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1995-01003-Minutes for Meeting April 20,1994 Recorded 12/1/19940137-158"1 95-01003 MINUTES Cascade Pumice Public Hearing 94 DEC -I R9 2: ( 2 DESCHUTES COUNTY BOARD OF COMMISSIONERS April 20, 1994 '1 +4 Chair Schlangen called the public hearing to order at 5:37 p.m. Board of Commissioners in attendance were Nancy Pope Schlangen, Tom Throop, and Barry Slaughter. Also in attendance were Bruce White, Assistant County Counsel; and Dave Leslie, Planner. PUBLIC HEARING ON AN APPEAL OF HEARINGS OFFICERS FINDINGS AND RECOMMENDATIONS ON SP -93-29 BY CASCADE PUMICE Commissioner Schlangen reported this issue had been before the Hearings Officer at public hearings on December 9, 1993, and January 6, 1994. Chair Schlangen asked for disclosure from the Commissioners for any prehearing contact in this matter. All three Commissioners reported having no prehearing contact. Chair Schlangen also asked audience members if they felt any member of the Board of Commissioners should be challenged with bias or inability to make a fair decision in this matter. No challenge was made from the public. Dave Leslie reported the subject property was currently zoned and designated on the Comprehensive Plan for surface mining. It was considered as part of the legislative package considered by Deschutes County in 1990. There are two adjacent properties known as County Site #355, a 40 -acre parcel owned by Cascade Pumice, and Site #356, a 120 -acre parcel owned by Tumalo Irrigation District. Mining activity that was proposed by the applicant was an outright permitted use in the surface mining zone, subject to a site plan that complies with Chapter 18.52 of the County Code. The County Code requires approval of the Site Plan when or if the applicant demonstrates that requirements of the ESEE analysis and the setbacks, standards and conditions of Title 18 have been or can be satisfied by the proposed Site Plan. The Hearings Officer approved the Site Plan in February with twenty-eight conditions of approval. Many of those conditions addressed specific standards and conditions in Title 18. There were several issues on which the Hearings Officer recommended additional information be submitted if this application was appealed to the Board of County Commissioners. The applicant did submit this information and will provide further testimony at this hearing. Sharon Smith, representing Cascade Pumice, reported she received the appellants materials on the afternoon of Tuesday, April 19, 1994. She felt there was too much information to digest in a short �•:;C;:OFItMED KEY CHED t tf 0 8199 JA = 01Q95 $ 0137-1588' amount of time and requested that the record remain open for written testimony and additional exhibits. Sharon Smith reported that Dugan Pearsall, Manager of Cascade Pumice, will be testifying. Kerrie Standlee will then testify regarding the noise study. Dave Bateman, David Evans & Associates, will discuss the visual screening. Sharon will then summarize their presentation. Commissioner Throop asked how much time the applicants would need for testimony. Sharon felt that it should take approximately one hour. Sharon Smith reported that Cascade Pumice filed the Site Plan application on Site #356 and #357. Substantial documents were submitted to show how the plan met the ordinance criteria. There were two public hearings held before the Hearings Officer. The Hearings Officer determined that Cascade Pumice met all the criteria of the ordinance and approved the Site Plan with substantial conditions. Cascade Pumice was prepared to meet all of the conditions even though they were very expensive. Sharon stated that Cascade Pumice was here to ask the Board of County Commissioners to affirm the Hearings Officers decision and uphold the determination that they have met the criteria. Sharon Smith reported additional information had been provided as requested by the Hearings Officer, such as: 1) a DOGAMI reclamation plan; 2) proof of availability of Avion Water in the non -irrigation season; 3) site watering plan; 4) proof of adequacy of road dust suppression; and 5) an additional plan for screening Tumalo Reservoir Road which included the planting of 90 trees. Sharon Smith reported these sites were zoned surface mining. The zoning designation was not appealed by anyone. She felt there was no legal ground to challenge the zoning of these sites. She felt Cascade Pumice has met all the criteria and that the Hearings Officer's decision should be upheld. Sharon Smith reviewed four legal issues raised by the appellant. The first issue was DEQ air quality. She reported that Cascade Pumice has an Air Contaminate Discharge Permit. Commissioner Throop asked if this permit was for the new area that would be mined or for the entire site. Sharon Smith stated she did not know the answer to that question, but she would find out. Sharon Smith reported there were two issues raised in the appellants materials regarding setbacks. One issue was related to the berms. She stated that berms can be within the setback portion as they are not a structure and are not subject to the setback requirements. She stated that historically the setbacks have been from the residence itself. MINUTES PAGE 2 APRIL 20, 1994 0137-1589 Sharon Smith stated that screening is an outright permitted use under 15.52.040 C. The screener separates out large pieces of pumice from the rest of it. Sharon Smith stated the mining operation is subject to the Mining Safety Health Administration (MSHA), which is a federal agency. Safety inspections are required by law to be done