Air Quality Standards (NAAOS)-for current & future residents This is based on "the best science available" and the only accurate testing method to determine PM, Particulate Matter. This to be done on windy days to determine the airborne particulate matter and dust particle pollution off the mine property's silica based (DE) Diatomaceous Earth that current residents breath and future residents would sit on top of. 7. Documentation of Land Use Conformance and NEPA adeguacv: The adaptation of housing and residential use on top of pure Diatomaceous Earth. Is this safe to build on? Page Three Will the ground be stable enough for 158 structures. 74 homes and garages? And does Residential Use conform to an Industrial Site not cleaned for such a use? Does 65% of Open Space which is pure DE and causes Dust inhalation to residents seem wise? Only 1 yr. of watering is promised. And their 5 acre test area to seed and reclaim did not work. Results were not published and we still see DE for over 2 miles. No proven long term reclamation plan presented or top soil provided to cover the DE. And no water rights. 8. Traffic Safety: ODOT recommended a denial. ODOT performed a Traffic Study and looked at the added traffic and safety from this area to Hwy. 97. Please see their letter of April 21, 2008 sent to the County Sr. Planner and Hearings Officer regarding their review of traffic impact. County Road Data: Also, just recently directly across from the mine right on Lower Bridge Way on one of the many dangerous curves, a farming semi-truck crossed the double yellow line and ran directly into a passenger vehicle. The car was totaled and thevictims were lifted by an Air Life helicopter. A history of this road shows many serious accidents and deaths. This is a farm to market road and used as such. Additional trips of 150 plus additional vehicles will cause even more traffic safety issues. 9. Many land use denials to date: ODOT, the County Sr. Planner, the Hearings Officer and the State in the mine's Measure 37 Claims all recommended a denial to the additional housing and residential use of these Mine parcels. 10. Regarding Due Diligence vet to be done here: DUE DILGENCE NEEDS TO BE DONE BY DEQ, EPA, THE PROPERTY OWNERS AND/OR THE DEVELOPERS OF THIS MINE PROPERTY WITH A TOXIC PAST. Without the correct testing methods done, then cleaned up and monitored this property remains one big risk. On big health and safety issue. To date the mine owners, Frank Nolan et al and the developers, The Daniels Group, refuse to enter into a Voluntary Clean Up Program (VCP) with the DEQ. This per the DEQ at our EHAP meeting a few weeks ago. This is a mine site with EPA File documentation showing: 1. Toxic and Hazardous Waste left on the site for 7-8 years without a permit 2. PCBs found as recently as this past April 2008 (entire site has not yet been tested) 3. Diatomaceous Earth that is uncontrolled, dust pollution and Cristobalite left on site are health hazards and the latter is Cancer Causing, causes cancer and/or death 4. Solid Waste, including rusted drums with waste inside them, recently seen all over site. Waste that has not been tested in these barrels that appear to be as old as the ones brought to Hanford in the mid 80s due to the toxic levels inside them. The 4 areas above, at the very least, need to be tested and monitored and Due Diligence done before Residential Use is even a consideration. Any other measures would be irresponsible and would put public health and safety at risk. Conclusion: This rezone application has brought to the neighboring residents attention the fact that this property is in violation of health and safety rules. Health and Safe on Existing and Future Land Uses at this site- We have read documentation of this illegal dumping and other violations that several departments have ignored in the past at this site. Now it is time for someone to do the right thing. Page Four To put public health and safe before greed. Rezoning to residential before proper testing is done seems premature. Proper Testing to include: EPA Monitored Tests of the Airborne DE, Deep Core Soil Samples taken over entire site (deep core not shallow samples due to The Daniels Group disturbance of the soil in the past year). Groundwater tested above and below the mine site - water tested for contaminants found at the site plus saline counts in both the drinking water (wells) & groundwater & springs. And the recommendations regarding PCBs missed by The Daniels Group's "professionals" to be followed up as stated in PBS Engineering's Letter to PacifiCorp in their Conclusion in their April 17, 2008 letter. The airborne DE is a constant health risk that has no solution with or without this rezone. No long term water, topsoil or seeding plan or proof of reclamation. This should be resolved. This area is Predominantly EFU for a 2 mile radius and Exclusively EFU along Lower Br.- Is Exclusively EFU for 10 miles along Lower Bridge Way and around to Holmes Rd. As a long time homeowner at Lower Bridge living on EFU land, I feel this rezone is unnecessary and does not enhance the rural nature of this area and it's existing uses. Does not conform to current land use. Also, the Decisions of The Hearings Officer on this case should be carried out including Full Disclosure made to any potential buyers of this property now or in the future disclosing what was dumped here and what was not monitored. And a denial of this rezone as she rightly proposed. There is "no need" for additional housing outside the Urban Growth Boundary. This area should be kept in reserve until the need arises and growth reaches this rural area per Urbanization Goal 14. Phil Wong, Suverfund Site Manager requested sampling and monitoring provisions before this site could be released.. This was not and still needs to be done and proven cleaned up before releasing to Residential Use. This is most important to consider for public health and safety. See Exhibit F. Thank you for reviewing my considerations before making your decision on this case. This site is one of the county's biggest toxic waste dump sites in history. Yet is being considered to put people on top of before proper testing and reclamation is done. A huge liability and health risk. Request: The community recently received new information from the State Health Dept., EHAP in regards to public health on this property. I would like to request an extension, more time to look into that please. This would be a part of my community input on this rezone application and appeal. Sincerely c~ Diane Lozito EFU Homeowner P.O. Box 85 Terrebonne, OR 7760 Attachments: Photo of Property today & Exhibits A to F Document Reproduces Poorly (Archived) ZONING MAP 70420 NW LOWER BRIDGE WAY (and additional properties) SM Courtesy of., f4f AmenTitle - I , I LEGEND e ri County City C~rl UGB Q Property of interest Disclaimer: This map was aeatad hom dlgltal databases provided by the Deschutes County GIs. AmeriTitte has provided this intormation as a courtesy and assumes no liability for errors, omissions, or the positional accuracy of the data, and does not waranty the fitness of this product for any particular purpose. Prepared by AmeriTitle on: 02/28/2008 Created for the original recipient, not for further distribution Copyright 0 2008, All Rights Reserved 02 -A 0081 half mile. The rest of the surrounding property to the north is farm and range land. Lower Bridge Estates subdi- vision is located south of the site within one-half mile. There is one home on the Buckhorn Canyon bluff which is in view of the site. Eagle Rock Estate subdivision is within one-half mile east of the property, but no homes were noted. 3. Conflicts analysis. a. Goal 5 Conflicts Natural Resources. 1. Wildlife. The Department of Fish and Wildlife has identified this site for deer winter range, with medium frequency of use. There is also medium sensitive raptor use. The County's appraiser noted quite a few deer tracks in the snow when he went to look at the site. 2. Open space and scenic values. The site's location adjacent to Lower Bridge Road, an arterial on the County's transportation map, requires protection of scenic values along that major road. Views from the road including views of the High Cascades and Smith Rocks to the West. 3. Riparian area and Fish resources. The County com- prehensive plan lists riparian areas on the Deschutes River as being an important riparian zone. In addition the plan indicates the presence of numerous fish species. ODF&W has identified this area as being good for wild rainbow trout and brown trout fisheries. The County's Comprehensive Plan calls for the County to support efforts by ODF&W to manage appropriate stream reaches for wild trout, including supporting habitat enhancement efforts. 4. State Scenic Waterway/Federal Wild and Scenic River. The adjacent segment of the Deschutes River has been designated as a "scenic" river segment in the federal Wild and Scenic River system. The segment has also been designated by the State of Oregon as a state scenic waterway. Designation by State and Federal governments includes a one-quarter mile corridor on each side of the river. The Board finds that a portion of the site falls within the scenic waterway and wild and scenic corridor. The Deschutes River was designated a federal wild and scenic river in this section due to the outstanding 3 - ESEE FINDINGS AND DECISION - SITE NO. 461 ti'7~3 0;? a 0 0 8 2 scenic, fishery, vegetative, and historical/cultural resources in the area. The Deschutes River was identified in the Ragatz study as one of the most important natural features in the County, noting that high proportions of visitors and residents make use of the river for recreational purposes. (According to the river study, no historical/cultural resources are located at this particular site.) 5. Cultural and Historic Sites. Although the staff report indicates the possible existence of an old historic wagon road at the site, nothing in the record substan- tiates this fact. In addition, the Deschutes County/ City of Bend Deschutes River Study (River Study), which inventoried historic and cultural site in the Deschutes Canyon, including this site, indicates that no historic or cultural resources were found at this site. Conflicts Based upon the staff analysis of surface mining impacts on natural resources, the Board finds the conflicts and impacts of surface mining at this site to be as follows: (1) Open space and scenic values are impacted by the removal of surface vegetation, the opening of a pit in the ground, storage of excavated materials, the presen- ce of machinery on the site, the building of in- frastructure, such as access roads, fences, and proces- sing facilities, and fugitive dust emissions. In this case, much of the site has already been mined, much of which is not subject to reclamation laws. (2) Impacts on deer would include destruction of cover and food sources by excavation and surface disturbance, interference with migration routes by surface distur- bance and construction of structures and access roads, an increased risk of being hit by trucks and other vehicles serving the mining site (especially in sites such as this near riparian areas). The effect would generally be to displace deer from such areas. (3) Fish resources would be impacted by increased turbidity and sedimentation to the extent surface water runoff from the site entered the river. It appears that all mining activity appears on the level above the river, lessening the risk of riparian habitat destruction and sedimentation. 4 - ESEE FINDINGS AND DECISION - SITE NO. 461 (4) Impacts on the Deschutes Wild and Scenic River cor- ridor/State Scenic Waterway would include visual impacts from surface and vegetation disturbance (to the extent such impacts are visible from inside the canyon) and possible water quality degradation. The state scenic waterway law allows for mining operations in the scenic waterway corridor subject to State Parks Depart- ment regulation. Mining is not precluded on private lands by federal designation. `6 U"-_ mus[t_tray- 0t, Ai4 Q-0V`5 GL'r2 , The Board finds that the resources identified above conflict with zoning for surface mining in that full protection of such resources, accounting for impacts of habitat destruc- tion and topographical alteration, noise, dust, and in- creased human presence could preclude or limit zoning for surface mining. Conversely, the Board finds that the noise, dust, increased traffic, physical scarring of the landscape and streambed, and loss of vegetation and riparian habitat associated with surface mining at the site would impact wildlife, open space and scenic resources in a manner that would adversely affect those natural resources. b. Land Use Conflicts. Land Uses Land uses in the zones at and surrounding the site are set forth in Appendix A to the staff report. Because of the climate, forest uses are not likely to occur. Conflicts The Board finds that conflicts with the uses in the EFU-80 zone would include: (1) The impacts of noise (including heavy equipment, truck traffic, blasting, processing, and drilling) and dust on persons dwelling in or patronizing noise or dust- sensitive uses in the zone. The Board finds that under DEQ noise standards, all possible uses in the zone would be noise-sensitive uses, except utility uses, geothermal uses, landfill uses, feedlot use, personal landing strips and other mining uses. Presently, the surrounding area is largely undeveloped with only a few homes and farms located within one-half mile. (2) The impact of truck traffic on roads and on public safety. Letters from nearby residents raised concerns `about the narrow County roads leading down to and out of the canyon in this area and stated that increased truck traffic would create a hazard for local residents on the roads. 5 - ESEE FINDINGS AND DECISION - SITE NO. 461 i[:,12 0088 13. Relative Values of the Conflicting Resources. The Board finds that the natural resources and the aggregate resource are important relative to one another based on the following facts: (a) Adequate local supplies of aggregate are important to the economy of Deschutes County. (b) Aggregate resources are a locationally-dependent resource and are in limited supply in the County; at 350,000 cubic yards, this site is a sizeable site on the inventory. (c) This site is well located to provide aggregate for highway 97 construction jobs. (d) The site is currently being used for surface mining. ,/(e) Deer habitat is continually shrinking in the face of 1r~ new development. w (f) The Deschutes River and its corridor is an important natural features in the County, as has been demonstrat- ed at this site by its state and federal designation for Scenic Waterway status. (g) Preserving the Deschutes River is important to the burgeoning recreational economy of the County. Therefore, the Board finds that both the aggregate resource and the conflicting natural resources should be protected. Accordingly the Board finds that under OAR 660-16-010(3) protection o the aggregate resource shall be limited by protection of the natural resources. Conflicting Uses Protection of Mineral Resource 14. Economic Consequences. The economic consequences of pro- tecting the aggregate resource relates to the impacts of surface mining on adjacent uses, the value of aggregate as a commercial commodity and the impacts of protecting employ- ment in the mining industry and the development opportun- ities foregone by development of the site. While the impacts of surface mining may in individual cases have a short term impact on property values of surrounding properties, trend analysis from the tax assessor's records of specific parcels either adjacent to or within one-half mile of both existing and potential surface mines indicates that there were no drastic fluctuations in these property 10 - ESEE FINDINGS AND DECISION - SITE NO. 461 _a. JfI 10Z - 0 0 9 0 17. Environmental Consequences. The Board finds that protecting the site for mining would have negative environmental conse- quences for the same reasons given under paragraph 7 above. The Board further finds that such impacts can be mitigated. Protection of Conflicting Land Uses 18. Economic Consequences. With the exception of geothermal development and farm and forest uses, all uses in the surrounding zoning designations are c assed as noise sensi- tive uses or purposes of DEQ noise regulations. Farm uses may be noise sensI-Ei.ve uses in certain situations, such as with livestock operations; in this case, the owner has indicated that that would not be a problem. Protection of surrounding conflicting uses can have the ffect of preclud- in or i.ma ing further surface mining activity due to noise regulations. Likewise, dust,_ traffic and aesthetic impacts ✓ place constraints on surface mining operations amongst conflicting land uses. While the elimination of part or all of any one site (except R.L. Coats's site No. 308 in 17-12-18 of 10 million cubic yards and Willamette Industries' Sites 441-443) would not significantly impact the total supply of aggregate in Deschutes County, if every site with conflicting uses were eliminated for that reason, Deschutes County would be unable to meet its aggregate needs. Almost every aggregate site has some degree of conflict with surrounding land uses. In light of that fact, each aggregate site takes on importance, as cumulatively, individual sites with conflicts could be eliminated and prevent the County from meeting its aggregate needs. 19. Social Consequences. The Board finds that the social conse- quences of allowing incompatible development to preclude the use of all or part of this site would be the same as those under the natural resource discussion above. 20. Environmental Consequences. The environmental consequences of protecting land uses at the site and surrounding land uses is mixed. Protecting the conflicting land uses could well preclude mining at the site. This would have positive environmental consequences in that the noise, dust, traffic, and aesthetic im acts ssociated with sur ace mining wou However, protecting the conflicting land uses, especially in a site suc as tsiis f -is lv redeveloped, can also have negative environmental impacts. Thus, if the site and surrounding areas become developed, the , do, can ave a e rimen a impact on wi i e a 1- tat, re ucing t Re overa supply of food an mover and ncreasing competition for adjoining undeveloped habitat. 12 - ESEE FINDINGS AND DECISION - SITE NO. 461 I (JET - x.054 the quasi-judicial process. This would zone the remainder of the parcel SM. This contains 1.5 million cubic yards of gravel which meets ODOT specifications. There was some discussion about whether this was part of the subdivision parcel. They will look into this. Mr. Gunzer had provided some conservation easements with the subdivision and the surface mining zoning. The site is located at Lower Bridge. It was the concensus that they needed a little more information on this site. Mr. Read will present that to the Board when it is prepared. It was suggested that there be a site visit before making a decision. It was noted that the old wagon road, which is a public road, goes through the middle of this site. That was filed in Crook County. There were no specific conditions e o e staff report. Site 461 is is the old diacolite site on Lower Bridge Road. It is 60 acres owned by Franklin Nolan, Fred Gunzer, Robert Reimenschni de , an Norman Weigan. The resource tie is aggregate and diacolite. s/C ~c Mr. Read noted that the previous site contains diaco ite as well. Diacholite contains si_ liea~ it's used in glass, mushroom bedding, ~7L `'ti ers, it y litter, decorative uses, and many other uses. This site contains a higher quality resource that they are looking at new uses for. They have done core drillings and it does go down 80 to 90 feet. T_ h is co e -a major mining_ opgx"i the county if they fnTther develop same of the uses being researched. Co smmi stoner Throop indcated_he would like a site visit. Site 450 This is in the EFU-40 zone located southeast of Terrebonne. This site is above the river, and probably not too far from the mobile home park and the state park near Smith Rocks. This is a Central Oregon Irrigation District site with 10,000 cubic yards of fill material. This is about one half mile south of Smith Rock Road. There was a photo of the site showing that there has been some fill taken out and there is some debris on the site. Site 543 This site is owned by Keith Cyrus and is located on Jordan Road. There is a letter on file from Bill Boyer testifying in favor of the site if they access from a certain direction. This is a 70 acre site containing 1.1 million cubic yards of good quality aggregate. Staff had recommended approval with standard conditions. Site 248 Mr. Read stated that this site is southwest of the intersection with Highway 126 and Slayton Road. This is Mr. Cyrus's present cinder pit. It is a pre-existing cinder pit. Staff report had 4 .4,Document Reproduces Poorly (Archived) r i" y?:'i T r kk C- Document Reproduces Poorly (Archived) e r~ Nip ~ .r _r ' >r/4 K a 1 4 THE PROGR Scenic Waterways Desibmation A river or river segment can be designated as an Oregon Scenic Waterv,ay by one of three ways: • By the governor. After studies by OPRD and favor- able recommendations from OPRD and the Water Resources Commission, the governor may designate a scenic waterway. The new designation becomes effective if the Legislature has no objections. • Direct legislative action. The Clackamas River was added to the system by the Legislature in 1975. In tact, parts of new rivers (and one lake) were added this way in 1933, 1985 and 1957. The governor can veto this legislation at any point. • Public initiative. The voters of Oregon, following a successful initiative campaign, established the program in 1970 by a vote of 2 to 1. In 1988 the system doubled as a result of Ballot Measure , The governor or the Legislature cannot veto public initiative. Scenic Waterways Boundai-y A scenic waterway includes the river and its shoreline, and all land and tributaries within one quarter mile (1320 feet) of its banks. Land outside of this isn't in the jurisdic- tion of the Scenic Waterways Program and isn't affected by the Oregon Scenic Waterways Act. River Classification A river's classification is an important component of a Scenic Waterway Management Plan. Each designated waterway is given one (or possibly more, if the river is long or complex) of six classifica- OWN tions, which describe the general appearance of the landscape along the river as well as the amount and type of development. These classifications reflect a range of river environments and a variety of land uses and development densities for that environment. The classifications are also guidelines for OPRD and other agencies to evaluate how well new development blends into the existing landscape. What is allowed and not allowed varies from classification to classification, depending on what is compatible with the existing scene as viewed From the river. For example, uses that fit into a more densely developed residential area will not necessarily blend into an agricultural or forested setting. The following pages illustrate examples of the classifications and their standards of development. Within all of these classifications, development standards vary depending on existing development and the appearance , of the landscape. !diver Community Area 4 Fr- 04 A Natural River Area is undeveloped, and pristine or near pristine. It is accessible only by trail, boat or airplane. While the landscape of a Natural River Area can vary from steep-walled canyons to forested foothills, its character is consistent: primitive, very scenic, and conveying a sense of solitude. Evidence of human use in a Natural River Area is usually limited and any structures or indication of settle- ment are rare or scattered. Because a Natural River Area is undeveloped, any change has great potential to affect its natural beauty. A Natural River Area is designed to preserve and protect its primicve natural condition. Stringent standards for concealing all developments from the river are applied. River recreation activities compatible with a primitive setting and with very low visual impact are allowed. Conditions for Use A Natural River Area's dominant feature is its natural, primitive character. To assure adequate protection within the corridor: • All new structures and developments must be com- pletely hidden (screened) from the river, usually by topography (landform). Public recreation facilities and natural resource protection measures (e.g., stream bank protection) may be visible from the river only if absolutely necessary. Their appearance must blend into the natural landscape and in no way dominate the view from the river. An Accessible Natural River Area is similar to a Natural River Area in character and lack of development, but an Accessible Natural River Area can be usually reached by road. Typically, the access road is unpaved and passable only during warm, dry seasons. An Accessible Natural River Area is managed like a Naturd River Area. The undeveloped, pristine character of the area is protected and preserved, with stringent standards for screening new development that can be seen from the river. Conditions for Use To protect and preserve the natural character of the view from the river: • All new developments must be completely screened from the rive;, usually by topography. • Existing roads cannot be extended or improved. • Public recreation facilities compatible with the undeveloped, primitive condition of the landscape are allowed. Scenic River Area yam-.. A Scenic River Area may have nearby development, but for the most part is undeveloped and natural appearing The dominant human influences in a Scenic River Area are Natural River Area Accessible Natural River Area r.r'1.ti-rti `r _ _ road & raiiraad It agriculture and grazing. Roads may be nearby, but are lightly traveled and not easily seen from the waterway. Power lines may be visible. A Scenic River Area is managed to protect the scenic l quality created by the combination oFagricultural and natural features. Agriculture and recreation activities compatible with existing land uses are allowed. Conditions for Use In general, certain structures and improvements can be visible from the river, but they must: • Be related to agricultural, residential or recreation activities already visible. • Meet the general design standards for building (height, color and materials). • Meet local •aoning requirements or density standar s established by the waterways program. Third house t is ogiad _ ~ topraphy Visible from river Less visible \y from rimer y T E An example of a density standard exists along the Rogue River Only residences er mile ma ybe vise 1e along each bank of its Scenic River Area,. J1Tt c density standard is already net, new structttreS musr be screened from view by topography. If only on_ house is visible, the new house may be seen, but must me.a the unilorm standards for color, wall and roof materials, and height. Natural Scenic View Area -.A-* . . Developed Undeveloped ~i L ti sl fn vi. a at G I 736-040-0072 Middle Deschutes River Scenic Waterway (S) Scenic River Area: (a) From Deschutes Market Road at approximately river mile 157 downstream to the south boundary of the Wilderness Study Area at approximately river mile 131, excluding the Cline Falls Dam and powerhouse section between the State Highway 126 Bridge and river mile 144 and the Crooked River Ranch River Community Area, the river is dassitd Scenic River Area. 736-040-0040 Classification of Scenic Waterways and Segments Thereof (1) OAR 736-040-0040 through 736-040-0075 supplement, but in no way alter, other provisions of these rules and regulations. Notification procedures set forth in OAR 736-040-0030, 736-040- 0035 and 736-040-0080, relating to Land Management, are applicable to these rules. In order to establish varying intensities of protection or development based on special attributes of each area within the scenic waterways, the following classifications are established: (b) Scenic River Areas: (A) Those designated scenic waterways or segments thereof with related adjacent lands and shorelines still except for agriculture and grazing, but accessible in places by roads. Scenic River Areas may not include long stretches of conspicuous or well4 aveled roads paralleling the river In dose proximity, but may include extensive areas in agricultural use; (B) Scenic Areas will be gdminLc&= l to magi, or enhance hio Mic auW ty. recreational -yalue. fishery and wikttffe bob~Tat while wand allowing continuing agricultural uses. Attached: "The Oregon Scenic Waterways Program" 1. River Description and Map showing each classification along a river. 