HomeMy WebLinkAbout2-10-09 Latham Testimony - TID - DeweyTumalo Rim Water Improvement District
64682 Cook Ave., PMB 94
Bend, OR, 97701
February 10, 2009
Deschutes County Commissioners
Community Development Department
117 NW Lafayette Ave
Bend, OR 97701 -1925
BY:
FEB 1 1 2008
REF: RC- 08- 1 /CU -07 -102/ SP- 07 -46/ MA -08 -3 and MA -08 -4, Applications for a
Conditional Use Permit by Latham Excavation, Inc.
Commissioners,
I am writing to again express the concerns of the Tumalo Rim Water Improvement
District (TRWID) with respect to the expansion of the Johnson Pit mine. The
TRWID remains deeply concerned about the impacts of the proposed actions of
Latham Excavation on the quality and quantity of water that we depend upon to
service the members of TRWID.
As I testified before you at your January 21, 2009 meeting, I represent the Board of
Directors and 53 property owners of the Tumalo Rim Water Improvement District
(hereafter TRWID). I have been providing both oral and written testimony on this
application since its inception late in 2007. The Board has requested that I reiterated
those concerns directly to you since Latham Excavation has appealed some of the
findings of the hearing officer. I assume all the previous record is available to you, thus I
will not burden you with the voluminous material previously submitted. Rather I will
attempt to highlight key concerns.
For the record, I am a retired geologist having worked for the County of Los Angeles,
California for 32 years. I also have former experience with the United States Geological
Survey (GS -11) and academic experience at the University of California and Texas Tech
University.
Let me say up front that there is always room for disagreement among professionals,
geologists in this instance. Mr. White has provided considerable rebuttal from "expert"
geologic consulting firms regarding the concerns I and Oregon DHS geologists have
raised. I have responded to each of the "rebuttals ", but it still remains whose opinion one
wishes to accept. There are no absolutes. The simple issue remains that there appears to
be an obvious conflict when there is a large, active mine less than 1800 feet from our
wells, less than 200 feet above the aquifer that supplies our drinking water, a mine
situated in the middle of an Oregon State designated water protection area defined
specifically to protect our drinking water. We have heard all sorts of testimony defending
the legal rights of the mining interests and the decisions made in the ESEE in 1990.
However, I would argue that it is your responsibility as elected officials to weigh those
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rights against to rights of 53 properties which have been receiving water since 1977 (well
1) and 1982 (well 2).
We are pleased that the hearing officer recognized the need for water quality monitoring
at the Latham Mine, particularly in the case of a reported spill (emphasis mine).
However, as several of us testified before you on January 21, there is little or no
independent effort on the part of county and state regulatory agencies to monitor or
inspect mining activities. To the contrary, it appears that several of the agencies
(DOGAMI and DEQ) have gone out of their way to provide exceptions to our concerns.
Consequently, we are dependent on the "good will" of the mine operators to self regulate.
If the Banking /Wall Street debacle is any example of self regulation, then our water
quality is doomed.
BACKGROUND ON TRWID
The full background of the TRWID was presented to the County Hearing Officer in a
letter dated February 16, 2008. Summarizing, we are an Oregon Chapter 554 Corporation
incorporated as a Community Water System on May 11, 1982 to provide water to 53
properties occupying 118 acres with a current population of approximately 136. The
TRWID is served by two Oregon certified wells. The TRWID is regulated and inspected
in accordance with all pertinent state regulations and water testing results are reported to
members annually in a Consumer Confidence Report. Oregon state records demonstrate
that the TRWID has consistently provided very high quality water. Particularly notable is
the absence of various inorganic compounds (IOC) and soluble organic compounds
(SOC) that are of concern for water quality.
TRWID AND THE OREGON DRINKING WATER PROTECTION PROGRAM
The Oregon Department of Environmental Quality (DEQ) regulates all public water
systems with greater than 3 hookups. The Oregon Department of Human Resources
(DHS), Drinking Water Program prepared a Source Water Assessment Report (SWAR)
for the TRWID in May of 2003. This effort delineated a Drinking Water Protection Area
for the TRWID (Attachment A). This attachment specifically identifies the "Johnson Pit"
mine (the property under consideration in CU -07 -102, SP- 07 -46, MA -08 -3 and MA -08-
4) and the well on the property as potential sources of water contamination, (Attachment
C, Items 2, 4 on Table 2 in letter submitted to Hearing Officer on 16 February 2008). The
full Source Water Assessment Report, Tumalo Rim Water Association was submitted as
Attachment F with the February 16, 2008 letter.