every six months. MSHA evaluates whether the mining operation is meeting Federal Mining Safety Standards. Dugan Pearsall, General Manager of Cascade Pumice, testified in support. He showed a video tape of the screener and other pieces of equipment in operation. Dugan Pearsall testified that the Manager of Cascade Pumice in 1989 stated that Site 355 had approximately 1,000,000 cubic yards and they would be done in 4 to 5 years. Site 356 had approximately 500,000 cubic yards and they would be done within a year. On Site 357 they estimated one more year to mine. Dugan felt the previous manager made these estimates based on his experience in the mining business and the equipment that was available to him at that time. He stated that at the end of 1989 Cascade Pumice acquired equipment that enabled them to mine the resource that was previously unavailable to them. The new equipment also enabled them to catch up on the reclamation of Sites 356 and 357. Dugan Pearsall reported that in June, 1993, Deschutes County informed Cascade Pumice that they needed a new site plan for Sites #355 and #356. The resources in Sites #355 are approximately 1 million cubic yards and Site #356 are about 500,00 cubic yards. He stated that he agreed with the statement of the previous manager of Cascade Pumice when he estimated 5 years to mine Site #355. He disagreed with the estimated time needed to mine Site #356. He felt that in order for 500,000 cubic yards to be removed from Site #356, it would take 2 1/2 to 3 years. He felt that it would take about 8 years of exclusive mining on Sites #355 and #356 to remove the resource based on 200,000 cubic yards annually. Kerrie Standlee of Daily, Standlee & Associates, a registered acoustical engineer, stated that he had been involved in acoustical engineering for 19 years. He reported that his company was contacted by Cascade Pumice to assist them in developing a mining plan which would address the DEQ written noise regulations. They visited the site and observed the procedures used in the existing mining operation. In developing the analysis they used a computer model called "noise calc" to monitor the noise levels at the site. They monitored the sound from the scraper, screening equipment, dozer, and considered the use of all of the equipment that they might want to use. To meet the DEQ regulations they determined that it would be best for Cascade Pumice to use the scraper or the small dozer as the large dozer was too noisy. MINUTES PAGE 3 APRIL 20, 1994 0137-1590 Mr. Standlee reported they looked at the worst case noise conditions for each residence that they analyzed. He stated that they do not normally analyze all residences within a certain distance of a site. They look at the residences that have the most potential for being impacted or where the levels have the most potential to exceed the DEQ regulations. They would take into account the topography, the location of the residence, and if there are any natural barriers between the residence and the site. In developing the analysis they looked at the worst case condition for each residence that they analyzed. In order to do that they located the sources for a particular residence at the location at which the distance was the shortest distance or in which the sound propagation would be maximum to that location. For each residence they took only one location and addressed that residence from that location for the sources. The location that was selected was the one which they found produced the highest noise levels at that residence. For the next residence they took another location for the sources because the sound reduces with distance from the source. They looked at the residences and where the sources would be to produce the maximum levels for that residence. Mr. Standlee stated that if the screening equipment was down in the trench, it will never be heard above the sound of the front end loader. The reason for this was because the screening equipment was about half as loud as the front end loader. Mr. Standlee addressed the back-up beepers on the equipment. He stated there was mitigation for those pieces of equipment. One means of mitigation was a "smart alarm" which cause the sound level of the beeper to be determined by the ambient sound level in the area where the equipment was working. The requirement from the mining regulation people was that the level of the beeper has to be audible above the equipment noise. Mr. Standlee reported that the noise from the watering truck was not included in their analysis. He stated that the noise from that truck would be no greater than that from the scraper. If the scraper and the watering truck were operating simultaneously and in close proximity, the noise level would be higher. The mining operation can still meet the DEQ regulations because mitigation can be applied to both pieces of equipment. Dave Bateman, a surveyor with David Evans & Associates, testified in support of this application. He stated there was screening created by the berms. Sharon Smith, attorney for the applicant, stated the ordinance requires that supplied screening be used. Supplied screening can include berms, earthen berms, and vegetative screening. The vegetative screening height was 6 feet. If the supplied screening does not work due to topography, there would be no additional requirement. There was one site where the use of supplied MINUTES PAGE 4 APRIL 20, 1994 0137-1591 screening does not completely screen the operation. She stated Cascade Pumice could plant some additional vegetative screening on top of the berm or closer to