2. Scenic River Area: (River Classification at Lower Bridge) "A Scenic River Area" may have nearby development, but for the most part is undeveloped and natural appearing. The dominant human influences in a Scenic River Area are agriculture and grazing. Roads may be nearby, but are lightly traveled and not easily seen from the waterway. Power lines may be visible. A Scenic River Area is managed to protect t(ie scenic quality created by the combination of agricultural and natural features. Agriculture and recreation activities compatible with existing land uses are allowed". CONDITIONS FOR USE: "Meet local zoning requirements or density standards established by the waterways program". Well Query Report Well Log Query Results 2/24/08 10:56 PM Townsh ip: 14 S, Range: 12 E, Sections: 9,15,16 well T-RS! ? = ? c $ ° . ; e a : c e t]Q Q q street of well Owner Company ° ° 3 2 Z. s -4 0 Received Bonded I e Log t- a rn y p Gate Constructor V r Z H 3 o o y r` v 3 n C a DESC 53687 14.OOS-12.00E-15 600 NW TEATER ABBAS, ROGER ABBAS JACK SE-SE TERREBONNE 6827 NE 33 REDMOND OR 97756 W 450.00 472.00 297.0 25.0 02/19/2001 03102/2001 , ABBAS WELL DRILLING CO 135704 39427 J pESC 57720 14.00S-12.00E-15 1000 NW 93 ST ABBAS, ROGER 6827 NE 33RD ABBAS, JACK SE-SW TERREBONNE REDMOND OR 97756 W 360.00 392.00 310.0 15.0 02/15/2001 03/0212001 ABBAS WELL DRILLING CO 135707 39428 J BUCKNER, DESC 2C81 14.005-12.00E-16 NO~AN, RIEMENSCHNEOER, WEIGAND 2276 W HIGHLAND W 138 00 310 0 1 ORVAIL ORVAIL REDMOND OR 97756 . .0 20.0 500.0 12110/1984 122111984 BUCKNER 4 WELL DRILLING DESC 2085 sw 14.OOE-18 Sw SW SW BALDWIN, DAN 915 S 14TH ST W 80 00 13 00 10 0 McCoy, BOB LEWIS & - - REDMOND OR 97756 . . . 15.0 02121/1979 0312711979 CLARK DRILLING CO. 4 INC DESC 53988 14.00S-12.00E-15 600 TEATER RD WILDE, FRED 1660 NW 9TH UNIT C AIKEN, WILLIAM D NE-NW REDMOND OR 97756 W 367.00 495.00 298.0 30.0 0711012001 07/1312001 AIKEN WELL 141544 48231 J DRILLING 2ESC 54248 14.008-12.00E-15 NW SE 1200 21030 NW TEATER AVE MACKAY, RON 1000 CINAMON TEAL DP. W 441 00 472 00 283 0 50 0 11 08/ ABBAS, JACK - TERREBONNE REDMOND OR 97758 . . . . 1 2001 11/14/2001 ABBAS WELL DRILLING CO 142275 49383 J DEBC 54978 14.008-12.00E-15 700 LOWER BRIDGE HANEY JULIE DAKIN, BILL 1428 OLYMPIC OR W AIKEN, WILLIAM D NE-SE ESTATES , DAVIS CA 95616 297.00 480.00 290.0 30.0 09/2612002 0913012002 AIKEN WELL 152726 56067 J DRILLING DESC 56843 14.005-12.00E-15 SW NE 1500 70555 NW 89TH PLACE BOYER, DAVID PETER BUILT HOMES 1952 SW 35TH W 427 00 450 00 282 0 A BBAS, JACK - TERREBONNE OR . . . 25.0 03/18/2005 0328/2005 ABBAS WELL 170002 73240 J DRILLING CO DESC $7015 14.005-12.00E-15 1100 70400 NW 93RD CALDER, GARY 3904 TWIN CHURCH RD W 461 00 490 00 316 0 30 0 09/1 / THOMSON, JAMES SE-SW TIMINSVILLE SC 29161 . . . . 4 2005 101032005 AIKEN WELL 176302 78812 DRILLING 14 008- 12 00E-18 10000 LOWER NOLAN WEIGAND AND RIEMENSCHNIEDER BUCKNER, RO T DESC 58358 . NE . SE 1509 BRIDGE RD, 895 SW 23RD ST W 54 00 240 00 74 0 550 0 12 1 BER - TERREBONNE REDMOND OR 97758 . . . . / 12007 02/04/2008 WESTERN 195123 94381 J WATER DEVELOPMENT Report a problem with the web page or a well Iog Download Data Return to Well LogQueEy http://apps2.wrd.state.or.us/apps/gw/well-log/well_report.aspx?q=b...har=S&range=12&sctn9=1&sctn15=1&sctn16=1&range_char=E&pagesize=10 Page 1 of 1 site MIMMt Oragon operations Office Following are my comments on the cleanup plan for Deschutes Valley as proposed by PCC. 1.) There are several areas of Judgement that will be applied where there is no criteria or provision for consultation with state of EPA. These areas include the 'area of concern' in phase I step 07 and the extent of soil removal in Phase II. These points should be clarified. 2. )There is no provision for the sampling and monitoring of the groundwater. This should be required if DEQ expects to give a release for the property. I would suggest that the release be conditional so DEQ could cry back later if the problem has not been solved. 3.) I assume that all the companies named in the plan are authorized to haul, treat or dispose of hazardous wastes. 4.) ghat level or oversight will be maintained by State? Call if you have any questions. Thanks for the chance to comment, I'm sorry that this is late. PWONGma 10/27/83 2785P TES n s o~ VEe a s { File Number: Applicant: j.. :Li 1s r3 I A13 79- N,C/NLZX > C. Hearings Officer/ Administrative Law Judge Courthouse Annex / Bend, Oregon 97701 / (503); 38' 6626 15031'382=8721 Michaei T:; Dugan DESCHUTES COUNTY HEARINGS OFFICER PUBLIC HEARING, August 27, 1985 FINDINGS AND DECISIONS SP-85-23 Franklin Nolan et al Request: An application for a site plan to allow surface mining or aggregate rock in an SM Zone. This request would also allow rock to be crushed on site. Planning Staff Representative: George Read Planning Staff Recommendation: Approval Public Hearing: A public hearing was held in Conference Room A of the Deschutes County Courthouse Annex, Bend, Oregon, on Tuesday, August 27, 1985 at 7:00 p.m. Burden of Proof: In order to receive approval of this request, the applicant must demonstrate compliance with Article IV, Section 4.100 of PL-15, the Deschutes County Zoning Ordinance. FINDINGS: 1. Location: The subject property is located northwest of the intersection of Lower Bridge Road and the Deschutes River and is further described as Township 14S, Range 12E, Section 16 (index map), tax lots 1501, 1052, 1600, and 704. The subject zone change may also involve tax lots 1507 and 1508 which are shown on the applicant's map but not listed on the application. 1. Zone: The subject property is zoned SMR, surface mining reserve. 2. Comprehensive Plan Designation: The subject property is 1 - FINDINGS AND DECISIONS v designated as surface mining reserve on the comprehensive plan map. 3. Site Description: The subject property consists of 550 acres. The majority of the subject site has, in the past, been mined for diatomaceous earth. The site generally has previously been disturbed and most of the vegetation appears to be volunteer vegetation which has reestablished itself on the site. Access to the site is directly from Lower Bridge Road. Land use in the surrounding area consists of surface mining property currently being mined to the east; large parcels (over 100 acres in size) to the northeast, north, and northwest; undeveloped parcels to the south, and a subdivision consisting of 10-acre lots to the southeast. There is very little development of any kind in the immediate area of the proposed surface mine. The subject property is zoned Surface Mining Reserve and the surrounding property is zoned EFU-80. The exception to this is the existing property to the southeast which is currently being mined and is zoned Surface Mining. 4. Proposed use: The use will involve the removal and crushing of aggregate and diatomaceous earth. A front-end scoop, cat, crusher, washing equipment, hot plant and ready-mix plant trucks are propsed uses. Reclamation is to begin 30 days following completion date. Ground stability is proposed to be ensured by natural stabilization, including maintaining the slopes. The applicant has stated that the topsoil is stockpiled and will be replaced on the area mined approximately 12 inches deep. The applicant proposed to motorgrade the site and seed it with fortress red fescue, Idaho fescue, and mixed bunchgrass at a rate of 40 pounds per acre planted in the fall with fertilizer and mulch. The applicant also proposes to plant evergreens for shade and windbreaks on the site. No drainage problem has been noted on the site and visual screening is generally not a problem on the site except adjacent to the Deschutes River and Lower Bridge Road. The applicant has stated in the section regarding water impoundments of the burden of proof statement that public access for fishing will continue along the Deschutes River. Section 4.100 of PL-15, the Deschutes County Zoning ordinance, establishes the uses permitted in the Surface Mining Zone. Extraction of sand and gravel, topsoil and other aggregate material, stockpiling, storage, crushing, processing, washing and sizing aggregate material are considered outright uses in this zone. The applicant has applied for a zone change from SMR to SM and, if the zone change is approved, the proposed uses would be outright uses in this zone subject to this site plan review. Section 4.100(5) of PL-15 establishes setbacks within a Surface mining zone. The subject proposal meets the setback requirements of this zone with the possible exception of: "b) At least a 300-foot setback shall be maintained from 2 - FINDINGS AND DECISIONS 6 all property lines adjoining roads that are Landscape Management areas as defined by the Comprehensive Plan, as well as from any stream or lake unless a shorter setback can be shown to have no negative visual or aesthetic impact." There is a portion of the lot located within 300 feet of the Deschutes River. It is unclear from the site plan whether or not any mining will occur in this area. There is a relatively steep slope upward to the west from the river to the subject site and, if no mining occurs near the edge of the top of the slope, it does not appear that it will be visible from the river. Additionally, a portion of the site contains an outslope of diatomaceous earth which slopes steeply to the river. Any additional surface mining will exacerbate the potential of pollution and erosion of this material into the Deschutes River. To prevent any such erosion or possible pollution, the site plan will be required to include a current reclamation plan for the immediate removal of all material which may erode into or pollute the Deschutes River. The primary problem with this application is the lack of specifics regarding the sites to be mined. The application seems to request that the entire parcel be subject to this site plan review. However, the applicant's Exhibit C designates two areas totaling approximately 18 acres for sand and gravel removal. The staff believes that these are a only areas which should be considered as part of this review. I believe that the application also fails in specificity, in that the specific areas of the site plan are vague. The applicant currently use 3-4 semi-truck loads of diatomaceous earth per week, but expect to increase dramatically in the future. There is no certainty as to how large of an operation it may be. The remote nature of this site, prior mining and the existing stockpiles from which most of the aggregate material will be removed, seems to lower the applicant's burden in fulfilling the site plan requirements of the Zoning Ordinance. The site and reclamation plan generally meets the requirements of the Deschutes County Zoning Ordinance with certain exceptions cited in this report. These problems include the visual impacts from the Deschutes River and Lower Bridge Road, demonstration that there will be adequate overburden to establish vegetation on the site once mining is completed, improving the steep slopes on the stockpiles along Lower Bridge Road, and designating the location of processing equipment. DECISION: This application, although vague, will be approved subject to the following conditions: 1. The applicant shall submit a current reclamation plan for the immediate removal of all material which may erode into or pollute the Deschutes River. 2. The applicant shall submit and receive approval of the, 3 - FINDINGS AND DECISIONS s ~ - Planning Director a specific operations plan prior to the mining of any material. 3. Should the current intensity increase to more than 20 semi-truck loads per week, a site plan review will be required. 4. Operaton shall be limited to 12 hours per day. THIS DECISION BECOMES FINAL 15 DAYS FROM THE DATE MAILED, UNLESS APPEALED. DATED this 18 day of September, 1985. MICHAEL T. DUGAN Hearings Officer MTD/vh cc: file BOCC City of Bend Planning Director City of Redmond City Planning Director Deschutes County Planning Director Deschutes County Public Works Department Frank Nolan Steve Stadum Fred Gunzer Vauniece Lidell 4 - FINDINGS AND DECISIONS Deschutes County Board of Comnnissioners Comments on File : ZC-08-1 f PA-08-1 1 am submitting this letter in support of the original decision by the the Deschutes county hearings Officer in this matter which requested a change of zoning from EFU to RR-10 . Nothing of substance has changed in regard to the circumstances surrounding the original application by The Daniel Group, LLC. In seeking to dismiss the the findings of the hearings office , particularly in the specifics of requiring disclosure to future buyers of this land area that it has been a Toxic waste disposal site , the applicant is not only admitting that such a disclosure would likely create a problem for them , But perhaps more importantly , they are demainstrating the same per-chant for dishonesty that has characterized much of their efforts to "white wash " the specific issues of the rezoning and the mitigation of obvious existing problems with the site. There is a long and well documented history of deceit regarding this property not only by the current owners but by the previous owners as well. The applicant has shown little regard for the clean-up and upgrading of the site. the decidedly marginal effort to "reclaim" land on the existing 5 acre test parcel by seeding and watering on a D. E. area have proven thus far to be a failure. There is little demonstrated reason to believe that such lack luster and disingenuous effort on their part will satisfy the eery reasonable requirements to protect the public safety and contribute to the general public well being of the County by seeking to sell off a waste land as a residential building area . The potential of 74 homes being clustered in a one quarter mile stretch of this waste area without substantial mitigation work being completed prior to ANY development is fairly incomprehensible. The level of disturbance of the existing questionable soils would intensify an all ready existing problem for surrounding neighbors. At this Juncture , with an obvious down turn in the economy and a large drop in home sales in the county , It seems all the more questionable to secure a hasty , ill conceived shift of zoning which at the very least would be a substantial erosion of the existing rural character of the surrounding area ; almost all of which is zoned as EFU. Until such time that the= applicant dernonstrates a more ulst and equable effort in these affairs , I strongly encourage the Commissioners to deny them the considerations they are seeking , Icy appreciation for your time and effort on behalf of the people of Deschutes County. SINCERELY Douglas I--Haines 71160 Lower bridge Terrebonne, Or 97760 disingenuous effort on their part will satisfy the very reasonable requirements to protect the public safety and contribute to the general ;public well being of the County by seeping to sell off a waste land as a residential building area . The potential of 74 homes being clustered in a one quarter mile stretch of this waste area without substantial mitigation work being completed prior to ANY development is fairly incomprehensible. he level of disturbance of the existing questionable soiis would intensify an all ready existing problem for surrounding neighbors. At this juncture , with an obvious down turn in the economy and a large drop in home sales in the county, it seems all the more questionable to secure a hasty, ill conceived shift of zoning which at the very least would be a substantial erosion of the existing rural character of the surrounding area , almost all of which is zoned as ERR. until such time that the applicant demonstrates a more just and equitable effort in these affairs , I strongly encourage the Commissioners to deny them the considerations they are seeking . My appreciation for your time and effort on behalf of the people of Deschutes County. Douglas Haines 711 60 Lower bridge -i'errebonne, Cr 977660 Patricia Lawrence 70955 Lowergridge Rd Terrebonne, OR 97760 541-279-0841 December 3, 2008 Community Development Department Planning Division Attention: Will Groves, `jenior Planner 1 17 NW Lafayette Avenue Send, Oregon 97701 Pile # Z.C-08-1, PA-08- Dear Mister Groves, It is time to put a stop to the good old boys club that back public officials that will sign off on development even on ground previously used as a toxic waste dump. I am writing with grave concern about the toxic waste dump near Terrebonne. Environmental injustice occurred in the 705 when the DEQ,granted Deschutes Valley Sanitation a liquid and industrial waste permit. According to the DEQ, the permit was based on "grossly misrepresented" soil samples. After the DEQ,discovered that the site was inappropriate for clumping, they did not do anything about it for 8 years. We have recently learned that the site has not been cleaned to acceptable human environment standards. Today we have chromium, PCF)s, lead, and cyanide above, in, and below the ground. These toxic wastes are blowing in the air, high school kids are wandering around in the stuff, deer walk through the site and the Deschutes (liver and Deep Canyon abut the edges of the 600-acre dumpsite. I am concerned that toxic waste may migrate to the aquifer, river and drinking wells. The purpose of this letter is to express my number one concern with protecting public health and safety And now the owners of this 600-acre toxic waste dump want to build a housing development. It would be criminal to allow them to sell homes to unknowing people that will be put in harms way. The proposal to re-zone the area for residential use should be denied because the landowners/developer have made no provisions to make the site safe to EPA "acceptable human environment standards" for uncontrolled Toxic Waste and Airborne Pollution. expect to see you require that an Environmental Assessment be conducted on the entire site to test for the following: 1) Toxic waste, PCPs, volatile organic compounds in the aquifer, the Deschutes River and area drinking wells. 2) Locate, document, and remove all solid waste above grade and below grade at the entire mine site and where it has been deposited off-site by wind and rain. 3) Require that all of this is done before any building activities begin and before any property is sold. And this should be under the financial burden of both the DEQ.and the landowners. 4) Require that the owners/developers state how the site got cleaned. 5) (Require that the site never 6e permitted for residential use, because 74 wells and septic systems on fractured permeable diatomaceous earth may create serious health issues to the present residents of the Lower bridge valley. 6) Require that no vertically fractured diatomaceous earth 6e watered as this has been documented as dangerous and will speed the migration of toxins to the aquifer, the Deschutes River and drinking wells. 7) Require that topsoil and native grass seed 6e applied to this entire site. 8) Recommend that the best use of this property would 6e a wildlife refuge, which will keep people off of this uninha6ita6le site. The situation have described here is extremely disappointing and I think many people are at fault and they should 6e ashamed of themselves. The coupling of greed and negligence in this issue shocks me. Thank you for your time, consideration, and diligence towards Justice and safety. `jincerel Lee Stone 70955 Lower Bridge Rd Terrebonne, OR 97760 541-279-0841 December 3, 2008 Community Development Department Planning Division Attention: Will Groves, Senior Planner 117 NW Lafayette Avenue Bend, Oregon 97701 File # ZC-08-1, PA-08- Dear Mister Groves, It is time to put a stop to the good old boys club that back public officials that will sign off on development even on ground previously used as a toxic waste dump. I am writing with grave concern about the toxic waste dump near Terrebonne. Environmental injustice occurred in the 70s when the DEQ granted Deschutes Valley Sanitation a liquid and industrial waste permit. According to the DEQ, the permit was based on "grossly misrepresented" soil samples. After the DEQ discovered that the site was inappropriate for dumping, they did not do anything about it for 8 years. We have recently learned that the site has not been cleaned to acceptable human environment standards. Today we have chromium, PCBs, lead, and cyanide above, in, and below the ground. These toxic wastes are blowing in the air, high school kids are wandering around in the stuff, deer walk through the site and the Deschutes River and Deep Canyon abut the edges of the 600-acre dumpsite. I am concerned that toxic waste may migrate to the aquifer, river and drinking wells. The purpose of this letter is to express my number one concern with protecting public health and safety And now the owners of this 600-acre toxic waste dump want to build a housing development. It would be criminal to allow them to sell homes to unknowing people that will be put in harms way. The proposal to re-zone the area for residential use should be denied because the landowners/developer have made no provisions to make the site safe to EPA "acceptable human environment standards" for Uncontrolled Toxic Waste and Airborne Pollution. I expect to see you require that an Environmental Assessment be conducted on the entire site to test for the following: 1) Toxic waste, PCPs, volatile organic compounds in the aquifer, the Deschutes River and area drinking wells. 2) Locate, document, and remove all solid waste above grade and below grade at the entire mine site and where it has been deposited off-site by wind and rain. 3) Require that all of this is done before any building activities begin and before any property is sold. And this should be under the financial burden of both the DEQ and the landowners. 4) Require that the owners/developers state how the site got cleaned. 5) Require that the site never be permitted for residential use, because 74 wells and septic systems on fractured permeable diatomaceous earth may create serious health issues to the present residents of the Lower Bridge valley. 6) Require that no vertically fractured diatomaceous earth be watered as this has been documented as dangerous and will speed the migration of toxins to the aquifer, the Deschutes River and drinking wells. 7) Require that topsoil and native grass seed be applied to this entire site. 8) Recommend that the best use of this property would be a wildlife refuge, which will keep people off of this uninhabitable site. The situation I have described here is extremely disappointing and I think many people are at fault and they should be ashamed of themselves. The coupling of greed and negligence in this issue shocks me. Thank you for your time, consideration, and diligence towards justice and safety. Sincerely, Chris Lawrence 70955 Lower Bridge Rd Terrebonne, OR 97760 541-279-0841 December 3, 2008 Community Development Department Planning Division Attention: Will Groves, Senior Planner 117 NW Lafayette Avenue Bend, Oregon 97701 File # ZC-08-1, PA-08- Dear Mister Groves, It is time to put a stop to the good old boys club that back public officials that will sign off on development even on ground previously used as a toxic waste dump. I am writing with grave concern about the toxic waste dump near Terrebonne. Environmental injustice occurred in the 70s when the DEQ granted Deschutes Valley Sanitation a liquid and industrial waste permit. According to the DEQ, the permit was based on "grossly misrepresented" soil samples. After the DEQ discovered that the site was inappropriate for dumping, they did not do anything about it for 8 years. We have recently learned that the site has not been cleaned to acceptable human environment standards. Today we have chromium, PCBs, lead, and cyanide above, in, and below the ground. These toxic wastes are blowing in the air, high school kids are wandering around in the stuff, deer walk through the site and the Deschutes River and Deep Canyon abut the edges of the 600-acre dumpsite. I am concerned that toxic waste may migrate to the aquifer, river and drinking wells. The purpose of this letter is to express my number one concern with protecting public health and safety And now the owners of this 600-acre toxic waste dump want to build a housing development. It would be criminal to allow them to sell homes to unknowing people that will be put in harms way. The proposal to re-zone the area for residential use should be denied because the landowners/developer have made no provisions to make the site safe to EPA "acceptable human environment standards" for Uncontrolled Toxic Waste and Airborne Pollution. I expect to see you require that an Environmental Assessment be conducted on the entire site to test for the following: 1) Toxic waste, PCPs, volatile organic compounds in the aquifer, the Deschutes River and area drinking wells. 