These reports by the Oregon Department of Human Resources clearly demonstrate that
the water source for TRWID passes directly under the mine, processing area and well of
the Latham Excavation, Inc. property. Groundwater movement from the mine area is
directly toward the TRWID wells mostly within the 2 -year Time of Travel zone for the
TRWID wells.
Page 2
RECOMMENDATION FROM THE DRINKING WATER PROGRAM, OREGON
DEPARTMENT OF HUMAN RESOURCES
When we became aware of the proposed mine expansion, the TRWID contacted the
Oregon Drinking Water Program to secure recommendations for protection of our
watershed. I will repeat the response we received here.
"The Department of Human Services' Drinking Water Program has recently assessed the
drinking water supply for Tumalo Rim Water Association. The assessment included
identifying the source of the groundwater supplying the Association and the susceptibility
of that source to potential contamination. The assessment indicated that the source of
groundwater for the Association's wells is to the SSW -SW.
We have been made aware of a pending application for aggregate mining within the
drinking water source area, and more specifically, within what has been designated as
the two-year time -of- travel zone, i.e., groundwater will reach the well within a two year
time period.
Given the proximity of this facility to the Association's drinking water wells, we
recommend the following actions.
1. The Department of Geology and Mineral Industries designate the drinking water source
area as a "sensitive hydrogeologic area ", and that permit restrictions be consistent with
that status;
2. The permit conditions should include such actions as the use of drip pans, proper
disposal of spent petroleum products and other chemicals, secondary containment for
fuel and other stored chemicals, spill response plans, and other appropriate best
management practices;
3. Facilities for fueling, washing and maintenance be located as far as reasonably possible
from the well sites;
4. An evaluation of the risk posed by bringing outside materials to the site for processing,
including material such as asphalt;
5. A reclamation plan consistent with being located within a drinking water source area be
stipulated.
Dennis Nelson
Groundwater Coordinator
Drinking Water Program
Oregon Department of Human Services
444 A Street
Springfield, Oregon 97477
541- 726 -2587 (21)
dennis. o. nelson(&_,state. or. us"
Most of these recommendations have been set aside in the hearing process. We received
nothing but a run around from DOGAMI on the question of the "sensitive hydrogeologic
area ", but they were quick to absolve Latham when asked by Mr. White. As tax - paying
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citizens, we would ask what is the point in the state of Oregon supporting a water
protection program if their recommendations are ignored?
We also received recommendations in discussions with the Deschutes County Water
Program coordinator. We are pleased to report that the few "concessions" we have
obtained were probably due to his efforts.
SUMMARY
In summary, we remain concerned about 1) water contamination from expanded
mining activities and unprotected water wells, 2) a plan for deactivation of the well
once mining activity ceases, 3) increased water use and potential local drawdown of
the aquifer.
As we previously requested, we further recommend that as a condition of approval,
the Deschutes County Water Program be contacted to provide recommendations for
water protection in our source water protection area and that all forthcoming
recommendations be made a condition of approval of the proposed mine expansion.
In order to protect our water users from potential contamination, and to provide an
early warning in the case of accidental contamination, we request that, as a
condition of approval of the expanded mining activities, the Latham well be tested
for the standard array of contaminants on an interval recommended by the
Deschutes County Water Program and that these results be reported to the TRWID
and the appropriate state agency.
This latter is no less than we are required to do on a regular basis. The TRWID continues
to be responsible stewards of this precious and limited resource, and we appreciate the
high quality water we enjoy.
We appreciate the time and effort you commissioners are providing these concerns.
David P. Whistler, PhD.
Treasurer, Tumalo Rim Water improvement District
Attachments: Map of water protection area, TRWID, as prepared by the Oregon DHS,
Drinking Water Program
Page 4
David P. and Helen M. Whistler
64194 Tumalo Rim Dr.
Bend, OR, 97701'
February 10, 2009
Deschutes County Commissioners and
Paul Blikstad, Senior Planner
Community Development Department
117 NW Lafayette Ave
Bend, OR 97701 -1 925
BY: rcireD
FEB 1 1 2008
DELI ltEd BY:
REF: RC- 08- 1 /CU -07 -102/ SP- 07 -46/ MA -08 -3 and MA -08 -4, Applications for a
Conditional Use Permit by Latham Excavation, Inc.
Commissioners,
We are writing this letter to reaffirm our concerns about the apparent lack of
required reclamation at the mine property, the dust generated by ongoing mining
activities, and the health risks this uncontrolled dust produces.