2) Locate, document, and remove all solid waste above grade and below grade at the entire mine site and where it has been deposited off-site by wind and rain. 3) Require that all of this is done before any building activities begin and before any property is sold. And this should be under the financial burden of both the DEQ and the landowners. 4) Require that the owners/developers state how the site got cleaned. 5) Require that the site never be permitted for residential use, because 74 wells and septic systems on fractured permeable diatomaceous earth may create serious health issues to the present residents of the Lower Bridge valley. 6) Require that no vertically fractured diatomaceous earth be watered as this has been documented as dangerous and will speed the migration of toxins to the aquifer, the Deschutes River and drinking wells. 7) Require that topsoil and native grass seed be applied to this entire site. 8) Recommend that the best use of this property would be a wildlife refuge, which will keep people off of this uninhabitable site. The situation I have described here is extremely disappointing and I think many people are at fault and they should be ashamed of themselves. The coupling of greed and negligence in this issue shocks me. Thank you for your time, consideration, and diligence towards justice and safety. Sincerely, SARAHLEE LAWRENCE 70955 Lower Bridge Rd Terrebonne, OR 97760 541-279-0841 sarahlee.lawrence@gmail.com December 3, 2008 Community Development Department Planning Division Attention: Will Groves, Senior Planner 117 NW Lafayette Avenue Bend, Oregon 97701 File # ZC-08-1, PA-08- Dear Mister Groves, I am writing with grave concern about a toxic waste dump near my ranch in Terrebonne. I recently heard of an environmental injustice that occurred in the 70s when the DEQ granted Deschutes Valley Sanitation a liquid and industrial waste permit. According to the DEQ, the permit was based on "grossly misrepresented" soil samples. After the DEQ discovered that the site was inappropriate for dumping, they did not do anything about it for 8 years. We have recently learned that the site has not been cleaned to acceptable human environment standards. Today we have chromium, PCBs, lead, and cyanide above, in, and below the ground. These toxic wastes are blowing in the air, high school kids are wandering around in the stuff, deer walk through the site and the Deschutes River and Deep Canyon abut the edges of the 600-acre dumpsite. I am concerned that toxic waste may migrate to the aquifer, river and drinking wells. The purpose of this letter is to express my number one concern with protecting public health and safety, which includes my own as I live a mere three miles away. I watch the white diatomaceous earth lift into the air and settle all over our valley, on our land, in our river. This earth was exposed by a mining operation. The diatomaceous earth used to be safely under 24 feet of topsoil. Now it wafts illegally onto my land and into my lungs. The stuff has been embedding itself in my lungs for 25 years. This needs to stop. And now the owners of this 600-acre toxic waste dump want to build a housing development. It would be criminal to allow them to sell homes to unknowing people that will be put in harms way. And we know the landowners are capable of such things, because they did not disclose to nearby residents that this site was a Toxic Waste Dump and that uncontrolled diatomaceous earth contains silica, a known health hazard that causes irreversible health issues, lung cancer and death. The proposal to re-zone the area for residential use should be denied because the landowners/developer have made no provisions to make the site safe to EPA "acceptable human environment standards" for Uncontrolled Toxic Waste and Airborne Pollution. Seventy-four septic systems on diatomaceous earth may cause contamination of the aquifer, river and area dinking wells. This place must be cleaned up and humans should be kept off of this site. This may mean a monetary loss for the landowners, but people who commit such callous injustices by putting people at risk, should be punished for their actions. I expect to see you require that an Environmental Assessment be conducted on the entire site to test for the following: 1) Toxic waste, PCPs, volatile organic compounds in the aquifer, the Deschutes River and area drinking wells. 2) Locate, document, and remove all solid waste above grade and below grade at the entire mine site and where it has been deposited off-site by wind and rain. 3) Require that all of this is done before any building activities begin and before any property is sold. And this should be under the financial burden of both the DEQ and the landowners. 4) Require that the owners/developers state how the site got cleaned. 5) Require that the site never be permitted for residential use, because 74 wells and septic systems on fractured permeable diatomaceous earth may create serious health issues to the present residents of the Lower Bridge valley. 6) Require that no vertically fractured diatomaceous earth be watered as this has been documented as dangerous and will speed the migration of toxins to the aquifer, the Deschutes River and drinking wells. That means NO lawns. 7) Require that topsoil and native grass seed be applied to this entire site. 8) Recommend that the best use of this property would be a wildlife refuge, which will keep people off of this uninhabitable site. I was born and raised is this valley and I plan to spend the rest of my life here. I am feeling extremely vulnerable and I need your help. The situation I have described here is extremely disappointing and I think many people are at fault and they should be ashamed of themselves. The coupling of greed and negligence in this issue shocks me. am saddened by my neighbors' actions. And I hope there will be a remedy before further damage is done. Thank you for your time, consideration, and diligence towards justice and safety. Sincerely, Sarahlee Lawrence BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY In the Matter of the Daniels Group INITIAL BRIEF OF DAVID AND Applications ZC-08-1, PA-08-1 and A-08-15 BECKY BOYER OF DECEMBER 3, 2008 David and Becky Boyer support the Hearings Officer's denial of the Daniels Group applications for the reasons given by the Hearings Officer but believe that there are also additional grounds for denial. The Hearings Officer denied the applications because of the Applicant's failure to prove that the proposal is consistent with the Transportation Planning Rule (TPR) and County transportation standards and because the application had failed to show that there has been or will be appropriate reclamation. TRANSPORTATION ISSUES This application for a plan amendment and zone change is not consistent with Goal 12 and does not comply with the Oregon Administrative Rules (OARs) and OAR 660, Division 12, the TPR, or with DCC 23.60 and DCC 23.24.020(A) and (B). Intersection of Lower Bridge Way/Highway 97. The Applicant's own traffic study shows that the intersection of Lower Bridge Way/Highway 97 will not meet the performance standards of either ODOT or Deschutes County. In an attempt to overcome this basis for denial, Applicant argued for an exception that would allow a proposed new use if it would generate less traffic than the existing use. However, the Applicant had to rely on grossly inflated projected mining traffic for the site to try to prove its case. This projected use has no basis in reality to the actual use of the site or comparable sites and was rejected by both ODOT and the County transportation planner. The Hearings Officer properly concluded that Applicant's assumptions were not supported by substantial evidence. (H.O. Decision, pp. 10, 20) The Applicant's and Kittleson's attempt to argue that traffic under the existing zoning (surface mine) exceeds the traffic impacts under the proposed residential zone are not valid. OAR 660- 012-0060 requires consideration of a "reasonable" worse case existing zoning scenario. Where the Applicant has clearly argued that further mining at the site is no longer economically viable and that there is no longer a significant resource at the site to be mined, it is totally inappropriate to assume traffic levels at the site comparable to an operating mine. The application of the Transportation Planning Rule regarding a reasonable worst case existing zoning scenario is unique in the context of a surface mine zone as one cannot get a zone change from a surface mine zone unless the mining is finished and the resource is technically exhausted. The Applicant in its Burden of Proof asserts: Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 2 "Continued mineral. or aggregate extraction is not economically viable [A]II DOGAMI files on the site have been closed.... Continued mining of the property is economically unviable." (Applic. BOP, p. 1) "[A]ggregate extraction at the site is not economically viable." (Applic. BOP, p. 3) "SM Site 461 no longer has a significant mineral or aggregate resource." (Applic. BOP, p. 5) In this context, a "reasonable" scenario cannot consider traffic impacts of a full blown mining operation. It should also be noted that the Knife River facility is not a comparable site where it is primarily a commercial site, not an actual mining site, and since it is located near Bend and is thus much busier than this remote site next to Lower Bridge. It would be inappropriate to assume that this mining site and its current zoning could generate anything near the level of traffic of a residential zone on the site. The reality is that we would be going from essentially no traffic from the site to 74 peak hour trips impacting the already failing intersection in Terrebonne. The Applicant's Exhibit PH-2 does not constitute substantial evidence for traffic use in the past where the reference to a "massive amount" of material is too subjective and there is no information presented on what peak hour trips occurred during those years. Ultimately, this letter is also irrelevant in terms of assessing now whether a rezone will increase traffic trips, which it obviously will. It is not clear what the Applicant intends of Exhibit PH-3 which refers to mineral and aggregate rights on a property across the Deschutes River and to the northeast which is not part of this application. The Applicant also failed to provide a proposal that would actually correct the problems at the intersection of Lower Bridge Way and Highway 97. In addition, other factors further reinforce the reasons for denial. MOT has proposed closing the Wimp Way access to Highway 97 and a new fire evacuation route for Crooked River Ranch is apparently being proposed. These actions could add yet more traffic onto Lower Bridge Road and thus at the Highway 97 intersection. Lower Bridge Way. In addition to the problem with the intersection at Lower Bridge/Highway 97, the impact on Lower Bridge Way itself would also violate DCC 23.24.020(A) and (B) and DCC 23.60. Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 Though this issue was raised by the public, the Hearings Officer failed to directly address it in her decision, though she did refer to the development as overloading the local road system. (H.O. Decision, p. 15) Lower Bridge Way is already unsafe in a number of respects, as reflected by a history of serious accidents. Adding traffic from as many as 74 more residences would compound the current problems and has not been shown by the Applicant to meet the standard of minimizing the public cost of facilities and services and preserving and enhancing the safety of rural land uses. The Lower Bridge area is an agricultural hub and agricultural traffic would not mix well with this new intensive residential development. RECLAMATION ISSUES 1985 Reclamation Plan. Another basis for denial found by the Hearings Officer was that conditions precedent have not been fulfilled relevant to a proposed reclamation plan. That proposed reclamation plan had been the basis for a 1985 County approval for mining at the site, but the plan had not been carried out. The Hearings Officer addresses the reclamation requirements that top soil be stockpiled to provide a cover 12 inches deep, plus seeding with grass and planting of evergreens. (H.O. Decision, p. 26) These actions have obviously not occurred at the site. The Hearings Officer also suggests that if this application is eventually approved that compliance with this reclamation plan could be made a condition of approval. However, the Hearings Officer fails to specify where this reclamation was to occur and other specific details to make it an adequate condition of approval. ESEE Reclamation. The Economic, Social, Environmental and Energy (ESEE) reclamation requirements for this site are not addressed by the Hearings Officer. The ESEE as well as DCC 18.52.110(K) require that ongoing reclamation be done such that no more than five acres on a site be in a disturbed condition at any time. The owner of the property has clearly not complied with this requirement and such compliance should be a prerequisite before there can be any zone change. Even if DOGAMI has signed off on whatever reclamation has occurred or has excused reclamation because mining activities occurred prior to DOGAMI rules in 1972, the Deschutes County Code has parallel provisions requiring compliance with all standards contained in site reclamation plans even where a plan is not required by DOGAMI. See DCC 18.52.130(B). Reclamation for Residential Use. An additional basis for denial is that the site has not yet been reclaimed so that it is suitable for the residential use intended by this zone change. It is inconsistent with the policy to protect and enhance the safety of rural land uses and the DCC 18.52 requirement that reclamation be Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 4 completed to allow residential use before the site is reclaimed. The existing dust problems at the site make it unlivable. The Hearings Officer expressly disagreed with the County staff recommendation that the prior conditions on the site be remedied before the site can be rezoned for rural residential uses. (H.O. Decision, p. 11) Her reasoning, though, wasn't that the site would be made safe for residential use, but rather that residential use would be more compatible than mining with neighboring residential uses. That misses the point that the site itself isn't suitable for residential use. The Hearings Officer also contends that there is no dispute that the site is not suitable for farm activities. (H.O. Decision, p. 11) That is not correct. In fact, the 1985 reclamation plan on which the Hearings Officer seeks enforcement clearly states, "Grazing is now occurring on land that has been reclaimed." (1985 Decision, Ex. C, p. 1) Even the Applicant apparently assumed that it has to reclaim the site where it has proposed irrigating and planting the site to control dust. The proposed cleanup methods, though, including planting grass, have not actually been shown to be effective and are entirely speculative. Such cleanup is also mentioned only as a possibility and there is no guarantee that if a rezoning does occur that the cleanup will be carried out and will be effective. See the further discussion of this issue under Goal 6, below. GOAL 6 ENVIRONMENTAL QUALITY ISSUES Though a number of environmental quality concerns were identified, the Hearings Officer merely concluded that those concerns "are addressed through environmental quality and health administrative rules." (H.O. Decision, pp. 21-22) That decision is an impermissible abdication of responsibility to implement the Deschutes County Code. Whatever other environmental quality and health administrative rules there are under DEQ and other agencies, the Deschutes County Code still requires a finding of compliance by the County. Additionally, Goal 6 requires addressing these environmental issues. Dust Control. The Applicant presents a number of exhibits relevant to this subject. After reviewing these exhibits, it is clear that the plan amendment and land use applications are premature where the Applicant has neither completed a needed environmental investigation of the site nor done any of the cleanup or revegetation necessary for the site. There is simply no basis for the Hearings Officer to conclude that these applications comply with Goal 6 or with Code requirements where so much of the investigation, cleanup and revegetation work has yet to be done. The May 14, 2008, letter from DEQ regarding the Voluntary Cleanup Pathway (VCP) does not really add much to the record. All that the DEQ letter states is that the VCP process is a feasible approach to resolve environmental issues. There is no suggestion that there is any particular program or plan of cleanup that is either feasible or is available to the public for review as part of this land use process to determine whether or not a plan amendment and land use application Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 should be adopted. All that has been presented by the Applicant at this point is a scope of work identifying what needs to be investigated. Exhibits PH-6 (VEGETATION PLANTING PLAN FOR LOWER BRIDGE SITE, NOLAN, REIMESCHNEIDER, WIEGAND) and PH-7 (MONITORING PLAN FOR LOWER BRIDGE SITE, NOLAN, REIMENSCHNIEDER, WIEGAND) are presented as "DEQ approved" plans. There is no reference cite to this DEQ approval and there is certainly no basis for considering DEQ to be an authority on the vegetation planting plan for the proposed water use. These plans are also highly questionable in terms of their effectiveness for the overall site where they are limited to the "area watered by the pivot irrigation," as referenced in Exhibit PH-6, and the even more limited "140 acres," as referenced in Exhibit PH-7. Furthermore, it should be noted that Exhibit PH-7 includes this caveat, at page 3, "Although work is underway on a vegetation plan, species selection, fertilizer selection, seeding rates, and potential soil amendments have yet to be finalized." Exhibits PH-8 and PH-9 are affidavits from Rex Barber, Jr. and Bob Riemenschneider. These affidavits are the only evidence the Applicant is submitting as to the viability and effectiveness of the vegetation program and watering. However, neither affiant has experience with a revegetation program as proposed by the Applicant. Mr. Barber has not farmed such mined land. Also, though he states that native vegetation does re-establish itself without supplemental water, the fact is that such revegetation has not occurred on this site. The affidavit assertions about how these sites can be revegetated is undercut by the Applicant's statement in its application that the soils are so poor on the site. The soils in mined areas consist either of "cemented sands and gravel" or "spoils" that "hold moisture but barely support some plants." (Applic. BOP, p. 12) Ultimately, there is still simply no evidence that a site such as this can be revegetated under the limited plan proposed by the Applicant. Applicant's Exhibit PH-11 is meant to respond to testimony by neighbors regarding dust control and environmental cleanup, but it is again telling that this expert states, at page 2: "If measures are in place to control dust and residents do not have prolonged and excessive exposure to dust, neither natural or processed DE in soil would pose unacceptable risks to residents." (Emphasis added.) The problem here is that measures are not in place to control the dust and the residents are enduring prolonged and excessive exposure to dust, as reflected in photos and a video already in the record. Also, the owner's actions in apparently leveling the site have only been exacerbating the problem. Though the Applicant claims that the dust from the site is not toxic and does not contain properties which would cause adverse health effects under normal exposure, there simply is not adequate evidence to establish those facts. There are health effects both with crystalline and amorphous silica. Further, the dust storms as shown in photos and video tape and the number of years involved with exposure to the site further add to the risk. Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 6 The Applicant claims that it is working closely with DEQ to develop a dust mitigation plan, but it is frankly too late to be talking about coming up with a plan after having applied for this residential development. The dust problem needs to be solved before this application and zone change can go forward. The dust mitigation plan is also highly speculative, relying on water, planning and seeding of only 300 acres of the proposed area (and based on only 140 acres of water rights). There is not substantial evidence in the record that such simple watering, planting and seeding of the area will work without additional top soil and without ongoing (rather than temporary) irrigation. Hazardous Material Cleanup. The Applicant refers to the DEQ as agreeing with the voluntary compliance plan as a feasible mechanism to demonstrate and verify the site as safe for residential use. That process, though, is no substitute for the public being able to comment on any proposed plan in the context of this plan amendment and zone change. The VCP process is also no substitute for the public's right to be able to comment on any plan in these land use proceedings. It is entirely premature for the Applicant to be proceeding as it is where its own expert acknowledged in Exhibit PH-5, page 3: "The entire scope of an RI/FS (remedial investigation and feasibility study) cannot be determined at this time... [T]he scope of work required for appropriate removal and disposal of debris, material that potentially contains asbestos, and dilapidated structures is not considered in this memorandum." Despite the representations by the Applicant that the site has undergone an extensive and adequate cleanup process, it is clear that additional work needs to be done, including: 1) The soils in the barrel storage areas and the lagoon need to be resampled for PCBs, lead, chromium, PAHs and semi-volatiles. It is very likely that the detection limits in 1983 (the time of the DEQ cleanup) were not low enough to meet current human and ecological risk-based screening levels. 2) The site should be reevaluated in light of the planned residential development using current risk-based screen values for all potential contaminants. Again, the cleanup goal in 1983 was for an occupational exposure scenario and no ecological or residential assessment was done. 3) The Deep Canyon Springs should be resampled and monitoring wells installed to determine groundwater depth and flow direction and for sampling of any contamination. 4) The 5,600 gallons of liquid waste put into the lagoon in November or December 1975 was apparently gone by January 1976. It likely percolated into the ground, as at that time of the year the evaporation potential would have been low. Only a thin layer of solids is visible in the 1983 photos, suggesting that most of the 5,600 gallons was liquid and it likely went rapidly into the ground. Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 5) If the lagoons were supposed to be impermeable, why is there no evidence in the photos of seasonal ponding, any standing water, water lines, drift lines or vegetation zones? The site needs to be reevaluated for soil and groundwater contamination based on the proposed change in use to residential development. Water Quality/Quantity Issues. 7 The Applicant in Exhibit PH-13 reviews the ownership and depth of wells already located on the property. It concludes that only one well is owned by Nolan, Weigand and Riemenschneider and thus could be used for irrigation of the mine site. No explanation is given why the other wells are owned by people not associated with the land or why that water cannot be used on the land. There is also no explanation why the one well that is owned by the owners isn't being used for irrigation of the site. In Exhibit PH-14 the Applicant asserts that impacts of the irrigation well on the Deschutes River are irrelevant to consideration of the zone change since the dust abatement program must be implemented regardless of the zone change. It is our understanding, however, that DEQ has only "approved" of a dust abatement program. We are not aware of DEQ actually ordering the revegetation to be done. In any event, this revegetation program is an integral part of the Applicant's proposed zone change to allow a rural residential development. The Applicant states that the OWRD Final Order requires that groundwater pumping from the irrigation well be mitigated with 252 acre feet annually in the Middle Deschutes River. The source and location of this mitigation water is not identified in Exhibit PH-14. Regarding impacts of groundwater pumping for domestic water on the Deschutes River, the Applicant's expert states that the maximum peak water need could reduce river flows by a maximum of 0.49 cfs immediately adjacent to the site. It concludes that this amount is insignificant and would not register on flow gauges currently used to measure flow on the river. The expert, though, does not state the context within which this amount is considered to be "insignificant." Cumulatively, in combination with the new irrigation well plus other uses in the area, the water uses associated with 74 or more homes could impact the river. Also, the concern is not only about flows but also about water temperature. The water in the river is much warmer than the groundwater being withdrawn and it is the impact of the loss of this cooler groundwater that is of critical concern as discussed in the Yinger report. The Applicant also relies on the water samples and tests over 20 years old. More current tests need to be made throughout the area, particularly where individual domestic wells are going to be drilled. The Applicant makes general representations about an abundance of water being available in the area, but the Applicant fails to explore the possibility that long-term irrigation of this site is going to be necessary and what effects that might have upon individual wells in the area. There is also a concern of irrigating the land where there are PCBs in the soils that may be transported with this irrigation water either down into the groundwater or into the Deschutes River. Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 8 AGRICULTURAL/LAND USE ISSUES We do not believe it is appropriate to convert this land to residential uses. This is not only because of the issues DEQ has raised about toxicity of the site, but also because a rezoning for residential uses is inconsistent with and will negatively affect the agricultural use of the surrounding area. Lower Bridge is known for being an agricultural area and this proposed rezoning would insert a large subdivision (and all of its impacts) in the midst of it. This is contrary both to Statewide Goal 3 and the County's Comprehensive Plan Goals in Chapter 23.88. The Applicant describes the property as being essentially surrounded by Rural Residential zoning on the east, south and southeast. (Application, p. 5) That is not an accurate description because it fails to acknowledge that the Rural Residential zoning to the southeast is effectively separated from this property by the Lower Bridge Road and other agricultural lands. Only a small bit of Rural Residential abuts the property. There is also very little Rural Residential zoning to the "south" and "east." In contrast, this property is right next to EFU land on its north and west and is separated from EFU land on the south by Lower Bridge Road. There are also large blocks of agricultural land virtually completely surrounding this property. See the color map in the record showing zoning in the area. Though some of the property may be agriculturally non-productive currently, not all of it has been mined and a fair amount of it is certainly suitable for grazing. Even if it was assumed that all mined areas are not suitable for agriculture, that does not mean that all of the property should be rezoned. A significant area has not in fact been mined. Even areas that have been mined could have top soil returned and have grasses planted on it. (Note that some of the reclamation work proposed by the Applicant is to irrigate and grow grass on the mined portions of the land.) Because there are agricultural lands with Class VI soils, the Applicant needs to apply for a goal exception to Goal 3 which is "to preserve and maintain agricultural land." NEED FOR NEW ESEE Additionally, a new ESEE analysis is needed here. The Applicant argues that the County has historically approved plan amendments/zone change requests for surface mining sites without a new ESEE (citing only two cases) but where the ESEE analysis was adopted as part of the County Comprehensive Plan, a new ESEE analysis should be done here. The Applicant contends that the ESEE analysis is not contained in the County Comprehensive Plan, but the Applicant is in error. Ordinance 90-029, at page 8, clearly adopted this and other ESEEs as part of the plan: "Based upon the findings set forth above, the site specific ESEE decisions, set forth in Appendix A and fully incorporated by reference herein, are hereby adopted as part of the Deschutes County Comprehensive Plan." (See attached excerpts.) Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 9 CONCLUSION For all of the above reasons, we respectfully request the Board to affirm the denial by the Hearings Officer not only for reasons given in her decision but for the additional reasons given in this brief. Submitted this 3rd day of December, 2008. - S?. ~Q- ~ PAUL D. DEWEY Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 Deschutes County Planning Commission Comments: File ZC-08-1 and File PA-08-1 County Commissioners: Zone Change request from Exclusive Mining to RR-10 - Appeal Ronald D. Calkins and Wendy M. Calkins Physical address: 70110 NW 83rd Place Terrebonne OR Mailing address: PO Box 2315 Terrebonne OR 97760-2315 We are residents of Lower Bridge Estates adjacent to Mine Property and are impacted by the Mine Property. Comments in Opposition of Zoning Change Request Current Hazardous Waste Risk: Most of the communications on the zoning request change refer to Exclusive Mining and do not approach the fact that this property was a Hazardous Waste Disposal and Storage Site. The December 30, 1987 Report to the US Environmental Protection Agency from the Oregon Department of Environmental Remedial Action Section made these comments in their Report ORD0980837314 : • Hazardous waste included: Cyanides, PCBs, Hexavalent Chromium's, Lead, Gamma radiation materials etc. • The annual precipitation in the region is low, reducing the risk of extensive vertical migration. • Risk of migration of these materials after clean up from the site appears to be small. • Risk of migration " of these materials" to the ground water having occurred exists but the risk also appears to be small. • " Although a final set of samples was not obtained" • The site is in a sparsely populated area although the Deschutes River adjacent to the site has a " high wildlife value " The discoveries in this report were not the result of scheduled inspections. They were the result of notification to authorities of the hazard being created by the operators of the site. This was an unsupervised disposal site for much of the period of time it was in operation. The site was an " unsupervised toxic waste dump site The Owners and Operators of the Mining Site should be Required to obtain " Independent" surface and stratified subsurface tests of soil on the site. The tests should start at ground level and go down to the surface water depth. The testing should include measuring for radio active waste at the storage location and toxic waste at the lagoon at locations. It should also include other locations on the site where random dumping may have taken place. In reading the report in its full context it appears risk factors still remain on that property. Property owners, operators and developers should be required to delay Irrigating of the location until soil tests are complete. It would appear irrigation might increase the " risk of vertical migration" of the remaining contaminates. Page 1 of 3 Current Hazardous Waste Risk, continued: Changing the zoning and allowing families on that location seems contradictory to the State of Oregon report that the site is in a sparsely populated area. It would put families upon the formerly or currently contaminated site. An Enforcement Order should be issued to the Owners and Developer to restore this site to Acceptable Human Environmental Standards and not Industrial Environmental Standards. Traffic Considerations: I am not sure on the actual status of the timing of this comment but there are 5 major areas of concern related to traffic. It is my understanding the rezoning would result initially in 74 housing units. The actual traffic burden is probably computable on your part. The vehicle count would be at least 150 plus traffic expanded by the service and construction vehicles in this concentrated area. I am not privy to traffic studies that have been conducted nor have I seen any signs they have been conducted. Here are the problem areas: • Entry onto Lower Bridge from the proposed development. Entry location onto Lower Bridge Road should be carefully selected. Developer should requited to select an entry point with adequate visibility. • Buckhorn Road: Unpaved. Paved aprons off to Lower Bridge and onto Hwy 126 were only provided at the request of residents who were incurring the risk of spinning tires in gravel trying to get up to a safe hwy entry speed. It is graded periodically to eliminate wash-boarding but recurrence of this condition normally reappears within a week of work done. The County should consider requiring the Developer to improve and pave this roadway. It will become a significant major arterial for the development. It is the primary route to Bend and Sisters. • Lower Bridge Road traveling from the Bridge at the Deschutes River to the Left Hand turn onto Teater: There is a Blind Corner at the turn point from Lower Bridge onto Teater putting residents at risk to head on collision with oncoming traffic. This would be compounded by zoning change and housing development. The Developer should be required to remove tailings currently obscuring vision, develop a set back of 50' from the highway, landscape canyon walls with top soil, develop vegetation and irrigation to mitigate current dust pollution along Lower Bridge Way. • NW 43rd turnoff from Lower Bridge Way to Crooked River Ranch: Every time you travel on Lower Bridge Way through this intersection, you are concerned this is the time someone from the Crooked River Ranch is going to pull out onto Lower Bridge Way and you are going to "T Bone " them. Traffic needs to be slowed down at this intersection. The Developer should be required to contribute to traffic controls or a "roundabout" at this intersection. • Lower Bridge Way entry to Hwy 97 South: Hwy 97 turn onto Lower Bridge Way West: The turn lanes are inadequate. Traffic backs up even in non peak periods and blocks other traffic. The Developer should be required to contribute to the widening of Hwy 97 and the expanding the length of the turn lane on Hwy 97. Lower Bridge needs to be widened at this intersection the turn lane needs to be made longer. The County should consider requiring the Developer to contribute to putting in a traffic light at this intersection. These noted conditions are a concern now before adding any additional traffic to this area. Page 2 of 3 Vegetation Plan is Flawed: The current proposal is for reclamation of mined over area with proposed vegetation that will not grow on the Mine Tailings sufficient enough to curb the current airborne dust problem. There is no plan to cover with top soil to sustain that vegetation. The coverage needs to be the entire acreage not just the area to be developed. Other land owners that have been in the area for up to 10 years have had to bring in top soil to sustain vegetation. The Developer should be required to bring in top soil in sufficient quantities to establish vegetation. If top soil were added, a significant amount of water would be needed to establish vegetation. Assurance would be needed that Water Rights were obtained and consumption would need to be monitored to make sure the Developers and Water Resource Owners were in compliance with the Aggregate Water Rights for the joint properties. The following should be required of the Developer: Installation of monitoring equipment to measure water consumption. Installation of timing devices for measured watering timing to reduce the risk of migration of remaining contaminates into ground water reservoirs. Reporting to appropriate State and or County Officials on water consumption and timing. ( Not any good unless the State or County will follow up on these reports Reports should be public information. Water Resource Evaluation: Drilling wells into the historically contaminated soil could create health risks to the residential occupants. The Developer should be required to develop an off site water source. The Developer should be required to develop a community water system. Irrigating the location would appear to increase the " risk of vertical migration" of any remaining contaminates. Wildlife Considerations: The US Environmental Protection Agency and Oregon Department of Environmental Report Dated December 30, 1987 refers to the Mine and the Deschutes River adjacent to the site as having " High Wildlife Value 1 believe the proposed rezoning compromises this aspect of the site and adjacent area. Signed, Ronald D. Calkins Wendy M. Calkins Page 3 of 3 DOGAMI (Department of Geology and Mineral Industries) also provided key documents about the unreported 50 years of mine site history THAT BEGAN PRIOR TO 1921 and revealed present day Health Hazards. Here is an abbreviated 2 PART history of present day health hazards, discovered thus far - by residents of the Lower Bridge Basin. These statements are based on documents - not opinion or speculation. This i=Environment ne Site that has never been inspected or cleaned to HumaPART 1: From 1921 to 1963: The SOLE PURPOSE of this site was to mine and COOK Diatomaceous Earth to 2,200 Degrees F to make filters. - Beginning in 1921, an average 25-foot layer of topsoil was removed from this entire site to expose and -mine underlying Diatomaceous Earth. - What remains is 576 acres of exposed Diatomaceous Earth that blows in the wind and pollutes the Lower Bridge Basin Residential Areas, Farms, Ranches and the Deschutes River - 25 Tons of DE was cooked 7 days per week for 42 years to make filters This heating process converted DE to Cristobalite - a dangerous Group 1 Carcinogen. 6 companies used this same process and dumped cooked, respirable waste at this site. This process typically created 1-5% Waste. Conservatively, i 1 % Waste generated over 42 years represents thousands of tons of dumped waste. - The Owners of this mine have never disclosed to nearby residents site history - and, that this dangerous cooked waste may be in the uncontrolled pollution emanating from this site and traveled into surrounding residential areas for decades. Why is the "Cooked Waste" from this time period dangerous today? This cooked waste does not biodegrade in soil or water. What was dumped then - is a health hazard today. This small-crystallized material is dangerous to breathe. Low level, long term exposure has caused irreversible upper respiratory disorders: Silicosis, Fibrosis, Lung Cancer and Death. The Uncontrolled Pollution from this Entire Site is Intolerable. DEQ deemed the uncontrolled pollution emanating from this ENTIRE SITE a Public Nuisance. Today, due to resident research, EPA, Department of Health Services and DEQ now knows that cooked waste, with very high levels of respirable Cristobalite was dumped at this site. The owners and applicant did not disclose 50 years of site history to Deschutes County. No Air Monitoring has been done to measure respirable, uncontrolled pollution. No Soil Test have been done to locate cooked waste with Cristobalite The Department of Health Services is now recommending that an appropriate air test be done to Human Environment Standards that measures respirable Cristobalite. DEQ stated at the last public health meeting that specific soil samples would be necessary to locate this cooked waste. What is the Long Term Plan to Control Pollution From this Entire Site? There is no Long Term Plan to control pollution emanating from this entire site. Owners applied for a Limited License to water only 24% of a 576 acre Site for only 12-18 months. The owners have refused to honor a DEQ Reclamation Agreement. There is no plan to vegetate, water and control pollution beyond this short time frame. There is no oversight. Building Houses on a small portion of the site will allow prevailing winds to blow from the West - Eastward across this stripped site directly into residences, properties and pollute the air on a routine basis. High wind gusts are common in the Lower Bridge Basin. Let's take a Look at the Uncontrolled Pollution emanating from this Entire Site. SHOW FILM 1: "Uncontrolled Airborne Pollution" Let's take a look at Uncontrolled Pollution emanating from the Wind and from Human Activity in September of 2008. SHOW FILM 2: "Uncontrolled Airborne Pollution after Limited Irrigation" PART 2: From 1976 to 1983 this mine was an uncontrolled Toxic Waste Site. The DEQ Solid Waste Permit' did not allow Environmentally Hazardous Waste at this site. However, DEQ allowed hazardous waste to be delivered and dumped BEFORE. VERIFYING THAT THE SOIL WAS SAFE TO C CONTAIN SOLID WASTE. The SOIL was proven NOT SAFE to receive ANY KIND OF WASTE after dangerous waste was delivered and dumped because it is VERTICALLY FRACTURED and provides migration pathways to all subsurface waters. DEQ employees involved realized their mistake -then, quit their jobs. The remaining DEQ employees then let Toxic Waste sit at the site for 8 years. Some of the current mine owners bought the site in 1977,r ~a Hazardous Waste remain at the site for 7 years. So what forget? The hazardous waste included 796 fifty-five gallon drums of Toxic Waste. 106 barrels were radioactive and taken to Hanford. Some of the waste was Gamma Level Radiation with a half-life of 4 Billion Years. 80 Barrels were found leaking. In addition, 5,600 Gallons of Toxic Sludge was dumped on fractured, permeable Soil. This waste included high levels of PCBs, Chromium, Cyanide and Volatile Organic Compounds. This Hazardous Waste Incident occurred on 1 acre of land at this 576-acre mine site. DEQ stated the 1-acre was "cleaned up" and issued a No Further Action (NFA) in 1984. PCBs were just found elsewhere at this site. The Entire Site has never been examined. PART 3: RESIDENTS LEARN OF PRESENT DAY HEALTH HAZARDS In 2007 and 2008, residents discovered the following Present Day Health Hazards by doing something extraordinary: Reading Historical Documents 1. Two power substations at this site ran on PCBs. Residents reported this directly to PacifiCorp and inquired about cleanup in February 2008. As a result, PCBs were discovered at this site under the surface and 45 tons of topsoil with PCBs was removed from the site thus far. These PCBs had been under the surface at the site since 1940 -when the substation was installed. PCB Clean up report states that both substations had been recently "disturbed" and graded over. The report states that further site investigation should be done to determine contamination of the vertical and horizontal impact of contaminated soils. This has not been done and people are being allowed to enter this site with no supervision. This location is 58 feet above the water table on vertically fractured DE that provides migration pathways for toxins to the aquifer. 2. In 1980, Copper Waste was reported processed and dumped at this site. No documents state otherwise. This dangerous waste was just reported by DOGAMI to Health Officials in September of 2008 at resident request. This waste has not been looked for or located in the soil at this site. 3. In 1983, EPA, Superfund Site Manager issued a Directive to monitor the Ground Water at this site and stated that this should be done if the state EVER planned to release this property. In November of 2008, Director of EPA Oregon Operations Office informed our community that no documents state that the Ground Water was ever monitored by EPA. Instead, residents that live adjacent to the contaminated site were allowed to move onto their properties and tap into the same aquifer that sits under this mine for years. We were never, made aware that "due diligence" was not done and4hat there was an imminent health threat ° and that our ground water needed monitoring. i 4. In 1983, prior to "clean up" of Toxic Waste, two full barrels of Toxic Waste labeled "Boeing Solvents" were documented on the groun~ 1,000 feet to the South of the other 796 barrels. The soil under these 2 barrels was never tested for leaked radioactive waste. 80 barrels were found leaking hazardous waste in 1983. TOX;ny, Perched water under the site has not been testehe owner's new well hit first water at 54 feet NOT 100 feet as DEQ reported. 5. The reason that DEQ and Hydrologists stated that the soil at this site is unsafe is because it is VERTICALLY FRACTURED and provides migration pathways for Toxic Waste. DEQ documents warn that future irrigation may contaminate the aquifer, the river and area drinking wells. Despite this warning, irrigation is being allowed on top of a site with vertically fractured soil that has never been inspected for buried Solid Waste and Toxic Waste. Two illegal Solid Waste Operations were cited here in late 1990's and in 2006. One of these operations occurred in the exact location of the proposed development. 6. EPA, Oregon failed to follow a 1987 directive to monitor an upgradient well to locate potential sources of Toxic Contamination after the Toxic Waste incident was deemed "cleaned up" in 1984. 7. Today, at this site, there are Buried Toxic Waste lines, Buried Fuel Lines than ran from two 200, 000 Gallon Fuel Tanks to the Mine Buildings, Fuel Sludge on the ground atop creosote logs, partially Buried Barrels containing unknown materials, PCB contamination that needs further testing and large pieces of Solid Waste have recently been graded over that need to be found and removed. All of which have been at this site for decades. Lower Bridge Basin residents agree with the Hearings Officer that the Full Site History must be disclosed to any purchaser of land or home at this site. The Owners and the Daniels Group did not disclosd'e re site history and present day health hazards when they applied for rezone. These omissions and the unwillingness of the owners to enter a DEQ Voluntary Clean Up Program after 8 months are unconscionable. ALL HUMAN ACTIVITY now needs to stop at this toxic site until it is thoroughly inspected, properly tested, monitored and cleaned up to protect public health and the environment before further ground disturbance, irrigation and imminent health threats cause catastrophic mistakes that will put people in harms way. I ask that you AGREE with the Hearings Officer to DENY A REZONE and make Protecting Public Health the Number 1 Priority in the Lower Bridge Basin. Thank you for your time. Respectfully, ~~Y\ ^ 9 / Jenkins 110. Box 85 Terrebonne, Oregon 97760-0085 Exhibit I Requests of Deschutes County Board of Commissioners Regarding Application to Rezone Proposal ZC-08-1, PA-08-1 from Citizens of the Lower Bridge Basin. 10 Pages Presented to Deschutes County Board of Commissioners - December 3, 2008 December 3. 2008 Dear Deschutes County Commissioners, The purpose of this document is to address the Daniels Group LLC Proposal ZC-08-1, PA-08-1) for a Planned Unit Development on the Deschutes River, 6 miles West of Terrebonne, Oregon on Lower Bridge Road. The following requests are from the Citizens of the Lower Bridge Basin who are live in the subdivisions closest to the Mine Site and are directly impacted by this Mine Site. This site is a 97-Year old, 576 -Acre Mine Site has been deemed a Public Nuisance by DEQ and residents consider Present Day Health Hazards at this mine site imminent health threats. The following requests are based on EPA. DEQ DOGAMI documented research from 1921to 2008. Respectfully, Citizens of the Lower Bridge Basin Requests to Protect Health & Safety at the Mine Site West of Terrebonne Oregon and in the Lower Bridge Basin. Require that this entire industrial site be deemed safe for "Acceptable Human Environment Standards" NOT "Industrial Standards." The EPA, Region 10 and the DEQ Dalles Office, were both consulted as to the status of this site and both stated that the site has not been deemed safe for residential use. And, that the "testing methods" were done to industrial standards, not to "acceptable present day human environmental standards." Require that Public Health and Safety be stated as the No.1 Priority and that a Full Environmental Assessment, Monitoring and Testing be done on the "entire site" to Acceptable Human Environment Standards to protect public health for residents at the site and the residents of the Lower Bridge Basin. The proposal to rezone does not address this entire site in regard to "Acceptable Human Environment Standards." The proposal is a woefully inadequate and ignores present day health threats to the Lower Bridge Community at large. It does not provide a short- term or long-term plan to protect the health of area residents. comply with EPA "Acceptable Human Environment Standards." 1. Require that an Environmental Assessment be done on the Entire Site with thorough examination, monitoring and proper testier to Human Environment Standards and not to the current use - a surface mine and industrial use. 2. Require that all testing be done by independent organizations and entities and not appointed by any of the mine property owners, site developer, parent companies or affiliates. Require that all testing be done with EPA approval and supervision. It is our understanding that EPA and DEQ have not conducted any new field tests at this site for 30 years. All new tests were not thorough and done by firms appointed by the owner and developer (the rezone applicants). None of the new soil tests were "Plot Forage Maps" or "Deep Core Samples." A very shallow soil test was done on a versmall portion of the site. This is not acceptable and is inadequate testing for a 576-acre site that has never been inspected that contains known heath hazards. 3. There are known health hazards at this site. Require that all health and safety issues be identified, addressed and completely removed at the entire site before any more site preparation and development projects of any kind are started. Require that this be done before any property is offered for sale, before any develop- ment / construction begins. An, this must be done before any person or the environment is put harm's way. Require that the entire site be inspected, deemed safe, and that owner's show how site was cleaned to Acceptable Human Environment Standards to avoid creating a catastrophic environmental disaster. 1 4. Require that the aquifer, perched water and all water levels under this mine site be tested for contaminants. In addition, require the Deschutes River Dry Canyon Springs be checked for Volatile Organic Compounds, PCBs, Radiation, Cyanide and all other toxic hazards delivered and dumped at this site to comply with EPA "Acceptable Human Environment Standards" not Industrial Environmental Standards. Require that the soil and water at the site be thoroughly examined and monitored over time for Toxic Waste Migration and Contamination of the Vertically Fractured Soil, with known Migration Pathways to the aquifer, Dry Canyon Spring, Deschutes River and drinking wells in the Lower Bridge Basin. On October 27,1983, Phil Wong, EPA Region 10 Superfund Site Manager, issued the following directive to EPA-Oregon Operations Office: " There is no provision made for the sampling and monitoring of ground water. This should be required if DEQ expects to give a release for the property," According to Anthony Barber, EPA Oregon Director just notified residents that there are no documents that indicate that this was done. The property must not be released until this is done. Area residents were allowed to move into the area around the mine site and tap the same aquifer that is under this mine site. There was no warning that the ground water needed to be monitored and that a Toxic Waste incident occurred at this site. It was recommended to the EPA-Oregon that an upgradient monitoring well be tested to locate possible sources of contaminants. This was never done. 5. Require that all Lower Bridge Basin residents be informed with 30 days that the water and soil at this entire site will be thoroughly examined, sampled and monitored for the migration of toxic contaminants. Require that this documentation be made available and that the results be clearly communicated to all residents of the Lower Bridge Basin. Require that all residents of the Lower Bridge Basin community be assured in writing that their private, residential drinking wells contain no toxic contaminants from this site and that the Deschutes River, soil, aquifer and the spring in Deep Canyon are not contaminated. No Area Residents were not made aware that the site has not been monitored and not deemed safe to comply with "Human Environment Standards." 