We have addressed these concerns, both in oral testimony and written documentation on
numerous occasions during the County hearing process beginning early last year. You
will recall that we testified on these at your meeting on January 21, 2009. We have
provided extensive background research on these issues. We assume you had access to
and examined all this previous testimony and documentation at your "working session."
This will only briefly address on -going concerns.
In addition to numerous verbal conversations with these departments (some for several
hours at a time) we —as individuals, as representing the Board of Directors of the Tumalo
Rim Property Association (TRPOA), and as co- complaintants with 41 members of the
Tumalo Rim subdivision. - -have filed a number of enforcement complaints addressing
most of these concerns. Lack of subsequent complaints should NOT be taken as
confirmation that the problems have been solved, but rather that we tire of having to be
vigalant 100% of the time, with no apparent satisfaction.
DEQ:
May 7, 2008 -Dust complaint with photographs [Whistler, TRPOA Board],
May 14, 2008 -Dust complaint with photographs [signed by 41 members].
May 15, 2008 -Dust complaint with photographs [Adams]
DOGAMI: May 14, 2008 -Dust complaint with photographs and complaint about
misleading statements by DOGAMI officials in support of mine. [Whistler,
TRPOA Board]
County Planning Commission:
March 14, 3008 #1 Operation outside the conditions of its SP -95 -10 conditional
land use permit, and potential threat to health of families in the TRWID [Adams
and 31 members]
March 14, 2008 #2 Operation outside the conditions of its conditional land use
permit because of lack of incremental reclamation. [Whistler and 31 members]
Page 1
In most instances, it appears that the various state regulatory agencies (DOGAMI and
DEQ) and County Planning used these complaints as a means to identify exceptions that
absolved Latham Excavation of required actions rather than directly addressing the
concerns.
Quite frankly, "bottom up" regulation does not work under such circumstances.
Consequently, we are placing our faith in your good efforts to protect the welfare of and
address the concerns of the citizens of Deschutes County. As you heard in testimony
from many residents, we all acknowledge the existence of the mine, but we all had
reasonable expectations based both on statements made by Cascade Pumice and on the
conditions placed on the Cascade Pumice as the previous operators, that the mine had a
limited resource that would be exhausted in a reasonable time, at which point the
property would be reclaimed. The current request expands operation well beyond these
expectations and those spelled out in the 1990 ESEE.
We are not attorneys, but we have examined all of the pertinent legal documentation
regarding this case, and in most cases the intent of regulations, previous mandates and
previous regulatory actions is clearly obvious to any educated reader. As elected
representatives of all the people, it is this clear intent that we ask you commissioners to
carefully consider and uphold.
We are certain you will receive voluminous documentation from Mr. White and the
various agencies mostly absolving Latham Excavation of any further action.
For example, with regard to reclamation: there appears to be a legal debate regarding
who has authority. This simply "muddies the water ". Extensive reclamation plans were
drawn up by DOGAMI prior to the1990 ESEE process, the County adopted these plans,
and Cascade Pumice accepted them as part of their operating plan. Previous approved
plans did not include an ever expanding, un- reclaimed, dust generating back wall to the
mine. Previous approved conditions only anticipated mining of the Bend Pumice, a
relatively limited geologic unit. These conditions did not anticipate extensive mining and
sales of the Tumalo Tuff, a unit with far more extensive volume at the Johnson Road pit
mine. Previous conditions did not authorize processing and sales at the mine.
Conveniently, DOGAMI now claims, regardless of previous restrictions placed on this
location by the County, sole jurisdiction over reclamation, then provides Latham
Excavation with the loopholes to absolve them of most of the 1990 conditions. As one of
us (David Whistler) said in his public testimony before you, this state agency is doing
Deschutes County no favors.
With regard to dust (Attachments A -D): DEQ seems to lack any measurable
standards, and assumes if they don't hear otherwise, everything is OK. Mulch, which
was applied only after complaints were filed, is only temporary remedy, and does not
address problems of huge clouds of dust blowing from a newly opened headwall.
Documents entered into the record show that OSHA requires that any product with
greater than 1 /10th of 1% crystalline silica be labeled CANCEROUS. According to the
AGI report two of the 3 samples tested from this mine were already at or exceeded this
Page 2
limit. OSHA Regulations on Mineral Dusts states that anything above total quartz (silica)
dust of 30 mg/m3 and total nuisance dust 15mg /m3 is considered hazardous. The
rhyodactic vitric ash flow tuffs being mined at the Latham site (Siemens & Associates
Report, Exhibit E), by petrologic definition contains between 66% and 72% silica. Mr.