6.Require that the owners/ developer state how this entire site got cleaned. Require that the owners/ developer provide proof that the site is ready for residential use. 7. Require that the soil at the entire site be tested with a "Plot Forage Mau" and "Deep Core Samples" be obtained and analyzed to locate hazardous waste and dangerous respirable waste on top and beneath the surface. For example: Copper Waste, PCBs, Radioactive Waste and Cristobalite (respirable, cooked waste) 2 6. Require that the "entire site" be checked for Solid Waste and Toxic Waste above and below the surface. The "entire site" has never been inspected for solid waste. According to the DEQ Dalles, to truly determine waste dangers at a site, the following tasks need to be done to assess site safety for "Human Residential Standards:" a. Require Ground Penetrating Radar locate ALL above/below surface Solid Waste at the Entire Site. b. Require Entire Site Inspection/ Documentation for Solid Waste at Entire Site c. Require Entire Site Documentation of what is there and what is dangerous d. Require immediate safe removal of ALL dangerous Solid and Toxic Waste with EPA supervision Past operators at this site have been cited for operating two illegal solid waste sites. Solid Waste is visible above grade over much of this entire site. These actions, the Toxic Waste incident, and the many instances of mining violations raise concerns for additional solid and toxic waste that is dangerous may be buried at the site. Require that all of the Toxic Waste and Solid Waste at the entire site be removed safely, with EPA/DEQ supervision to comply with Deschutes County Public Nuisances and Abatement (13.36.012 Al) and that it not be deposited or buried at the site, a recurring issue. Currently visible above grade waste: Dumped barrels (some are full) washing machines, scrap metal, tires, collapsing buildings, dumped lumber, trash, tons of steel and iron debris, oil sludge, large piles of asphalt and abandoned cars are all at the site. Require EPA/ DEQ/ Deschutes County Code Enforcement to inspect the "entire site" for Solid Waste Violations. Solid Waste at this site is in violation of Deschutes County Codes 13.36.012 A. and B. and 13.36.020 and 15.04.070 (Abatement of Dangerous Buildings). Require that the owners/ operators cease bringing Solid Waste to the site, permanently. 6. Require that the owners/ developer to do a Septic Feasibility Test before and after on each individual residence built at this site. The Soil/DE is well documented as being "Vertically Fractured" and provides "Migration Pathways" for toxins to subsurface water at this site. DEQ Documents clearly state that Vertically Fractured Permeable Soil was the reason that any and all delivery of waste to this site was stopped. Documents state that future irrigation at this site may cause contamination of the aquifer, the river, springs and area drinking wells. Require the owners to show how watering vertically fractured DE on a mine site that has never been inspected with documented Toxic Waste is safe and will not contaminate the water in the Lower Bridge Basin. Documents state that waste will migrate into the aquifer, perched water, the Deschutes River, Deep Canyon Springs and area drinking wells. Require that no septic systems be installed on "Vertically Fractured Soil" and show that the soil will prevent all waste from migrating and contaminating waterways and drinking wells. 3 i 7. Require that the owners/ developer comply with Oregon Real Estate Disclosure Laws: Require "Full Disclosure" to buyers of land or housing at this mine site was an uncontrolled Toxic Waste Dump for 8 years (1976-1984) prior to purchase and that ALL of the hazardous waste documents and EPA and DEQ reports be provided to buyers prior to purchase. Require "Full Disclosure" to buyers of land or housing that this site made, stored, packaged and dumped Flux-Calcined Cooked Waste with high levels of Cristobalite, a Group 1 Carcinogen, was dumped at this site for 42 years prior to purchase. Require "Full Disclosure" to buyers of land or housing at this site that uncontrolled airborne DE with Crystalline Silica and Cristobalite are Carcinogens (Health Hazards) if inhaled and that low level, long-term exposure/ inhalation may cause breathing disorders, Silicosis, Fibrosis, Cancer and Death. And, that this site was deemed a Public Nuisance by the DEQ because of Air Pollution prior to purchase. Require "Full Disclosure" that PCBs were found at one of two abandoned substations in April of 2008 and that further testing is recommended for this area and that this area be cleaned before anyone is allowed to spread PCBs further. Require "Full Disclosure" that Copper Waste was reported processed and dumped at this mine site and that the soil has not been sampled with proper testing to locate this dangerous waste. Require "Full Disclosure" that Solid Waste full of unknown materials is currently at the site and is partially buried, fully buried and laying on top of the ground. Require "Full Disclosure" that two illegal Solid Waste Operations occurred at this site in the mid 1990s and in 2006. One operated at the proposed building site, Require that the appropriate county and state officials will Review and Approve All Disclosure Statements and that each land owner, home buyer or renter receive and sign a disclosure statement "prior to purchase or rental" with a full site history. 8. Require that alIDEQ/EPA historical documents and photographs regarding the Toxic Waste incidents be put into Deschutes County paper files and digital files permanently. And, require that all health hazards, past and present be put into these files, permanently. 9. Require that the owners/ developer co _ply with the "Classification 3 Scenic River Designation" and that this proposal abide by this designation completely. Eagle Rock Estate residents, and other area residents, bought land in this area because of this designation, the existing density of homes and the rules that apply to development within this designation. Oregon State Parks required residents near the river in the Lower Bridge corridor to design homes and landscape to comply with this River Designation and so must this applicant. The Rezone Proposal DOES NOT COMPLY with this Scenic River Designation. Require the owners/ developer show how this rezone application complies with the Classification 3 Scenic River Designation. 4 10. In accordance with Deschutes County Law: Require the owners/ developer of the site that the many "open holes" (20'- 90' Deep are Public Nuisances) dug foe mining use at this site at be filled completely with topsoil - not Diatomaceous Earth that has high Levels of Soluble Salt (316). These open holes are a health hazard to humans and wildlife and a violation of Deschutes County Law. Require the owners to obey the law and cover these holes. 11. Direct County Code Enforcement to inspect the "entire site for Solid Waste Violations. Solid Waste at this site is a violation of 13.36.012 A. and B. and 13.36.020 and 15.04.070 (Abatement of Dangerous Buildings). Require that all Solid Waste that be above and below the ground be removed. Some of this waste was recently "graded over." 12. PCBs were found at this site in April of 2008. Forty-five tons of topsoil containing PCBs was removed from this site. Require the owners to show that PBS Engineering and Environmental recommendation was followed and that further site investigation was conducted to determine the full vertical and horizontal extent of the contaminated area 54' above the water table on Vertically Fractured Soil. Require the owner/ developer show the results of "further investigation" and how all of the PCBs got cleaned to Acceptable Human Environment Standards. 13. Require that the owners/ developers not be allowed to conduct mining or any other excavation activities (loading, dumping, vehicular operation, etc) that generates pollution and noise at the site and that no activities be allowed at the site that generates noise or pollution that may be considered a Public Nuisance by residents from this day forward. The rezone proposal allows for mining in close proximity to residences. Require that mining be disallowed, as this will create dust, conflict and pollution that are a public nuisance and health hazard. 14. Require the owners/ developer to show that the entire site is safe and does not have any radioactive waste/ contamination and that the entire site complies with EPA "Acceptable Human Environment Standards." Require that the soil at the radioactive spill sites, the aquifer, perched water, the Deschutes River, Dry Canyon Spring and area-dinking wells are checked for radioactivity by the Department of Energy and that all results are documented and comply with EPA "Acceptable Human Environment Standards." 15. Require owners to provide documentation as to how all of the Toxic Waste was transported into the site property and what specific roads were used to transport Hazardous Waste into the site. Show how all transport roads were cleaned.to Acceptable Human Environment Standards and how all Hazardous Waste were transported into this site. 5 Require that the owners provide delivery manifests and how and where all of the waste was unloaded. Require that owners show that none of the 80 leaking barrels (with caustic sand and radioactive waste) leaked on the mine property soil while being transported to the site on any of the mine roads. Require that the owners show that the soil under the 2 Full Barrels, labeled "Boeing Solvents" found on the ground 1,000 feet to the South of the other 796 barrels by Geologist Jack Sceva prior to "dean up" did not contaminate the soil with radioactive waste and show how this specific soil got cleaned to Acceptable Human Environment Standards. 16. Require that the owners/ developers post warning signs around the perimeter of this entire site that states the following: "Danger - Inhalation of uncontrolled airborne Diatomaceous Earth with Cristobalite may cause difficulty in breathing and is dangerous to inhale." 17. Require that warning signs be posted around the perimeter of the property for any toxic dangers that may exist at this site until the site is deemed safe for "Acceptable Human Environment Standards." The property is poorly posted, fenced and gated. 16. Require that an "Enforcement Order" be issued to the owners/ developers to comply with making this property safe to "Acceptable Human Environment Standards" and not "Industrial Environment Standards." 17. Require that a "Performance Bond" be put in place to assure completion of the necessary actions for reclamation, testing and final dean up of this entire site to "Acceptable Human Environmental Standards" and not "Industrial Environment Standards." 18. Require the owners/ developers to collect data and provide a "Burden of Proof" that this entire site is safe for "acceptable Human Environmental Standards" and not "Industrial Environment Standards." 19. To protect Human Health, require that this property perimeter to this entire site be secured with sturdy fencing, boulders and strong metal signs that last. This site has never been secured and trespassing is common and persistent at this site. The mine has been the No.1 location for most of the crimes in the Lower Bridge Basin, by far. Require that the owners/ developer Secure the Entire Site against Trespassing, a documented long-term problem at the site. This should also be done to protect public health and safety since the site is rife with documented hazards and has never been inspected or cleaned up to acceptable Human Environment Standards. There is a long history of crime at the mine site: Trespassing, bon fires, poaching, dangerous firearm discharges in close proximity to Lower Bridge Road, drug use, illegal alcohol consumption (minors), litter, dumping, an aerial drug drop from a low flying 6 aircraft, and a fire that was started by gun fire in a Pacific Power substation next to the collapsing mine buildings. There are no warnings posted around this site to indicate that it is a public nuisance and health hazard. Rock boulders once placed at entrances have been moved aside to allow for trespassing by cars and ATVs. ATVs create a lot of pollution. 20. Require that the owners/ developer document that any water use at this site will not affect irrigation on nearby farms, area drinking wells, the aquifer and Deschutes River. Currently, irrigation withdrawals during the growing season have lowered the river depth at Lower Bridge and water temperatures have been taken by state water experts. Temps have being documented at 74 degrees - unhealthy for the survival of native fish. 21. Require that a hydrogeologist from Oregon Water Resources Department check and document the ground water supply to surface water and check connection to hydraulic interference. There are big springs along Deep Canyon and all development up gradient is affected. Require that this hydrologist do a Point Source Pollution Study. Require that all 7 wells on the property be located, tested and documented for contamination as well as neighboring resident drinking wells. Require that a meter on the well to monitor Limited License use of water. Require that water use is documented and mitigated at this site. 22. Require that owners/ developer remove all remaining underground lines (iron, pvc and any other material) that were used to pump Toxic Waste. PCBs, VOCs, Fuel and all other dangerous waste harmful to the environment with DEQ/EPA supervision. Require that all of the removal and proper disposal be documented. The buried lines that feed into the lagoons were designed to pump liquid and industrial waste. Toxic Sludge was found in the lagoons in 1983. There are no documents that state that these lines were not used to pump the Toxic Sludge found in Lagoon 4. Require that Deep Core Soil Samples be done to determine if the Daniels Group released PCBs and VOCs when the toxic waste pump house was recently knocked over and the 10 underground lines were ruptured. The lines that were used to pump thousands of gallons of toxic waste may have ruptured. The internal walls of these lines may have Toxic Sludge that has never been inspected. These lines have remained buried at this site for 32 years. Two 200,000-gallon fuel tanks were used to fire two furnaces at the site for 3 decades. On top of the hill, North of the mine buildings a lot of black fuel crud remains on the ground (atop creosote beams in the ground) and the buried pipeline (used to pump fuel to the buildings) contains black crud and is visible above grade. Require that soil samples be taken for contaminants that may exists from all of these abandoned lines to assure that no leakage of dangerous materials exists from these lines that may have corroded or from faulty seals. Require that documentation be provided that these areas are safe. 7 23. Require that the owners provide documentation for the actual content of each of the 796 barrels delivered to this site. No evidence was found in the DEQ/ EPA files states the content of each barrel was tested and documented to determine what was actually in each barrel. Require that the specific content be provided to County Health Officials, Water Resources Department, and leadership of EPA-Region 10 and Oregon DEQ-and to the citizens of the Lower Bridge Basin. Jack Sceva, geologist who was asked to inspect the site in 1983 before the clean up took place stated the following in his 1983 report: "Many of the drums have labels, but whether they indicate what is now in the drums or what was originally in the drums is not known." Require that if the content of each drum was never obtained, that the entire site be inspected for unknown toxic waste that may have been stored or dumped at this site and that all activities by the Daniels Group be halted until this matter is investigated thoroughly and the site is deemed safe to conduct development activities (grading, burning, etc.) and then made safe for "Human Environment Standards." 24. Require that the mine owners disclose all delivery manifests, receipts and any other information of anyone involved with this site since 1976 to EPA Region 10, EPA Oregon Operations Office, DEQ Oregon Department of Health Services and to Deschutes County Health Department. It is our understanding that the EPA and DEQ have never asked any former owners or operators in writing for these records and that all that was ever provided by the owners, past and present, to the EPA and DEQ was provided voluntarily. Require that all former companies (i.e. Grefco), operators and current owners provide all records of their activities at the site, the manifests of what was delivered, where it was unloaded at the site. Require that DOGAMI provide all historical documents, drawings, and photographs from every company, owner and operator that was ever involved at this site to EPA Oregon Operations Office DEQ-Oregon. 25. Require that the owners/ developer locate all former fuel tank locations at this entire site and provide documentation that the areas (ground) around the fuel tanks and all underground lines are not corroded or contaminated and are proved safe and comply with "acceptable human environment standards." Since the operators have recently graded over Solid Waste, 2 Former Power Substations than ran on PCBs core samples and ground penetrating radar devices must be used to locate buried toxic waste. Burying Solid Waste is illegal. Historic photographs from the University of Oregon clearly show that at least 2 large oil or diesel tanks were located West and North of the plant buildings. Require that the DEQ and EPA supervise and document these clean up activities. One of the tanks is documented as being 200,000 gallons. 26. Require owners/ developer prove that Formaldehyde and Asbestos that was reported at this site in the Phase 1 Report and that this entire site has been cleaned of these dangerous materials to Acceptable Human Environment Standards. 8 27. Require the owners / developers to prove that no buildings, residences or uncontrolled septic waste existed on the Eastern Portion (where homes were located) and Western Portion of the mine property (where a toilet near toxic lagoons was located). Historical aerial photos and documents clearly indicate several septic locations. Require the owners to show how these areas got cleaned and are not contaminating subsurface water and that these areas comply with Acceptable Human Environment Standards. 28. Require that the owners/ developer document that any water use at this site will not affect irrigation on nearby farms, area drinking wells, the aquifer and Deschutes River. Currently, irrigation withdrawals during the growing season have lowered the river depth at Lower Bridge and water temperatures have been taken by state water experts and documented at 80 degrees F - unhealthy for the survival of native fish. Require that the owners/ developer show that how the withdrawal of water at this mine site will not have a negative impact on threatened Bull Trout and other trout species in the short term and in the long term. 29. Require that a hydrologist from Oregon Water Resources Department check and document the ground water supply to surface water and check connection to hydraulic interference. There are big springs along Deep Canyon and all development up gradient is affected. Require that the owners show there is no hydraulic interference. 30. Require that this hydrologist do a Point Source Pollution Studv. 31. Require owners/ developer to show how all-7 wells on the mine site go cleaned to Acceptable Human Environment Standards and pose not threat to the environment. 32. Require owners to install an accurate water meter that a meter on the well to monitor Limited License use of water and show how water use at this site is legal and measured for as long as water is used at this site. Require that water use is documented and mitigated at this site. 9 Y! . December 3, 2008 ZC-08-1, PA-08-1 Application to Rezone Toxic Waste Site West of Terrebonne, Oregon on Lower Bridge Road Presentation to Deschutes County Board of Commissioners-December 3, 2008 Presenter: David Jenkins, Deschutes County Resident from Eagle Rock Estates -EFU 20, Directly across the Deschutes River, East of proposed Rezone INTRODUCTION : My name is David Jenkins. I have been a resident of Lower Bridge Basin for 17' years in Eagle Rock Estates - an EFU-20 Subdivision directly across the Deschutes River -East of the Lower Bridge Mine Site. The Purpose of my speaking here today is to focus on Present Day, Imminent Health Threats to Humans and the Environment at this Entire Mine Site. And, to ask you to consider that a rezone at this site, with known health hazards, may create or $(g1ni~lCpv+~f~ IABILITY for Deschutes County. To be clear, these imminent health hazards apply to residents in the Lower Bridge Basin, AT LARGE, and, NOT just to people who may live at this site some day. New information from the Department of Health Services EPA and Historical Documents gives rise to uncontrolled, imminent health threats _ DHS stated at a recent Public Health Meeting that a 2006 DEQ Air Test did not test for respirable pollution (the purpose of an air test) and that this needs to be done appropriately to determine respirable pollution health risks. The DF&iealth Consultation report did not address radiological waste contact with soil and water t6l Human Environment Standards - instead they addressed current use: a "Surface Mine." The applicant is applying for residential use, NOT industrial surface mine use. Oregon Congressman Gene Whisnant wrote a letter of concern about this DHS "Consultation" and stated that he is concerned about the validity of this report and the lack of relevant testing. Director of the EPA Oregon Operation Office confirmed that EPA Oregon failed to heed the 1983 directive issued from Phil Wong, EPA Superfund Manager to monitor the ground water at this site. Mr. Wong stated that this should be done if the state ever plans to release this property. In Fall of 2007, Residents of the Lower Bridge Basin learned that a Toxic Waste Incident, DEQ Mistakes and 50 years of site history that the owners and rezone applicant did not disclose. Residents immediately went to Deschutes County to obtain all documents on the Toxic Waste Incident. The county did not have 1 single document on the Toxic Waste Incident. Residents obtained over 1,000 documents about the 8 -year Toxic Waste Incident that began in 1976. Documents were obtained from EPA and DEQ. The following people are in agreement with all of the health concerns and requests raised in this DEO letter and attached in this entire document We request that immediate action be taken to inspect this "entire site"above and below grade and to make this site safe for "Acceptable Human Environment Standards" and not "Industrial Environment Standards." This site impacts future residents of this site and residents of Lower Bridge Basin at large, who do not live at the site. Contact Resident, Eagle Rock Estates: David Jenkins, P.O. Box 85 Terrebonne, OR 97760. `c -Pd &X S? S ~U✓C ~7 n Oe--- 4'71 & _P"" 029x7766 9W c~ 77G0 V»lto Poaox 23ts -to-%to oao bl0411t 'cyiatboJ0C 4z & (00 (tJ~C. -~•a P~o~ 2.3t5 10tio"~ -f i "Ce_v-r 60KVW_ DfZa-11, 6D D ST / r c w sis .w P~ ~4..VNI J~ U4 Page 9 of 25 re ~i 2710 A4-, ivtk Or 9 -7 7 C < 06L T7760 Y J j ( - r , (1 / l r UL`s ~~~U L-Yz- i Cat:' c KnC vS~HL 2~F~ d l `a2`Z BonK[s ~OWC.y~~ i dc.,tiaQ , o ~2, q-~--~, a l r 4" We request that immediate action be taken to inspect this "entire site" above and below grade and to make this site safe for "Acceptable Human Environment Standards" and not "Industrial Environment Standards." This site impacts future residents of this site and residents of Lower Bridge Basin at large, who do not live at the site. Contact Resident, Eagle Rock Estates: David Jenkins, P.O. Box 85 Terrebonne, OR 97760. ,bq,l v1Z5 Dkq~,.-- c~1V~ 11t, , M, r i a s S N vo $ 1 l'~~ L CV y t26ii 776 l~3 u~ T~~~.`~~~~~Za~ ~ r owe ~i~~`►~s~ lee( Page 9B of 26 r. Exhibit A 1983 DEQ Photographs of Toxic and Radioactive Waste in 55 Gallon Barrels and Toxic Sludge dumped in Lagoon 4 Re: Application to Rezone - ZC-08 -1, PA - 08 -1 Present Day Health Hazards at the Mine Site west of Terrebonne, Oregon on Lower Bridge Road From Residents of the Lower Bridge Basin Presented to Deschutes County Board of Commissioners -December 3, 2008 I l S ~ !AT&;ved; s Ac -.a rr% w t, r. y Yr ~ % r.... T d - 1T sue! ' 4 ~ G+ Gi w A - ~ ~ _ , ~ k t y~ r ~ t ,:'i ~ ~r f I rl ~ j? . yyy...~ ~s ~ ~ +T ~ 1" ' y~` t J'4. F j ~ ~ ~ tl ` ~ 1k ~g' r~ ~ , i ~ ~ t~~~~..i ~ ,l pP~~~~f ~ • t i ~h,, I '4 ~ ~ I 1 k f i , , . , b t~k ~ ~ ~ ~ ~a. ~ S. ~ .,i~- ~ ~ ;.t C ~ fF cc'~ C3%~ V a ro~ ~N ~~~:`~~^~`l/~dl~ Document Reproduces Poo4y Archived) Exhibit B 2008 DOGAMI Letter to Department of Health Services about Processed and Dumped Copper Waste that has never been reported to Health Officials, Looked for or Located at the Site - From Ben Mudie Re: Application to Rezone - ZC-08 -1, PA - 08 -1 Present Day Health Hazards at the Mine Site west of Terrebonne, Oregon on Lower Bridge Road From Residents of the Lower Bridge Basin Presented to Deschutes County Board of Commissioners - December 3, 2008 -~w From. "Ben A. Mundie" <Ben.A.Mundie@mlrr.oregongeology.com> Subject: Date: September 2, 2008 4:27:42 PM PDT To: davidjenkinsl2@earthlink.net Cc: Karen. Bishop@state.or.us Good afternoon Mr. Jenkins - Frank Schnitzer asked me to repsond to your e-mail of August 26, 2008, regarding a 1980 MEMO to the DOGAMI file from Paul Lawson. At your request Karen Bishop of DHS is copied on this repsonse. The Lawson MEMO dated 09-09-80 contains these sentences: "According to Mr. Sellard there is one area that at one time was utilized for the disposal of copper wastes. The idea was that upon filling the area and the evaporation of the liquids, the material would then be processed for the copper. I do not know where this site is located and I did not see it. The site should be periodically checked for further activity." Mr. Lawson never verified this statement regarding copper wastes. There is no evidence in the DOGAMI file that a copy of this MEMO was provided to any other federal, state, or local agency. DOGAMI continued to monitor this site until 2006. Thank you for your help and cooperation on this project. Please contact me with any questions. Ben Mundie DOGAMI 541-967-2149 Exhibit C 1. 1983 EPA Region 10 Directive to EPA, Oregon Operations Office to Monitor the Ground Water at this Site if the state ever plans to release the property 2.2008 EPA, confirmation that the Ground Water was not monitored from Anthony Barber, EPA Oregon Operations Office Acting Director Re: Application to Rezone - ZC-08 -1, PA - 08 -1 Present Day Health Hazards at the Mine Site west of Terrebonne, Oregon on Lower Bridge Road From Residents of the Lower Bridge Basin Presented to Deschutes County Board of Commissioners - December 3, 200 DATE: SUBJECT: FROM: TO: l UNITED STATES ENVIRONMENTAL PROTECTION AC°NCY Deschutes Valley Disposal Site Phil Wong Superfund S' a M n ement Al Goodman Oregon Operations Office Following are my comments on the cleanup plan for Deschutes Valley as proposed by PCC. 1.) There are several areas of judgement that-wil1 be applied where there is no criteria or provision for. consultation with state of EPA.. These areas include the 'area of concern' in phase I step 07 and the extent of soil removal in Phase II. These points should be clarified. 2. )There is no provision for- the sampling and monitoring of the groundwater. This should be required if DEQ expects to give a release for the property. I would suggest that the release be conditional. so DEQ could come back later if the. problem has not been solved. 3.) I assume that all the companies named in the platy are authorized to haul, treat or dispose of hazardous wastes. 4.) What level or oversight will be maintained by State? Call if.you have any questions. Thanks for the. chance to comment, I'm sorry that this is late. rib OCT 31 1983 Oregon EP Operations '4-REOiflN ice EPA Form 1320.6.(Rev. 3-76) On Nov 12, 2008, at 2:24 PM, Barber.Anthonv(a)-epamail.epa.gov wrote: David, My inquiries with EPA staff and records indicates so far that it does not appear to me that any sampling of ground water took place at this site by EPA. Best regard, Anthony Anthony L. Barber US EPAActing Director Oregon Operations Office 503-326-3250 Exhibit D 1. 1983 DEQ Portland Office - "News Release: Cleanup Starts on Hazardous Waste Materials," - 2 pages, from Janet Gillaspie 2. 1983 DEQ Portland Office "Deschutes Valley Sanitation Questions and Answers Draft - For Internal Use Only - Not for Public Distribution"- 3 Pages, from Janet Gillaspie Re: Application to Rezone - ZC-08 -1, PA - 08 -1 Present Day Health Hazards at the Mine Site west of Terrebonne, Oregon on Lower Bridge Road From Residents of the Lower Bridge Basin Presented to Deschutes County Board of Commissioners - December 3, 20 f' DEPARTMENT OF ENVIROW ENTAL QUALITY P. 0. Box 1760 Portland, Oregon 97207 OREGON HEALTH DIVISION 1400 S. W. Fifth Avenue Portland, Oregon 97201 NEWS RELEASE - FOR IrAMIATE RELEASE . Janet A. Gillaspie Portland 229-6271 Bend: 388-6146 Toll-free 1-800-452-4011 Art W. Reil Portland: 229-6261 CLEANUP STARTS ON HAZARDOUS WASTE BARRELS (Portland, OR, November 28, 1983) Voluntary cleanup started today on 45,300 gallons of chemically hazardous and low-level.naturally occurring radioactive wastes near Terrebonne, Oregon in Deschutes County. The-wastes were hauled to the site in 1975 and 1976 when the site was permitted by the DEQ as an industrial waste treatment and disposal site. The permit was issued to Deschutes Valley Sanitation, Inc. Precision Castparts, a Portland investment casting firm; generated 723 barrels (39,700 gallons) of waste, including caustic sand, corrosive liquids, solvents, and the radioactive wastes. One 5,600 gallon shipment of ink sludge containing lead from Spe-De-Way, a Portland solvent recycling and recovery firm, was disposed of in an on-site lagoon. Precision Castparts, along with previous and present landowners, are underwriting the full costs of the cleanup. D.EQ records show that only Precision Castparts and Spe-De-Way hauled wastes to the site during its four months of operation. (more): M V~ is ;I f i; li! I, is i; I (G1) In February of 1976, DEQ prohibited Deschutes Valley Sanitation from accepting additional wastes, and prohibited companies from shipping to the site, because additional information about the type of geology under several lagoons was needed. When no information was submitted, the landfill permit eventually expired. No follow-up visit was conducted-to ensure the wastes were moved and disposed of properly. The cleanup will be supervised by officials from.DEQ, Health Division. and the Public Utility Commissioner's office. Precision Castparts has hired Chem-Security Systems to assist in the cleanup. Chem-Security operates the State's only hazardous waste landfill near Arlington, Oregon. Each barrel will be numbered for record keeping, and then surveyed for i contents. All radioactive wastes above state standards will be disposed of at the licensed radioactive disposal site at Hanford, Washington. is Chemically hazardous materials will be taken to the licensed hazardous waste landfill near Arlington for proper disposal. ti Cleanup is expected to take about two weeks. i' _ FJ155 EDITOR'S NOTE: _ - Access to the site will be..restricted. Please carry press I.D. cards. The barrels will be opened as cleanup progresses. To protect the workers, any helicopter coverage-must.be far enough away that no ground level wind is created. These 'are hazardous chemicals that the workers will be handling. W, 7i, DESCHUTES VALLEY. SANITATION QUESTIONS AND ANSWERS DRAFT FOR INTERNAL USE ONLY NOT FOR PUBLIC DISTRIBUTION When did Deschutes Valley Sanitation receive a permit from the DEQ? August 18, 1975. What were the conditions of the. permit? (G21) Acceptable wastes were limited to liquid and solid industrial wastes. No "Environmentally Hazardous" wastes were to be accepted. At the time, "environmentally hazardous" was defined as radioactive materials and pesticides. When did.DEQ prohibit acceptance of additional wastes and revoke prior approvals, and why? DEQ prohibited additional wastes in a letter dated February 19, 1976. The permit was suspended because there was some dispute about the geology under the lagoons. The Department asked for additional information, which was never submitted. The permit eventually expired. How much material was put into the lagoons where the geology was leaky? Only one lagoon was used, and DEQ records show it received 5,600 gallons of ink sludges containing lead. The lead concentrations are 70,000 ppm. The hazardous waste standard is 500 ppm. c i FJ156 _l` Who disposed of material at the landfill and how much? Precision Castparts (Portland foundry) 723 barrels Caustic sands Corrosive liquids Alcohol, some or all are radioactive Spe-De-Way Portland solvent recovery and recycling firm 1 S~ 5,600 gallons of pa±r cont fining lead ~ . R x < e Did DEQ know about the barrels when they were placed there? Yes, each type of waste and each company had prior approval to use the site. r h : Oy did DEQ let t 41arrels sit out there for 8 years? Due to staff! mover at the time the site was closed, a final inspection, follow-through to ensure the barrels were properly disposed of was never accomplished, an oversight\on the part of the Department. M1, r did this problem come back into the light? Someone interested in purchasing the land saw the lagoons-on an aerial photograph, contacted the Department. The barrels were discovered by Department staff ih following up. Men was that? August, 1983. . (G21) FJ156 -2- wny dLC WC Vli1Y 14c_ _'Z, The Department's first job was to investigate the site, and ensure it was secure from public access. Then we researched the property owners, and started piecing back together what was necessary to determine what types of waste there-was no present.public health hazard, the trying to convince the responsible parties. to actions at exclusively their own expense. Are the barrels intact? had happened. Sampling was present. Since Department spent time indertake cleanup There are a few pinhole leaks and some bulging tops, but most all the barrels look to be intact. Some barrels on the inside of. the pile might have leaked.. Although the barrels are still intact, they would have continued to disintegrate over time. do I get there? From Redmond North on highway 97, through Terrebonne. Turn west (left) just north of Terrebonne, on Lower Bridge Road. Go until you cross the river. Site is 1/2 mile past on your right (north) after crossing the Deschutes River. Park off road at gate. Gate will be attended by a security officer lined by Precision Castparts. (G21) From Madras, turn at the Crooked River Ranch sign before you get to Terrebonne. 56 -3- R Has-any of the material gotten to the,beschutes River. The material which would have been most likely to migrate off the site would be the liquids in the one used sludge pond. These would have evaporated before they could migrate. Monitoring will be, conducted both below the lagoon and below the barrels to ensure all hazardous materials are removed. What if some of the material has leaked out of the barrels? The soil will have to be tested as.part of the cleanup effort. If it contains hazardous or radioactive concentrations above allowable limits, it will have to be excavated and properly disposed of. -Ate civil penalties going.to be levied against either Deschutes Sanitation tw PCC? Kam.... . Vii' No, because they agreed to voluntary cleanup. n _ (G21) 156 -4- Exhibit E 1. 2008 Inquiry from David Jenkins to PacifiCorp regarding Substations that ran on PCBs at the Lower Bridge Mine Site 2.2008 PCB Report that Confirmation of PCBs found at Site and the Need for Further Investigation. From PBS Engineering + Environmental - 3 Pages, From N. Toby Scott Re: Application to Rezone - ZC-08 -1, PA - 08 -1 Present Day Health Hazards at the Mine Site west of Terrebonne, Oregon on Lower Bridge Road From Residents of the Lower Bridge Basin Presented to Deschutes County Board of Commissioners - December 3, 200 From: David Jenkins adavidjenkinsl2@earthlink.net> Subject: Pacific Power -Public Health Concern and Request for Response Date: February 18, 2008 9:W09 AM PST To: customerservice@pacificpower.net To: Pacific Power Director of Customer Service Pacific Power President, R. Patrick Reiten The purpose of this inquiry is to obtain information about the safety of an abandoned substation on Lower Bridge Road, 6 miles West of Terrebonne, Oregon. I would appreciate a response to this health concern. Clark Satry, of Pacific Power wrote to me a few years ago and informed me that the substation was being relocated because of repeated vandalism (gunfire) emanating from the abandoned mine buildings next door. This vandalism caused many power outages in out neighborhood and eventually started a fire inside the substation. Here are my questions that are related to Public Health today about this substation: 1. What year was the substation built and made operational? 2. How many years did it operate? 3. What Dielectric Fluids were used in the capacitors and transformers? Were PCB's used at any time at this facility or were they ever present at this substation? 4. Who cleaned up the Substation Site when the transformers and structure was removed from the site? What tests were conducted to assess the presence of PCB's? 5. Will you please respond to these questions to me by e-mail? Will you please provide: a. Contact Name at Pacific Power b. Contact's Direct Phone Number c. Contact's e-mail address? Thank you, David Jenkins Pacific Power Customer - Lower Bridge Community since 1994 P. O. Box 85 Terrebonne, Oregon 97760 541.923.3300 BASIC PCB - HEALTH INFORMATION: Polychlorinated biphenyls are a mixture of compounds having from one to 10 chlorine atoms attached to a biphenyl ring structure. There are 209 possible structures theoretically; the manufacturing process results in approximately 120 different structures. PCBs resist biological and heat degradation and were once used in numerous applications including dielectric fluids in capacitors and transformerrs The United States manufactured PCBs from 1929 until 1977, when they were banned due to adverse environmental effects and ubiquitous occurrence. They bioaccumulate in organisms and can cause skin disorders, liver dysfunction, reproductive disorders, and tumor formation. They are one of the most abundant organochlorine contaminants found throughout the world. From: David Jenkins <davidjenkins12@earthlink.net> Subject: 2 Abandoned Substations-Mine West of Terrebonne, Oregon Date: April 18, 2008 9:36:14 AM PDT To: kevin.putnam@pacificorp.com Cc: Stan Yeend <stan.yeend@pacificorp.com> Dear Kevin, I would appreciate an update regarding the 2 abandoned power substations at the mine site 6 miles West of Terrebonne Oregon These substations predate 1977, and I have inquired to PacifiCorp about the Dielectric Fluids fluids that were used in these facilities that may have been PCBs and whether they have been examined and documented as being cleaned. According to historical documents, power was first extended to the min property by Pacific Power in 1940. One of the substations was removed in 2000. 1 have sett 3 e-mails to the following at PacifiCom about this matter: February 18: Director of Customer Service and R. Patrick Reiten, President of PacifiCorp: customerservicena-pacificDower.net February 26: Stan Yeend: stan.yeend(ZDDacificorD.com March 14: Kevin Putnam: kevin.Dutnam(ftacificormcom 1 have also called Customer Service twice: The last time I called, a man name Mitch at the Portland, Oregon Customer Service Center was contacted and given specifics about these substations and concern about PCBs. Today, a developer wants to build 74 homes at the mine site. A worker has driven a truck over one of these substation sites. Nobody has blocked off these 2 locations and workers and trespassers are walking through this site. Will you please let me know of an update here. When we last spoke, you said you would do this. This community is concerned about PCBs at this site being spread by vehicular and foot traffic and and by airborne pollution as well. Best, David Engineering + P B C Environmental April 17, 2008 PacifiCorp Attn: Mr. Stan Yeend 825 NE Multnomah, Suite 1200 Portland, Oregon 97232 Re: Shallow Soil Sampling - Oremite Substations NW Lower Bridge Road, Terrebonne, Oregon PBS Project No.: 80393.000 Dear Mr. Yeend: The following letter report and associated attachments provide information pertaining to the shallow soil sampling activities conducted at the former Oremite Substations located at the Oremite Mine site adjacent to NW Lower Bridge Road in Terrebonne, Oregon (Figure 1). The shallow soil sampling was intended to determine whether possible historical leakage of insulation oil containing polychlorinated biphenyls (PCBs) from on-site electrical transformers has impacted areas of the subject property in the vicinity of the "Newt" and "Old" Substations and the Old Transformer Platform on the site. Site Reconnaissance PBS Engineering + Environmental (PBS) mobilized to the subject property on April 1, 2008. Glen Chase of PacifiCorp met PBS on site with a General Location Plan, dated June 1940. Using the General Location Plan, Mr. Chase and PBS were able to identify the former locations of the "New" and "Old" Substations. Mr. Chase was only familiar with the "New" Substation, which was located on a ridge north of the remnant mill/warehouse structure; the "Old" Substation was located near the southwest corner of the mill/warehouse structure. The Old Transformer Platform site was apparently located west-northwest of the western most concrete slab. At the time of the site visit, the location of the Old Transformer Platform site had been covered by several feet of fill material and it was not possible to locate the platform sufficiently in order to collect samples at the appropriate depth. The location of the two former substations and platform is shown on Figure 2. Soil Sampling A total of ten discrete soil grab samples (OSS-01 thru OSS-10) were collected from the "New" and "Old" Substation locations (sample locations are depicted on Figure 2). Sample locations were selected to be representative of the area of each former substation. The "New" Substation had no concrete or asphalt base present, however, the corner posts of the chain-link fencing was present to verify the correct location. The location of the "Old" Substation was covered with 2-3 inches of disturbed soil from site activities. Underlying the soil was asphalt and/or concrete surfaces. PBS probed the subsurface to find the edges of the asphalt/concrete and correlated them with the substation's location. Soil samples were then collected just beyond the asphalt/concrete edge using a shovel to remove the disturbed soil and a hand trowel to collect in-place soil from 6 to 12-inches below the estimated original ground surface. Soil from each sample location was collected in four- ounce laboratory-supplied glass jars with Teflon-lined lids. Between each sample point, the sampling equipment was thoroughly decontaminated. The sample containers were labeled and immediately placed in a cooler with ice for transport under chain-of-custody documentation. Samples were submitted to Apex Labs in Tigard, Oregon, and analyzed for PCBs by Method 8082. Bend I Boise I Coquille I Eugene I Portland I Seattle I Tri-Cities I Vancouver 390 NE Emerson Avenue, Suite C, Bend, OR 97701 541.388.9290 Main 541.382.5116 Fax www.pbsenv.com Shallow Soil Sampling - Oremite Substation Terrebonne, Oregon PBS Project NO.: 80393.000 April 17, 2008 Page 2 of 2 Findings The five samples collected from the former "Nevi" Substation (OSS-01 thru OSS-5) contained no detectable PCBs. Two of the three samples collected from the former "Old" Substation contained detectable concentrations of PCBs. Samples OSS-07 and OSS-09 contained the PCB Aroclor 1254 at concentrations of 6,400 micrograms per kilogram (ug/kg) and 35,000 ug/kg, respectively. The remaining three samples from the "Old" Substation (OSS-06, OSS-08, and OSS-10) had no detectable PCBs. The analytical results are summarized in Table 1 and the complete laboratory report is attached. Oregon Department of Environmental Quality (DEQ) has a table of generic risk based cleanup concentrations (RBCs) for various compounds including PCBs. The soil RBC for PCBs assuming a residential scenario and a direct contact exposure pathway (ingestion, inhalation, dermal contact) is 220 ug/kg. The RBC assuming an occupational scenario with a similar exposure pathway is 980 ug/kg. The RBC for a construction worker scenario with a similar exposure pathway is 4,400 ug/kg. Both samples OSS-07 and OSS-09 exceed these three screening concentrations. These values, as well as the EPA Region 6 Human Health Medium Specific Screening Levels are presented in Table 1. Conclusion Based on the laboratory analyses, it appears that historical leakage of PCB-containing insulation oil from on-site electrical transformers has impacted the vicinity of the former "Old" Substation. PBS recommends that further site investigation be conducted to determine the full vertical and horizontal extent of the impacted soils. Site activities in the vicinity of the former "Old" Substation should to be curtailed in order to minimize disturbance and the associated spread of shallow soils impacted with PCBs. Sincerely, PBS Engineering + Environmental N. Toby Scott, RG Senior Project Manager/Hydrogeologist Attachments Figure 1 - Site Vicinity Map Figure 2 - Site Plan Table 1- Soil Analysis Summary Oremite Substations Laboratory Analytical Reports and Chain-of-Custody vI v ryI 4pi F g x ` 10. Ak ~ x ~1e t a i:I 51 - LOWER - t % (yf r Slrlp mine flyPROJECT LO CATION - 3~K~ / k syk5t ; /fd{ v 'STRIP ' M(N A+ 4 ` . j L .,6 4 • ft fl f ~y i/ IV r t .1 V 0':. ~o 21' 22 SOURCE: USGS CLINE FALLS, OR QUADRANGLE,1962 'FURTLAN"`SITE • SALEM ' TERREBONNE • EUGENE. BEND C 0' 1,000' 2,000' 4,000' ;I I I I SCALE: I"= 2,000' OREGON Prepared for: PACIFICORP PROJECT# 80393.000 SITE VICINITY MAP FIGURE DATE OREMITE SUBSTATION, NW LOWER BRIDGE ROAD 1 APR. 2008 TERREBONNE, OREGON i PBS Exhibit F 1954 "Diatomite Operations at Terrebonne, Oregon - Report Issued to American Institute of Mining and Metallurgical Engineers 1954 Pacific Northwest Metals and Minerals Conference, Portland, Oregon - from D.F. Dyrsmid - 2 Page Introduction and 14 Page Article Re: Application to Rezone - ZC-08 -1, PA - 08 -1 Present Day Health Hazards at the Mine Site west of Terrebonne, Oregon on Lower Bridge Road From Residents of the Lower Bridge Basin Presented to Deschutes County Board of Commissioners - December 3, 2008 r' . / a6d4 ~ /s63 ' (DE4) DIATOr,iITE OPERATIONS AT TERREBONNE, OREGON D. F. Dyrsmid (Member A. I.l I. E. ) Chief Engineer Dica.lite and Perlite Divisions Great Lakes Carbon Corporation Walteria) California Permission is hereby given to publish with appropriate acknowledgment) excerpts or summaries of This Preprint not to exceed one-third of the entire text of t.,hc paper. Permission to print in more extended form subsequent to publication by the Institute must be obtained from the Secretary, Ameri- can Institute of I1ining and Letallurgical Engineers. American Institute of Mlinin, and and I.ietallurgieal Engineers 1954 Pacific Northwest NlotaIs and Minerals Conference Industrial L:inerals Division LaY 1, 1954 Portland, Oregon (DE DIATOEITE OPERATIONS AT TERRMONNE) OUGON INDEX PAGE Location 1 History 1 Origin 2 Properties 4 Geological Foliation 4 Stratigraph 6 Mining g Products 11 Processing 11 Air View of Plant 12 Laboratory Control 13 Flow Diagram 14 Warehousing and Shipping 15 Usage 15 r DIATOEITE OPERATIONS AT - TERREBONITEOREGOPl. LOCATION: (DE4), The Terrebonne diatomite deposit and processing plant of the,, Great Lakes Carbon Corporation are located in Central Oregon at an elevation of 2550 ft. above sea level on the west bank of the Deschutes River. The nearest towns Terrebonne, is six miles north of the city of Redmond and seven miles east of the plant and is the rail shipping point for the finished products from the plant. HISTORY:. Our first known reference to diatomite in the Terrebonne area is by the U. S. Surveyor General's Office on the original tovm ship plat which states, "On the west side and adjacent the river in Sec. 16 is a hill com- posed of white marble. This substance is somewhat of the same nature and makes a very good substitute for white chalk." Certainly the formation wa- known even before that time since the old Willamette Valley and Cascade Mountain Iilitary Wagon Road, shoirm on the original plat, crossed the Deschutes River exactly where the present County Road and Bridge .which we now use is located. This old military road, sections of which are still visible, crossed through Sec. 16 right over the area which ~~,e have been mining for the past eighteen years. Some natural products were shipped from this.deposit even prior to 1921 when the Vlestern Diatomite Company operated the property. In 1930 the Atomite Corporation took over4 their mated capacity being approximately 25 tons per day, and the operation still being limited to the production of natural materials. A rotary kiln had been partially installed by the Atomite people but their operation was spasmodic and the installation of. this unit was never completed. r_ -1- In 1935 the deposit and plant facilities were acquired by The (DE4) i Company. That company had carried on laboratory scale processing of the'Terrebonne diatomite at their Walteria Plant and very shortly after taking over the property undertook a complete rebuilding of the existing facilities so they would more nearly correspond to the flowsheet of the Walteria operation. The first runs on natural products were in May, 1936, _ p the first flux calcined material was produced in the newly completed rotary kiln the folloving month and the operation was off to an immediate success. Except for a period required for the complete rebuilding of the plant necessitated by a disastrous fire in i.;ay, 1939, operation has been continuous.since 1935. In 1944 Great Lakes Carbon Corporation purchased The Dicalite Company which shortly thereafter was designated as the Dicalite Division. Great Lakes Carbon Corporation owns and operates diatomite properties at FHalteria, Calif.; Lompoc, Calif.; Basalt, Nev.; and Terrebonne, Ore. In addition, the company controls additional extensive reserves in the Lompoc area; near, .Bradley, Calif.; near Burney, Calif. along the Pit River; and.in the Otis creek Basin about 50 miles north- easterly from the. town of Burns, Oregon. ORIGIN: Diatomite, or diatomaceous earth, is a light-weight sedimentary rock varying in color from light brorm to grayish or white, it is the siliceous rerlains of microscopic aquatic plants called diatoms. In nature this low form of plant life occurs in almost all raters and under a wide range of conditions throughout the world. These minute plants are uni- cellular and during their grovrth and formation, secrete for themselves siliceous encasing frustules, the remains of nhich build up on the bottoms of inland bays or lakes later to be uplifted to form diatom deposits. Diatoms, by the process of photosynthesis, are able to convert chemicals contained in the water in which they live directly into food. Diatoms are very prolific and when temperature and other ecivironmental conditions are favorable, their numerical rate of increase can be astronomical as they propagate by division and therefore increase accord- ing to a geometric progression. Silica is the predominent factor in the make-up of the diatom frustules. For this reason waters in areas where I considerable volcanic activity has taken place are especially, favorable to their growth because of the relatively high dissolved silica content. Very often layers or streaks of fine volcanic ash, known as silver sand, are found in diatomite deposits. The presence of this fine sand is a major nuisance as it presents a difficult classification problem. Diatoms are found in fresh, brackish, or sea waters; the Terrebonne deposit being of the fresh water variety. Different degrees of salinity* produce different species of diatoms and an experienced person can often determine at a glance through a microscope i-rhether a diatomite sample came from a marine or a fresh water formation. Through a microscope diatoms present thousands of shapes and (DE4) counfigurations each with its ovn characteristic. markings. Their surfaces present complicated and beautiful patterns and markings in the form of holes, spines, ridges and dimples. The predominant diatoms from Terrebonne are banana shaped; boat-like; chain or ladder-like forma N std discs. ys -3- } } STIES: (DE4) } 0/, J* The value of diatomite, often referred to as D. E., lies chiefly r (1 fn its high porosity and its chemical inertness chemical purity being of less importance. Usable material at Terrebonne runs from 18 to 32 pounds per cubic foot, dry block weight. The lace-like structure of the diatoms gives the rock its high porosity. The high porosity) however, makes } } possible the exceedingly high and objectionable moisture contents which must be removed in processing. Bank moistures in this deposit run from } 40 to 65% depending on the exposure and depth in the formation. Chemical Analysis (dry basis) } Terrebonne Diatomite } 5102 81.1% } A120 } 3 5.1 } Fe20 3 2.8 } CaO 0,7 } HgO 0.7 } } TiO2 0.3 } Alkalis 2.3 } Loss on Ignition 7.0 } 100.0 ' } *After processing the Si02 content in the finished product is about 90%. GEOLOGICAL rORLIATION: The Terrebonne Diatomite Deposit has been identified as late Pliocene or early Pleistocene and is considered to be about one million years of age. There is abundant evidence at hand to Tarrant one in associating the age of the formation with that of one of the great out- pourings of lava that occurred in the Pacific Northwest as the deposit - 4- is wholly encased in volcanic products. The main part of the deposit (DE4) an extremely flat formation which extends overall about one mile east and'',, west and 3/4 mile in the north and south direction. It is overlaid with 20 to 30 feet of sand and gravel with a few stones up to 8 or 10" in diameter. This overburden weighs about 2900 lbs. per cubic yard: and has one layer about four feet thick that is quite firmly cemented. Another layer in the sand and gravel is about 3-1/2 feet thick and is very homo- genous, it contains pebbles up to 3". This otherwise i:gaste material has very satisfactorily furnished practically all the concrete aggregate used over the years for our construction requirements. The diatomite lies in undisturbed beds varying; from 2 to 8 feet thick and makes up a total maximum thickness of 38 feet. The rock is quite soft and breaks with a concoidal fracture. Characteristically, fresh water formations such as Terrebonne, are free of the laminations that are invariably found in marine earth. The diatomite beds have trace markings which help us in lifting the various strata at desired levels; several streaks of volcanic ash finely interspersed through the deposit help some in this respect but as pointed out before, constitute a separation problem in the milli.n;; and classification process. Strata in the deposit are arbitrarily numbered from top to bottom for ready ide4ification, these strata are lifted singly or in some cases together eo as to fit in with our processing requirements, being; used singly or as blends. The Typical Stratigraph shorn on Page 6 better outlines the structure of the Terrebonne Formation. A considerable amount of exploration work had been done before Great Lakes Carbon Corporation took"over the Terrebonne deposit, we made use of some of the hand dug test holes rhich remained. ee also, in our -5- L1n1V1•lIiV r'uhMATION Typical Stratigra h p (DE4 4ESCRIPTION FORMATION STRATA TO APPROX. SCALE THICKNESS GRO SURFACE Alluvial Soil r s 1 2' Soil and Gravel dt 41 Y V . Cemented Sand and . ...Y-, y • .o • 1 ' Gravel 4-1 0 ~ + . J , ,J f 3 M 1 Sand and Gravel • ' • - • ~ ' O • : ~ ~ 2' o CQ Id 'row ove- C/ Sand ' • ; • . 