White has provided additional `expert' testimony that these are only applicable in
industrial instances (this mine is industrial). However, just because the regulations are
for industry does not diminish the fact that the reason for the regulations are for the
protection of health and individuals. The record also shows that "the freshness of the
particle surface (for example, freshly crushed pumice) appears to play a large role in the
toxicity of the silica. Freshly ground quartz has been found to be much more cytotoxic.
It is proposed that this may be one reason that extremely high exposures to desert dust
(more weathered) have resulted in more beguine conditions (than silicosus), referred to as
"simple siliceous pneumoconiosis" and "desert lung syndrome" and "stage 1 silicosis ".
And the World Health Organization finds that: "Respirable silica dust may be invisible
to the naked eye and is so light that it can remain airborne for a long time. It can thus
travel long distances in the air and so effect populations not otherwise considered to be at
risk." And, "If dust clouds are seen in the air, it is almost certain that dust of potentially
hazardous sizes is present. However, even if no dust cloud is visible, there may still be
dangerous concentrations of dust present with a particle size invisible to the naked eye
under normal lighting conditions. "
Mr. White also provided testimony that the percent of crystalline silica present in the
material mined here is less than the toxic level, however, hand lens examination of the
tuff mined from this location, and was dumped on Johnson Road showed a higher
percentage of crystalline silica.
Track record: the Latham mine has a dismal record of proactive mitigation of offsite
impacts, and of following regulations under which they operate at this location under the
former CUP. Details are already identified on the record but they include:
• Hydroseal: has not been used since the original application (which was not
applied until photo- documented complaints on huge amounts of fugitive dust
were filed with DEQ.), despite the fact they state that it should be reapplied every
6 months..
• The water truck was not regularly utilized until a dust complaint was filed.
• Pumice trucks were not covered until brought out in public hearing although were
required as part of the CUP under which they were operating.
• Huge piles of vegetative matter were compiled, and in fact trees, wooden
construction palates and metal fencing materials were imported and dumped
onsite, until an enforcement complaint was filed with the county identifying these
piles as a fire hazard and identifying the fact illegal dumping was occurring.
Immediately after Latham Excavation sought a bid for chipping costs and
submitted this as evidence that they were already intending to take care of the
issue (Note that no chipping has actually been done to date). They also admitted
that they `made a mistake' to import vegetative and man -made vegetative
material.
Page 3
• A + -1000 gallon fuel tank was not identified by Latham as being onsite until they
were notified by the planning commission that queries had been made by the
public regarding regulations that needed to be followed for the tank to be
permitted. Then, it was quickly and quietly removed.
• Huge boulders by the 100's of truckloads were brought in from excavation sites
where Latham Excavation had contracts. When the complaint was filed regarding
this site being operated as a landfill was filed, Latham suddenly cut dramatically
back on the amount (and type) of material being imported, and claimed that
materials were being brought in for reclamation. Note that no reclamation using
these materials has been done and, in fact, they are likely set to crush this
imported material for sale, since they do not have to reclaim to grade.
• "Contour ditches" that were "designed to convey any future flow into an existing
depression well" were constructed early April after complaints were made in
testimony regarding where water was flowing. Note that this depression is not in
any way lined to prevent accumulated -- possibly contaminated - -water from
seeping into the water upslope from the Tumalo Rim Water Improvement District
wells or wells serving the adjacent Hoffman and Todd properties.
• Weather station was not brought in until nearly a year after operation was begun.
In conclusion, we ask that you commissioners carefully consider the long term impacts of
the proposed expansion of the Latham Mine on the residents of Deschutes County.
Clearly circumstances in the county— composition, economics, relative importance of the
`conflicts' identified in the ESEE - -have significantly changed in the 19 years since the
original ESEE study. Oregon State and Deschutes County agencies have the benefit of
volumes of new information on hazards that were not available in 1990. We ask that you
put this mine expansion request in a 2009 perspective, taking into account the health and
welfare of its citizens, or strictly hold Latham Excavation to those conditions agreed upon
by the original operator when they sought county approval in 1990.
Sincerely,
Helen Whistler
Treasurer
Tumalo Rim Property Owners Association
David P. Whistler
Treasurer
Tumalo Rim Water Improvement District
Attachments A -D
cc: TRPOA; TRWID
Page 4
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