10'-121 ti . Sand, Pumice, and D. E. - • • 3, *No. 1 D. E. High Quality 4' *No. 2 D. E. Good Blending Quality *No. 3 D.E. and Silver Sand *No. 4 D. E. Good Blending Quality *NO- 5 D. E. High Quality *NO. 6 D. E. quite variable in thickness, not being worked at present. *NO. 7, Yellow Sand *NO. 8 D. E. Contaminated *Stratum N;,urber D.E. abbr. for diatomite 8'-10' - - - - - - co - cat 21 0 - - 51 P M 4'-12' 3",4R BOTTOM OF DEPOSIT 25-30 ft. Red Conglomerate below I ► (DE4) first exploration, put doyn a few additional test holes by hand diggt In cases !here the deposit outcropped such as along Buckhorn Canyon and Deep Canyon which cut through the deposit, the edges of the diatomite strata were adequately exposed by the use of a bulldozer running down the canyon slopes. Later on we mechanized our exploration system, making use of a truck mounted earth boring machine which puts do~:.m holes at a rapid rate and which has proved highly satisfactory in all respects. We standard9 on the use of 30" diameter holes as this permits rapid drilling and is sufficiently large to alloy the geologist to readily descend down into the hole for taking samples and complete underground information. The geologist descends into the hole on a. winch lowered bosun's chair and carries a sampling hammer, sample bags, tape line, Brunton, notebook, portable light and other necessary items. An independent safety rope is fastened securely at the surface and hangs to the bottom of the hole, it is tied to the working chair by the man in the hole to forestall any trouble in case of failure of the main winch line. A hard hat is, of course, standard equipment. At first we lowered the bosun's chair by means of a small hand winch carried by a steel pipe tripod set up above the hole, but later on we mounted the winch, with a short boom, on a Willys 4-wheel drive pick-up truck. The final improvement was to power the winch by means of a couple 6 volt storage batteries carried along in the truck. The earth boring machine is used at any deposit which we actively con- sider, also ,Yhere we are now -per ating. It is a rather ingenious but simplified piece of equipment; it has a collapsible self-raising mast 34' high and is equipped with 20 foot drill stems. The first two stems are telescopic and permit drilling down to 401 depth without the necessity -7- (DE4) tacking stems. For holes deeper than 401 it is necessary to separate e succeeding 201 stems and set them on the ground alongside of the rig or lower them into a small "prat tail hole" which is drilled alongside of the rig. In good drilling where no hard material or large rocks are encountered a 401 hole can be put down in approximately tv~o hours exclud- ing the time of set up which is variable depending on the nature of the terrain. The deepest hole that we have drilled with our machine to date is about 901 but on account of the additional work of changing stems in and out each time a bucket load of material is dumped, the production rate diminishes very rapidly. A 901 deep hole, even under good condi- tions, requires about sixteen hours to drill. LINING: When The Dicalite Company took over this operation in 1935 . mining had been carried on strictly as a hand operation. There was a considerable area. of diatomite which had been uncovered by mechanical stripping methods but the breaking out of the rock was accomplished strictly by the use of picks and toothed bars similar to ice breakers. The rock was taken out in lumps as large as possible as it was the practice at that time to do a considerable amount of field piling for the purpose of natural drying, This vas accomplished by hand piling the lump crude in rows on a flat expanse exposed to the wind and sun. Some of these piles were made under drying sheds. in order to circumvent moisture build-ups in case of undesirable weather conditions. The dried rock, after six months or more in the field piles, >>;as transported to the plant by the former operators in take-apart bottom wagons dram by teams. The lumps were unloaded by hand, being throvm directly into a double spike roll crusher, the fine material being unloaded by separating the vagon bottom boards. -8- (DE4) In making our first inspection and survey of the mill and m'AL operation in 1935, we noted a 2-1/2 yard Bucyrus railroad type steam sho setting on a short section of standard gauge railroad track. There also. were two 3611 gauge saddle tank steam locomotives as eaell as 25 or 30 four- yard side dump cars. The remnants of this old set-up intrigued us, s especially the shovel. Vile understand that this ponderous shovel once upon w a time was used at. the Panama Canal. It had been brought over the seven Milos of rough terrain between the rail siding at Terrebonne and the nine over less than 100 foot of track. The rails were in eleven foot sections so by repeated eleven foot move-ups bringing around from rear to front the short sections of rail, the whole move, including crossing the Deschutes River, was finally accomplished. For our first year of operation mining vas still by hand, then. ® by a small gasoline shovel under contract. In 1937 we put into operation a 1-1/2 yard Lira shovel which because of the severe winter conditions we had electrified, serving the shovel by 3 phase lf1;0 volt y pole line and 1000 feet of three conductor cable. Vie found that a good ground conductor and connection was an absolute must, as under certain conditions, due to the characteristics of the diatomite formation a heavy shock was experi- enced when a person simply walked around near the shovel rahen the power was on. Our triple ground wire cable, with completing ground conductor. carried back on the pole line to the power source about 1000 feet away corrected this unusual condition. Originally we used 5-yard Ford Dump Trucks built up ii%,ith.side boards to 7-1/2 yards when the lightweight diatomite was being carried. These units proved unsatisfactory as the overloading by overzealous operators when hauling the heavy overburden caused excessive maintenance. -9- s v (DE4) In 1938 vne supplanted the Fords with three 12-yards two axle, 25 ton gross, GI.0 trucks which were equipped'with 11:00 x 24 dual tires on the rear, same size single on front. The large tires give us excellent flotation especially on the soft dumps and under wet freezing and thav.ring conditions i-4hen the surface of the deposit becomes almost like grease. These sturdy units immediately proved their worth, a fourth unit was purchased later, and this fleet has been in continuous service to date with a high degree of operational and economic satisfaction. On several occasions when we were unable to keep up with advance stripping we contracted D-8 Caterpillar drawn scrapers. Of late we have contracted Euclid Scrapers which have proved out exceedingly well for this accelerated stripping. We have found double pusher cats to be more than justified because of the additional yardage lifted especially in the sandy or loose type overburden or in lifting crude when high moisture conditions prevail. The double pushers increase tonnage moved per scraper unit by as much as 35;06 Our plant superintendent several years ago became interested in a Euclid Belt Loader; after considerable study and observing the perfor-m- ante of these machines elsewhere we purchased one of these units. It is a spectacular machine to watch, as under favorable conditions, it will load out a 12-yard truck, with either the light diatomite or the heavy gravel overburden, in 12 to 14 seconds. We have been very well pleased with this unit but have found, with a sometimes limited length of quarry face, that it is just about a stand off as compared to the rubber mounted wheel tractors such as a Caterpillar.DW-20 or Euclid Tractor pulling 18-yard scrapers. In the mining operation we take advantage of as much natural -10- (DE4) drying in the pit as is possible. This is accomplished by opening fairlyN large areas, turning over the material once or twice v4hile letting it lay for a couple months or more before picking it up for transport to stock- piles which total around 15,000 tons. The mill crude bins are serviced by an 8- yard dump truck which is loaded out by means of a Haiss continuous bucket loader, also equipped with electric povier. The truck driver operates the bucket loader and can bring in a 24 hour supply of crude, approximately 300 wet tons, to the crushing plant in the day shift. An air view of plant and quarries on Page 12 shows many of the features so far mentioned. PRODUCTS: The finished products are powders having a particle size of 90% less than !;0 microns, a loose weight of 12 lbs./C.F. and a tamped weight around 19 lbs./C.F. The products fall under three general classifications; NATURAL, CALCINED and FLUX CALCINED. All of these materials are dried, milled, classified for removal of grit, and sized by additional milling and air classification. NATURAL is a grayish to white material; CALCINED grades are pink or buff, having in addition to the above been subjected to calcination in the rotary kiln; FLUX CALCINED products are snow white, in the calcination stage having additionally been - treated in the presence of a flux. The last mentioned products predomi- nate by a considerable majority. PROCESSING: A schematic Flovv Diagram is shoe on Page 14; it has been simplified for clarity but shows all the key elements in the operation. -11- A Great Lakes Carbon Corporation DICALITE DIVISION Air View TERREBONNE PLANT looking in a Westerly Direction Processing Plant in center adjacent to Buckho.rn Canyon Road. 100,000 gallon fire protection tank on tower just to south of plant area. Several stockpiles visible northwesterly from plant area. 200,000 gallon fuel oil tank westerly from mill area. - Laboratory,,,Hill section of quarry visible in foreground. Top west bank of Deschutes River visible in immediate foreground. Old cut in lower right hand corner exposes edge of diatomite formation. Typical section of quarry westerly from water tank and plant area. Euclid Loader directly above water tank on diatomite tench. Overburden dumps visible at left of mined area. Dump along east side of Deep Canyon in right back roun dry ng sheds visible a ong west-edge of Buckhorn Canyon. Several family dwellings northeasterly from plant area. Typical Juniper covered Central Oregon "High. Desert" in the distance. Documen+ - P -~7-, ;duces Poorly (Arcnived) (DE4 r~ -12- (DE4) The milling operation is carried on 24 hours per day 5 to 6- A ~ F, ys per week, sixty-five to seventy-five men being employed. The proce includes the folloFving stages in the order-shown: CRUSHING - By spike roll crusher, fed by apron feeder. DRYING - Flash drying in transport piping and cyclone system. SAND TRAPPING - A multiple series of air classification units for the rejection of sand. CALCINATION - Burning in the range of 17000 to 22DOo Fa in the rotary kiln. Fluxing of white products is accomplished by addition of soda ash with the ratio diatomite. COCILING - By radiation in the Finish End Hilling System. Additional cooling is accomplished in surnner by a rater cooled heat exchanger in the transport piping system. FINISH END iULLING - By 1.1illing blower in conjunction with air classi- fication units. Grit is also removed at this point by additional classifiers. PRODUCT COLLECTION - By cyclones in air series; main product goes to the packing bin and overhead fines are collected in an automatic baghouse dust arrestor for packing off as fines or for recycling back to the rotary kiln. PACKING.- By St. Regis Valve Bag Packers. MATERIAL HANDL LNG - Palletized loads handled by Hyster Half Ton Fork Trucks. LA____BORATORY COA?TROL: - w Rigorous control of the product is maintained at all times by continuous testing of the finished material. Samples are taken of each two hour production period as the product is being made and the product must be approved for uniformity as to specification before it may be loaded out. The Plant Chemist approves all production, he is not responsible to the Superintendent but reports directly to Division headquarters so as to assure unbiased product control at all times. -13- RUCKET LoAmR 'THS 2 IDUDE N 1N STOCK PILES TO ATMOSPHERE *1 BOOSTER r f S 4-- r QX DA NI IA BLOWER INE BINS iTE M YC KILN DRAFT LINE n"2 BLOWER SAND SEPARATION_ R.Y 1 N C, SYSTEM TC CA -'`-"9.1 1 CRUSHER #i EXHAUSTER WASTE 'HANDLING .EUCLID LOADER QUARRY TO p~T MOSPHERE PRI PRODUCT PACKING SEP BIN Ali N. S SEC' TER BLOwI-R coo cFP BAG HOU SE SPILLAGE RETURN k{? 4 WA%Te WATER SCREW BLOWER KILN TO WASTE BIN K W TER T_ST N93 PA KERS P•ACKeR Si..RA_c LUMP BREAKER CUl KERS / GRIT SEPARATION SPILLAGE SCREW CALCINING COOLING FINISH MILLING MAIN PRODUCT PACKING BAGHOUSE PACY.ING d DIRECT CUSTOMER SHIPMENTS DICALITE DISTRICT. WAREHOUSES 4 ~ WAREHOUSING Avo SHIPPING" GREAT LAKES CARBON 'CORP_ TERREBONINE PL-ANTI FLOW DIAGRAM- -4 ONE -w15-5 ° oFO ,TB-D-33~T~ li-- Exhibit G 1987 Oregon Department of Environmental Remedial Action Section - Portland, Oregon - Report to EPA, Region 10 Superfund Program Management Section, Seattle, Washington Recommendation to monitor Upgradient Monitoring Well and that "potential sources" be investigated Re: Application to Rezone - ZC-08 -1, PA - 08 -1 Present Day Health Hazards at the Mine Site west of Terrebonne, Oregon on Lower Bridge Road From Residents of the Lower Bridge Basin Presented to Deschutes County Board of Commissioners - December 3, 2008 PRELIMINARY ASSESSMENT PA Deschutes Valle ORD.:980837314 itation LOWER BRIDGE ROAD TERREBONNE OREGON 97760 DECEMBER 301 1987 Prepared for: U.S. Environmental Protection Agency Region 10 Superfund Program Management Section Seattle, Washington 98101 Prepared by; Reegon Department of Environmental medial Action Section Portland, Oregon 97204-1334 (G1~ Deschutes Valley Sanitatio ORD09808373.14 n INTRODUCTION Pursuant to Cooperative. Agreement V000332-01, Amendment 2 between the U.S. Environmental Protection Agenc Oregon Department of Environmental Quality (DEQ) Y (EPA) and the a Preliminary Assessment (PA) of the site , the DEQ conducted Sanitation. known as Deschutes Valley PAs are intended generally to, identif site, identify sites that Y. Potential hazards at a establish priorities require emergency action, and to (Site Inspections for sites' requiring in-depth investigations The information about the site and is based on readil characterization of the site, is . not a full investigation or The Deschutes Valle Potential Y Sanitation PA was conducted to site. public health and/or environmental threats related to the The PA is based on data derived from the sources identify "J" below. Information gathered during the pA is summarized in the listed in attached EPA form 2070-12, as Attachment 1. A. GENERAL SITE DA A Site Name: Deschutes Valley Sanitation (DVS) Location: 7 miles West of Terrebonne on Lower Bridge Road Owners Franklin Nolan and 2276 West Highland Operators: Redmond,.OR 97756 (503) 548-4398 Norman Weigand, Jr. 5778 North Adams Drive Madras, OR 97742 (503) 475-2888 B• SITE DESCRIPTION The site is an old waste seven miles west of the facility was sited in an mine that was strip.mined. in 1984. The owners plan waste management facility available in Attachment .2. disposal site located in Deschutes County city of Terrebonne. The waste disposal area that was an old diatomaceous earth .A cleanup of the facility was completed to apply for a permit.to operate a solid at .the site. Site location maps are 1 Deschutes Valley Sanitation ORD0980837314 0 C. OWNERSHIP INFORMATION yam, ® I ~y Prior to May 16, 1966 the property on which the site is located was owned by Oregon Western Colonization Co. The property was sold to Great Lakes Carbon Corp. on ;May 16, 1966, to Grefco Co. on May 19 , 1966 and to Deschutes Valley Farms, Inc. on April 10, 1972. On January 21, 1977 the property was deeded to the partnership of Norman L. and Janice A. Weigand and Franklin S. and Doris M. Nolan. The mineral rights on the property are owned by Franklin Nolan, Norman Weigand, Robert Reimensneider, and Fred bunzner. (1,2,3) A list of owners, operators and generators associated with the site was compiled in 1983 (Attachment 3). D. WASTE AND CONTAMINANT TYPES, 0 UANTITIES AND CHARACTERISTICS The following waste types were disposed of at the site: solvent sludge (contaminated with lead; PCBs) and caustic sand (Attachment 4). The sludge may have contained organic pigments which is. the probable source of lead. Fifty six hundred gallons of sludge were manifested to the facility and 796 drums were removed during the cleanup. Most of the drums contained caustic sand at pH 14. One drum sampled. contained glycerol (1,2,3-Propanetriol). A total of 106 55-gallon drums were found to be radioactive and sent to Hanford. The contaminants analyzed.for and detected included cyanides, PCBs,, chromium (Cr), and lead (Pb). Drum, soil and ground-'water sampling data obtained for the site. prior to cleanup are presented in Attachment 5. The following is a brief description of the potential health effects resulting from exposure to these contaminants: Lead - Chronic exposure to lead can,result in weight loss, weakness, anemia, and general malaise associated with gastrointestinal and central nervous system complaints. Acute and chronic exposure may result in brain damage. The'lead at the site was associated with the ink sludge and ink sludge contaminated diatomite. Chromium - The chromium was found in the sludge. The analysis performed was for total chromium. The adverse health effects attributed to exposure to chromium depend on the form of chromium. For example, most* forms of hexavalent chromium are potential human carcinogens. Hexavalent chromium compounds are also irritants and corrosive, and can enter the body by ingestion, inhalation, and through dermal. contact (4). 2 Deschutes Valle 4RD0980837314 Y Sanitation (G 1 Cyanides - The symptoms headaches, confusion of exposure to zn oxygen utilization , and within uthe•biolo effects des include weakness, result from reduction PCBs gical system. Prolonged dermal e Symptoms of systemic exposure to PCBs can lead to n'aUsea. Acute and chronic include edema, chloracne. xposure can leadoaundice, anorexia As a cleanu liver damage (4,•and ~t> of p has occurred at this site ) the cause the contaminants effects are it is very unlikely that,any ifpeesentin high enough concentrat xPosure were to occur. ions to SITE HISTORY AND POTENTIAL PROBLEMS e site. is located =.~ip mined. in an old diatomaceous Odin Deschutes Valley Farms earth g large areas of , a large mine that was A a wide , variety Inc, corporate farm toes, Purchased the Property Y of cro s 1. usable for a In 1972. Seven including hay and x. "aarbttrden , removed griculture because of the acres were the during strip strip land eventuall p mining, was to be P mining. The hutes Valle y reclaimed for replaced by waste Y Sanitation, Inc. was form agricultural production: ate and maintain the waste.dis ed in November of 1974 to its occurring with regard facility. to the sitin Y• The sequence of {'ianation of the property. are re g and construction of the "x is represented role of Centur Presented in Attachment 6, in Attachment y West Engineerin subject r bember 1975 and Fe 7• g at the The facilit p sendin waste - 1976_ ~rhen DE Y operated between , to the a._Qnotlfled facil generators T.;~, Y • T to August 1983 DE y ;e drums at the was notified of im e site. A field inspection Of the disposed hazardous 983 verified the st for. notification. Drums and a site on Aug st 1 disposal were g artment of Water found. On Au lagoon that had been ~q Resources gust 31, 1983 al so staff of Oregon's inspected the site (Attachment tographs of the site ~1sonnel are attached obtained on Se drums and the lagoon Attachment 9 Ptember 8, 1983 (Attachment 5• Samples were obtained y Dom filed was approximately 14• The pH in most of the d f was performed showing X-Ray scan rums nstituent of g seven d , with an uncertainty of ntained seven highest concentration. rums with potassium bein percent lead and 0.03 The sample from the g the cyanide was lagoon also percent chromium, 4*ncentrations performed. In Analysis ' varied. from <0.002 the drams the a es and <0401 and to 0, cyanide mathepl concentration of cyanid in the solid 7 smAlg/1es.In the aqueous ` yanide was 33°A419 and phenolics wa the lagoon as 55 mg/kg. 3 Deschutes Valley Sanitation ORD09808373.14 F The chemist who had worked at the facility was contacted regarding the drums that had been accepted at the site. stated that the barrels at the site were the only ones that they had received that none of the contents had been dumped nor He were their contents neutralized which was to be done prior to and (Attachment lo). placement in the lagoon A survey performed during a site visit b Division on October 11, 1983 showed y the Oregon State Health gamma 20 MR/hr with several instances of ea ngs ~l twe level So 03 up to near the drums. Radioactive materials are defined as those mwith gamma radiation levels greater than .057 mR hr survey indicated no / (Attachment 11) The (Attachment 12), Presence of radioactive material in the lagoon A voluntary cleanup was negotiated with the companies De-Wa responsible for placing these wastes at the site (Precision Castparts and S e Y) (Attachment 13). Cleanup of the site began on November 28, 1983' A map of the site Attachment 14, Prepared for the cleanup is available in explanation of the cleanup is presented in Attachment 15. Approximately ten percent of the drums were found be leaking to some degree. After the soil under the drums to removed there was no-visible evidence of stainin was After the cleanup a g (5)~ containing about 7~ pleads wase disp600 cubic osed of feet of dried ink sludge Inc. in Arlington (Attachment 16 Chem-Security Systems, easy to identif The ink sludge was relatively diatomite (5), y because it was a dark color against the white DEQ collected post cleanup soil and 12, 1984 (Attachment 17 ground water. samples on April storage area were obtained and Composite soil s odium from the drum and percent metal and with an X-ray scan. Potassium for samples obtained in the drum The analytical results further soil removal -would b storage area suggested that no required. Composite soil samples obtained in the lagoon under the ink sludge disposal are analyzed for pH, lead, chromium, PCB, percent metals, and ur ea organics. area were These soil samples included samples of what a Peared p g ble small pieces of sludge that had not been removed to be concentrations of lead and chromium in the composite sample • The (5) in the lagoon were 160 and 67.mg/kg dry weight, respectivel Yobtained Additional sampling was performed on May 14, 1984. Pieces that :were visibly 'present were sampled as well as th h sludge e soil (diatomite) at a depth of approximately disposal area. The lead and chromim levels in the diato lagoon were determined to be acce t inches under the sludge the background) and no PCBs were detectedble (Theeither not mite detectabline or concentrations of total 4 C Deschutes Valley Sanitation tG1) ORD0980837314 k., Pb and.Cr in the sludge pieces (57,000 mg/kg and 12,000 mg/kg) were y determined to be too high.even though the EP toxicity test suggested that the samples would not be classified as hazardous waste if removed. DEQ required Precision Castparts Corporation (PCC) to remove additional soil including the visible pieces of sludge.. A final site survey was performed on October 24, 1984 by DEQ y (Attachment 18). No additional samples were obtained at this time because no small pieces of sludge were observed su site had been. cleaned up (g ggesting that the A final _ radiation survey was performed at the site by the Health Division immediately after the drum removals using field instrumentation.(Attachment 19). Two sets of samples were obtained to evaluate the question of i!hether migration from the site might have caused F= ground contamination. one drinking water well in a position that wouldtbe considered upgradient from 'the site and two springs downgradient from the site were sampled. The site was higher than the s rin s b 5,0 to 100, feet and the springs were assumed to be p g y points for the regional ground water. In both.sets ofo samples amplingthe upgradient well showed concentrations above those of the springs in all parameters analyzed (Attachments 5 and 17). analysis. was performed for the second set of sam les A radiation (Attachment 17)• The results suggested p ggested that radiation had not migrated from the site. I'F Ill. January 29, 1985 DEQ wrote a letter to Precision stating that the site' was cleaned up and it would not be nCastparts ecessary to.place restrictions on the site's use (Attachment 20). ty F. PHYSICAL AND DEMOGRAPHIC INFORMATION The disposal site occupies a small basin that was filled with diatomite. The thickness of diatomite varies with the extent of strip mining. The diatomite is underlain by either well indurated tuff or partially consolidated tuffaceous sand. The facility was sited at this location because of the, low of the diatomite deposits. The location chosen for thee agoonsl h had little to no diatomite present, however, lagoon #4 that was used during operation of the facility had at a minimum"of".6 inches of diatomite remaining after the cleanup was completed as the sample obtained at that depth was in diatomite (5). The material underlying the diatomite is.much more permeable. (Attachments 21, 22) From well logs obtained in the area, the water table is expected to be between 100 and 150 feet below land surface. The local round water gradient is most likly to the northeast towards the Deschutes River. Spring discharge occurs to the north and northeast of the site (Attachments 21, 22), Information on perched water "in the area was not found. 5 Deschutes Valley Sanitation ORD0980837314 (G1) The Deschutes River, which passes northeast of the site, is gaining from the ground water in that reach. The spring at lower bridge, x which is located just northeast of the site,. flows at up to 200 tic feet per second (cfs) into the river (6). Upstream from this ring the flow in the Deschutes varies from 1000 cfs in the winter 20-30 cfs in the summer. Flows of as low as 1 cfs have been ;+served. The drop in flow is due to upstream :l ra for igation. This low flow can cause the water t mperaturewin the er to increase to as high as 801F. This.low flow and falls in the er downstream eliminate the potential for boating on the River this area. Fishing for brown trout, rainbow trout, and whitefish s below the spring; the cold water released by the spring carers the water temperature and increases flow. The area has hi h dlife value including, besides fishes deer g r, and mink and is a quail, raptors, popular area for swimming. (6) Me annual precipitation in the area is no less than 10 VLches. ks population within three miles of the site can not easily be Wermined from readily available data.. The site is located in tumeration district (ED) 703 for Deschutes County. ED 703 had a Vulation of 1230 in.1980 (7). However, ED 703 is approximately . 0 square miles. and includes some small towns. The population ectly around the site. is probably very orrebonne, the closest city. to the east f thel site, T is 71tmiles ay on the opposite side of the Deschutes River. Terrebonne is in 685 of Deschutes County which 'had a population of 1572 in 1980 logs for wells within 1 mile of the site are attached achment 23). Two wells were constructed as test wells for the Mutes Valley Sanitation site. Of the rest, approximately 50% .domestic wells and 50% were irrigation wells. The wells Lally draw water from more than 100 feet below ground surface. wells were found downgradient of the site, between the site and Deschutes River (assuming the ground water flow to be. to the least). CONTAMINANT MOBILIZATION PATHWAYS AND RISK r'~he hazardous materials disposed of at the site ~4 iatomite (5) . The drums were found to ©ntagin enough.pH that, if released, could mig ate throw The contents were primarily NaOH and KOH Some barre soil under the storage area was removed. The lagog r providing a barrier to migration of the m (5). The diatomite under the lagoon was a, least .6 were placed on aerials of high the diatomite. L=s were leaking; appeared to be sposed of there inches in depth ® rir i~ :Deschutes Valley Sanitation ORD0980837314 after the sludge and additional precipitation in the region is low ver`t.ca migration. B,~iet~R~A~ {G1) soils were removed. The annual reducing the risk of extensive Although. some materials may still remain on site, the is very low that they are in concentrations of concern forobability through dermal contact or ingestion. exposure site now, four years post cleanup, The risk of migration from the potential for migration from the site atoethe- to be small. occurred exists but the risk also appears to be small round water having H. PRIORITY ASSESSMENT. It is recommended that no further action be taken at this site. reason for this prioritization is as follows: The 1. A cleanup was performed at the site in 1984. 2. The final radiation survey was performed after the removal occurred suggesting that no further action was required. 3. Although a final set of samples were not obtained, the sampling in May 1984 was for sludge the final pieces were r ved by Precision Castparts Company landTaefinal sludge ~Visual inspectio was ~sf inlthe diatomite in theelagoondThe May 1984 sample obtained was required. suggested that no further action 4. The two sets of ground water samples obtained su ground water has not been contaminated by the siteested that the 5. The site is in a sparsely populated area although the Deschu River adjacent to the site has high wildlife value. tes 6. Ground water is withdrawn at a depth the annual precipitation in the regionrist normally1 inches. lessethann11 0 I. FOLLOW-UP RECOMMENDATIONS The upgradient well was found to have a level of 13 mg/1 and a total dissolved mg/l.' The downgradient springs had TOC TDS levels of approximately 100 m potential sources be investigated that levels in the.upgradient well. 7 total organic carbon (TOC) solids (TDS) level of 496 levels of 1 and 6 mg/1 and It is recommended that iay explain the higher TOC Exhibit H 2008 Letter to Oregon Public Health Division, EHAP Department "Health Consultation" 2 Pages - from Oregon Congressman, Gene Whisnant, District 53 Letter states that "Health Consultation" report was done to "existing use" (Surface Mine) and not "to proposed use" (residential development) And, that the testing that has been done does nothing to address the potential health concerns for people who may live in the proposed development or impact to the Deschutes River. Re: Application to Rezone - ZC-08 -1, PA - 08 -1 Present Day Health Hazards at the Mine Site west of Terrebonne, Oregon on Lower Bridge Road From Residents of the Lower Bridge Basin Presented to Deschutes County Board of Commissioners - December 3, 2008 aENE WHISNANT State Representative .DISTRICT 53 HOUSE OF REPRESENTATIVES 900 COURT ST NE SALEM, OREGON 97301 The Environmental Health Assessment Program (EHAP) Oregon Public Health Division, Department of Human Services 800 NE Oregon Street, Suite 640 Portland, Oregon 97232 November 17, 2008 Subject: Terrebonne Lower Bridge Mine Health Consultation Public Comments: In light of recent public comment and my review, I kindly request you delay issuing your September 30, 2008 report because I do not believe there has been adequate investigation of this site to determine that (1) contact with soil and groundwater potentially affected by former hazardous radiological waste storage on the site poses "no apparent public health hazard under the current use conditions" and (2) airborne dust from the site is an "indeterminate public health hazard." I appreciate the public hearing process you have conducted. However, it is my opinion that during the public comment process you have received inputs which support further investigation. I remain concerned and unclear about your investigation and reporting process and the expenditure of State resources and funds to perform your health consultation'which was based only on the current conditions and current land uses. Senator Westlund in his April 8, 2008 letter requesting a meeting and your contribution of time and resources "to craft a strategy to clean up this site in a timely manner" acknowledges that this site is a potential health risk due to migrant dust. I understand the potential purchasers were at the meeting although I have been unable to obtain documentation. Thus, the study should not only have addressed the current use conditions but covered the proposed land-use zone change which Deschutes County is considering and all parties know is the objective of this report. Senator Westlund states "many questions remain as to the health and safety of the property despite letters from DEQ stating that soil tests confirm that no hazardous waste residue remains in the soil at the site." However, DEQ's Eastern Region Air Quality Manager in a February 11, 2008 letter informed Deschutes County Community Development Department that "while Department staff did visit the site, no statements were made about any (public health) concerns." Office: 900 Court St NE H-277, Salem, OR 97301 --1 Phone: 503-986-1453 - rep.genewhisnant@state.or.us District: P.O. Box 3565, Sunriver, OR 97707 - Phone: 541-598-7560 - www.leg.State.or.us/whisnant/home I submit your report does not assure the local citizens there are no public health issues and does nothing to address the potential health concerns for people who may live in the proposed development. Further, this State report is incomplete in not addressing or directing a study on the impact to the Deschutes River either currently or in the event of development. I concur with the Senator "we need to do everything within our power to protect the river and the scenic value of this stretch of the river." Finally, I am confident that the local citizens are not opposed to the old mine being developed with homes but are concerned about theirs and new residents' public health. This should be our primary concern. I am willing to continue to work with you and other State agencies to produce a public health report which makes a recommendation based upon more research and has the support of the local citizens. Respectfully submitted, Gene Whisnant Cc: Senator Westlund, 900 Court Street, Salem, Oregon 97301 David Blair, Sen. Wyden staff, 131 NW Hawthorne Ave, Ste 107, Bend OR 97701 Director Dr. Bruce Goldberg, 500 Summer Street, NE, Salem, Oregon 97301 Gail Shibley, DHS PHD, 800 NE Oregon Street, Suite 640, Portland, OR 97232 Katy King, DHS PHD, 800 NE Oregon Street, Suite 640, Portland, OR 97232 Dr. Jae Douglas, DHS PHD, 800 NE Oregon Street, Suite 640, Portland, OR 97232 Dr. David Farrer, DHS PHD, 800 NE Oregon Street, Suite 640, Portland, OR 97232 Director Dick Pedersen, DEQ, 811 SW Sixth Avenue, Portland, Oregon 97204 Linda Hayes-Gorman, DEQ, 300 SE Reed Market Rd, Bend, OR 97702 Mike Groves, Deschutes County, 117 NW Lafayette Avenue, Bend OR 97701-1925 Socorro Rodriquez, EPA -Director, 811 SW Sixth Avenue, -Portland, Oregon 97204 2 Exhibit 2008 Photographs of "some" Present Day Health Hazards at the Mine Site at Lower Bridge. Some Waste has been graded over and / or buried. Some waste like PCBs and Cristobalite are not visible to the naked eye and require deep core samples and Plot Forage Soil Maps. Re: Application to Rezone - ZC- 08 -1, PA - 08 -1 Present Day Health Hazards at the Mine Site west of Terrebonne, Oregon on Lower Bridge Road From Residents of the Lower Bridge Basin Presented to Deschutes County Board of Commissioners - December 3, 2008 Document Reproduces Doody (Archived) ~ ~'!Y J'~ ~ 1 ~ J t^t r W'N ,4 ~ Vr, ti.• tA. '1, suits 1 i,. t rp 1 t ~0'y R Y. r Y' ,~1 r ~ fi 1. t i~~ t Uncontrolled Airborne Pollution that has polluted residential areas in the Lower Bridge Basin for decades. This pollution may contain Crisrobalite that was dumped as cooked waste at this site. Long Term, Low Level inhalation of this Group 1 Carcinogen has caused irreversible upper respiratory illnesses- Fibrosis, Silicosis, Lung Cancer and Death. -OWN Oro r k a_ Sludge from one of two former 200,000 gallon fuel tanks. This tank has underground lines that have been at this site for decades. Document Reproduces Poorly ~t R Vat i zq t,- 61"1 n$t~~Y t oe. w fo mow 04 Fit C~ a, ~ ' eK• 9 d f'K J, N~,,r Partially buried (and shot) barrel by old buildings. ~A ifj S''.~ t'f % ti 4 (4~ a T r§~Zi. 4 s; r w 1.f d' S~ Oocumen$ Reproduces P®ojgy QkcNved) F }f t f, r1 ~~k l (%/1/111111~Ipy+~ SJ~:r \ 2 4 These barrels are full of an unknown material that has been lying at site for decades. Dccsmen$ Reproduces Poorly 'Archived) 000 i'•T r / Document Reproduces Where DE was cooked to create Processed Waste with high levels of Cristobalite - a Group 1 Carcinogen. Tons of Respirable, Cooked Waste was taken from this building and dumped at the site by 6 companies for 42 years. Unknown cooked waste. NL I-NJ m This material (copper manganese?) may have been used to modify particulate size in the 2 Gould Furnaces that heated Diatomaceous Earth to 2,200 degrees F. k, (f-~nRT J n\ r' One of many pieces of Solid Waste that were recently graded over and buried at the site ' 'S I This Solid Waste was recently graded over and buried at the site. 6 ~s y 1cumat^jo, Reprell.cas ,00® "y Unknown Waste at the site (1~.~; • t"ry,~ ~~nr I~((~~~,:N~Pa ter: ~,r~G ~~ll( J `/'W~LI~Y JIV J.. IJYISS.JL C/ ~,J✓' 's j. irl1j A 97 year old, 586-Acre Mine Site completely stripped of Top Soil that routinely pollutes residential areas, farms and ranches in the Lower Bridge Basin, ~4~eTiG% OW o~~rvl~; Oc~vi~~2 30 2 oFJ~ 1111- . r.-0 "4 M Despite assurances, neighbo Terrebonne mine is still a hazard BY SHELBY HiLMATOOi] IN THE, WIND Lis ment Reproduces !~®ol~~., (Archived) Dwurr, .Jay Pooroiy OCTOBER 30, 2008 / THE SOURCE WEEKLY / IF, This past week the State of Oregon sent out a health advisory announcing that a for- mer mine and toxic waste disposal site along the Deschutes River near Terrebonne is nothing to worry about. That's news to neighbors who say they have been inundated with what they say are cancer-causing dust clouds. They say the state has downplayed the risks associated with the site even as its owners lay plans to redevelop the former mine as a rural housing subdivision. The owners of the site are requesting a rezone from the current Surface Mine and Agriculture zoning categories to Rural Residential Exception Area. The Daniels Group plans to redevelop the site as a planned unit development with 74 homes, which would be permitted under the county's cluster development rules. However, neighbors fear that lingering pollution could be disturbed by a residential redevelopment plan, exposing them to hazardous chemicals. They are demanding that both the state Environmental Health Assessment Program (EHAP) and the Department of Environmental Quality (DEQ) do more testing before development proceeds. In the meantime, a county hear- ing's officer has recommended that county commissioners deny the redevelopment ap- plication, in part because the owners have failed to complete all the requirements of the state clean-up plan. A DUST UP IN DISPUTE Imagine spending gorgeous Central Oregon spring days trapped inside your home while clouds of white dust 200 and 300 feet high swirl around the abandoned mine across from your property. visibility is less than a quarter mile. Sometimes the dust makes its way into the river where it forms beach ball sized gobs of foam that float on the surface of the water. For residents living around the former Lower Bridge Mine it's more than a hypothetical scenario. According to the most recent zoning hearing documen- tation, there are nearly 700 parcels of land with over 400 residences within three miles of the mine. The DEQ has been receiving dust complaints from area res'-dents since 2003, according to DEQ"- documents. Last December Frank Messina, r` •'r an Environmental Specialist for the DEQ, visited the site and observed white dust blowing off the property. Messina issued the site's owners a Notice of Nuisance Determination, noting that the dust "cre- ates a potential health impact... if inhaled regularly." It went on to state that the dust "contains some small amount of crystalline silica and quartz and this can be harmful if inhaled" and can "cause health problems." In response, the owners placed a pivot sprinkler on the site which waters ap- proximately 140 acres of the 557-acre site. Residents say that the massive dust clouds persist and have even filmed them occur- ring after watering started. "I live approximately five miles from the mine," says Terrebonne resident Sarahlee Lawrence. [even] though my ranch is not right next to the mine, I can see enormous plumes of white earth from the mine in high winds. The pollutants of the mine travel far from the actual mine site and something needs to he done about it." The health hazards that area residents are concerned they are breathing in are significant. From approximately 1911-1972 a slew of owners mined diatomite, a product that is used in cleaning abrasives, filters and kitty litter. One of the byproducts of its production is crystalline silica or cris- tobalite, which can cause inflammation and scarring ofthe lungs (silicosis) and cancer. Dave Boyer and his wife live in Lower Bridge Estates and the couple's home overlooks the mine. Boyer says they are often exposed to mine dust on windy days. "The mine site are representative of the conditions th IV, historiralh created complaints from neighbors. Weil u,a , eports fron, the three days that samples were taken say otherwise im; show very low wind levels and even rain. nut Farrer aml Messina both agree that residents have overestimated c h, risks associated with dust events. At the August 13 nice l- ing in Redmond, Farrer told residents that the dust frnn, the mine they were breathing in was no more dangerous, t( them than regular dust. "Dust of any size and any source can cause short-tent, health respiratory problems," explained Farrer in a suhsr- quent interview. According to Farrer, at some point in their lives, most people have experienced o thick, yw4 visible dust cloud, which causes thorn to C ough and sneeze. "Generally, is soon as you et out of that cloud, a fter a few minutes rn e ody is able to clear all thatstu "purr t'r you feel back to normal," says Farrer. "The people who usually get silicosis are people who are wnrking in specific industries like sandblasting or grinding stones or work ing in industries where thevre drilling in stone," says Farrer. "In an ocr-upational set tinglike that, you're breathing visible clouds ofiteighthoursadayfor4Ohoursaweek. it hard to imagine a scenario where you coulc average that level of exposure living half s mile downwind from the site, even if there was some residual cristobaiite thei e " Area resident Diane Lozito disagrees In 'O' testimony she submitted for public com ment in April she stated, "Our exposure tr this product over 17 years has caused me lung function problems and a constant dro cough." Lozito requested that the mine own- ers cover the costs of her pulmonary testing. "I have all tht signs of silicosis," she said, "And although I hope it has not gone that far, I am kept up at night coughing and have dif- ficulty breathing." Residents want an EPA-approved test conducted at th,: mine site. So far, this has not been done. The 2006 tests were done to OSHA standards, which represent a lower thresh- old. The big difference between the two tests is the lengt 1: of testing and what particle size is tested for. According tc Farrer, the NAAQ tests are usually done in urban areas and measure air-quality continuous]) for one year. I lie OSHA test measured -7,i nucri on Pnge t, currently poses a significant danger to us and our neigh- bors. On days when the wind blows [mine] dust to us, we fee- spend ing anytime outside," says Boyer. "We stay inside our hous,r. Feeling like prisoners on our own property we feel betrayed by the DEQ, whose job it is to protect the pub- lic from such environmental hazards." But state experts say the risk to residents around the mine has been greatly exaggerated. EHAP's October report states th at airborne dust from the site is an "indeterminate public health hazard" and recommends that further air monitoring be done_to determine the particle size and av- erage concentrations of dust in the, air, and to measure the eft ; 4w- amount of cristobaiite in the dust. But the air uali tests performed in 2006, on which the findings are based, failed to provide much information for state regulators, says David Farrer, a Toxicologist. for, EHAP. "There were problems with the data. One of those was that [the testing dates] may not have been a representa- tive time of what it can be like," Fatter says. "The other problem with the data was that some of the citizens where the monitors were placed tampered with the monitoring devices. They turned them on and off when it was meant to be left on all the time." Ti essina says the tests were performed on days that AFTER MINING DAYS, THE LOWER BRIDGE SITE SERVED AS A HAZARDOUS WASTE DUMP. A FILE PHOTO FROM THE DEPARTMENT OF ENVIRONMENTAL QUALITY SHOWING ONE OF THE HUNDREDS OF BARRELS OF WASTE THAT WERE FOUNDON THE FORMER MINE SITE IN THE 19705 AND 19805. NEWS continuedfrompagel3 a few days. More importantly, the NAAQ test measures for air particles of a specific size - 2.5 microns (smaller than the diameter of a hair follicle). This size particle is known to cause long-term health problems. The OSHA test didn't measure for particle size, says Fatter, just for amounts of crystalline silica. "Right now we don't know what the particle size is around the mine and we don't know what tl-,e concent, "Juti i:, of dust in the air," says Farrer That's a concern for residents. "To date, no one has tested air quality when this dustblows to gather exact data describ- ing the severity and danger of the pollutants in the air," says neighbor Greg Druian. A TOXIC LEGACY Residents living near the former mine are also concerned about groundwater contami- nation because of the site's history as a toxic waste dump, something some residents say they didn't know when they first purchased their homes as many as 17 years ago. While the DEQ declared the site clean in 1984 and again in 1987 at the behest of fed- eral regulators, residents are concerned that a site that held volatile organic compounds, cyanide, lead, chromium and radioactive materials for as long as eight years could pose a lingering threat to ground and surface water. The recent discovery of PCB's at levels above state health standards on the site has only added to their concerns. The site's history as a waste dump dates back to 1975 when DEQ approved the site as an industrial waste disposal site. In January of 1976, the disposal permit was revoked by the DEQ when it was discovered that Deschutes Valley Sanitation, the company that owned the site, had misrepresented the depth of the on-site lagoons to be used for storing waste. However, by that time the site had already received 5,600 gallons of lead ink sludge from Spe-De-Way Products out of Portland as well as 295 55-gallon drums of caustic sand from Precision Castparts out of Portland. In 1977, Frank Nolan - one of the site's new owners - applied for a renewal of the waste permit and was denied. In 1983, tipped off by an area resident, the DEQ went to the site and discovered nearly 800 barrels of waste along with a lagoon filled with black sludge. "Some of the drums have bulging tops and others have been corroded to the point that they leaked and discoloration from leaking liquids is visible on the side of these drums. A bullet hole and visible signs of past leakage was apparent on one drum," the report states. in all, tour dump in all, four dump truck loads of $1"I~IC~f ~~~dC 51UY~g~ sludge and 796 barrels of toxic waste 14 of were removed from the site, includ- and 796 barrels of toxic. ing 161 barrels of low-level radioac- waste were removedI five waste and about 45,300 gallons ofchemicallyhazardous andradioac- from the site, tive wastes in all. Some of the waste was shipped to the Hanford Nuclear Waste facility in Washington, one of the largest and most polluted nuclear waste sites in the country. The EPA considered declaring the former mine a Superfund clean-up site, a designa- tion reserved for only the most environmentally damaged places in the country, but de- termined that the site did not qualify based on assurances and preliminary tests done at the site by the DEQ. Residents say that the original tests done by the DEQ were far from comprehensive. They looked at the discovery of PCBs this past April as proof of this. In April of 2008, PBS Engineering and Environmental, at the request of PacifiCorp (who were ripped off by an area resident), conducted soil tests around the areas where the power company had power substations and electrical transformers. In the April report by PBS Engineering and Environmental, the samples taken at the Lower Bridge Mine site exceeded the three screening concentrations set by the DEQ for residential, occupational and construction worker exposures. These areas were cleaned, re-tested and deemed PCB-free by PacifiCorp by August. „y DEQ's Anderson says that in his opinion, there is not a threat of PCBs leaking into the groundwater. "It's not really that easy for the stuff to travel vertically. It can theoretically happen, but that's pot a concern. If it gets rezoned, we'll definitely explore that by boring under the area, but typically that doesn't happen," Anderson says. Residents say that the soil sampling that was done is still not satisfactory. "It is possible that cleanup operations in 1983 and 1984 failed to remove all toxins on site," says area homeowner David Boyer. "If toxins do remain on site, permitting 57-74 new wells to be drilled on the property could allow toxins to enter and contaminate our groundwater. This could impact all existing residences that rely upon this shared ground- water, as well as allow toxins to enter into the Deschutes River," he says. With things like 300 foot dust clouds, questionable testing methods and the possibil- ity of toxins that haven't been tested for seeping into the groundwater, residents around the former mine site say they want more proof that the site is hazard free regardless of whether or not it is redeveloped. "I'm concerned about the past pollution of the ground and possible pollution of the air," says area resident Ron MacKay. "This site should not be approved for Rural Residential [use] to allow redevelopment until the ground and air quality are tested and proven to be safe by the DEQ or appropriate state agencies," he says. Neighbor Greg Druian agrees. "If reputable studies of pollution at the mine site are done, and effective steps to remove this pollution are taken, then rezoning might be a worth- while outcome for the mine," he says. "But rezoning and development without attention to mine pollution is absurd and dangerous." In the meantime, residents are gearing for another showdown with state regulators at a community meeting scheduled for November 3 at the Redmond Senior Center. You can bet area residents will be voicing their opinions about their unaddressed questions. SW ,~Cument Reproduces IPbu,". 14 / VJVv`N-rsw--cK!Y.7GV,