the setback line. Bruce White asked if Sharon Smith felt that Cascade Pumice met the standard without the additional vegetative screening. Sharon felt they met the standard without it, because due to topography the mining operation could not be completely screened. Ed Fitch, representing the appellants, asked Kerrie Standlee if the equipment was on site when the noise study was done. Mr. Standlee stated he had Cascade Pumice run the equipment on Site #357 and he recorded the sound. He then took the tape recording back to his office to analyze. Mr. Fitch asked if there were any tests done on Site #356. Mr. Standlee said no. Mr. Fitch asked if any of the tests included all of the equipment operating all at once. Mr. Standlee said no. Mr. Fitch asked if any of the tests included noise levels from both of the sites operating at the same time. Mr. Standlee stated that the tests took in the possibility of operations on both sites. Mr. Fitch asked if you were at one of the residences that could hear Site #357, would the noise from Site #356 be in addition to that. Mr. Standlee stated that the noise from Site #356 would be louder than what would be coming from Site #357. Mr. Fitch asked what the noise level would be from both operations at once. Mr. Standlee stated only the noise from #356. He stated you would not see an increase in the sound level even though you might be able to detect a specific frequency of sound from another direction, but it would not be affecting the overall level of sound. Mr. Fitch asked how Mr. Standlee would know that without testing. Mr. Standlee stated he would be able to tell from the frequency analysis. He stated that when an analysis was done, they go back and analyze that sound for frequency content and the octave bands from 31.5 hertz to 8000 hertz are measured. Then by using that data they predict the levels radiating from the source to the residence. He stated that hearing something and having it affect the level are two different things. He stated he analyzed the scraper, screening equipment, and the front end loader all operating simultaneously. Sharon Smith asked Kerrie Standlee if the fact that the sound was measured on #357 (rather than #356) would flaw the analysis. Kerrie Standlee stated no. He reported that if you take a source and put it in any position, you can predict the sound radiating from that source to the different residences and take into account the topography at that site and all of the effects that you would have on sound, and it would not change its radiating characteristics whether it is on Site #357 or #356. Sharon Smith stated that she knew that he had measured each piece of equipment individually but asked if he had considered what would happen if they were all operating at once. Mr. Smith said yes. He stated that they analyzed it assuming three pieces of equipment were operating simultaneously. Sharon Smith asked if the sound of the MINUTES PAGE 5 APRIL 20, 1994 013'7®1592 watering truck was added, would Cascade Pumice be able to meet the DEQ requirements. Mr. Standlee said yes. Sharon Smith asked Kerrie Smith what would be done in the follow up study. Mr. Smith stated that in a follow up study they set up the monitors at the residences and let them run. Every hour the equipment calculates internally what the levels were during 50% of the hour, 10% of the hour and 1% of the hour. The numbers are then compared with the DEQ regulations. Ed Fitch stated the presentation by the appellants would cover the mining plan, the amount of the overburden on the property, the amount of the top soil, sources of dust, the impact of that dust on the surrounding area, the applicants plan to suppress that dust, address the proposal of winter operations, the deficiencies that are in the plan, the setbacks from the residential uses, the location of the berms, the storage of the equipment, the noise, and the monitoring problems that are anticipated. Ed Fitch stated that the information that had been given by the applicant had been very confusing and, in his opinion, misleading. He felt there was no fair and open analysis of this application. Ed Fitch stated the information he had received on the amount of overburden on this site had been very conflicting. He stated that in 1988 Chuck Clark had indicated that they were finishing up the mining at that time because the depth of the overburden in the other areas was prohibitive. In 1993 when this process started, the applicant submitted a number of burden of proof statements. In the supplemental burden of proof statement, the overburden was described as anywhere from 4 feet to 20 feet. At about the same time that information was submitted, Dugan Pearsall indicated in an interview on television that the total pit depth on this site was between 20 feet and 40 feet, which would include the top soil, the overburden and the pumice. At the hearing on January 6, 1994, the testimony was that the overburden could range anywhere from 5 feet to 60 feet. In the report that was submitted a few days ago, the overburden was described as somewhere between 10 feet and 30 feet. Ed Fitch felt it was hard to believe that a more thorough analysis had not been done as to what was under the surface in this area, how deep the pumice was, and what it would cost to get it out. Ed Fitch stated it was still unclear as to how much overburden was on this site. Ed Fitch stated that in the DOGAMI report in 1982, Cascade Pumice indicated that the topsoil was somewhere between 6 and 12 inches. In the burden of proof that was stated as the same amount. In the appeal, the amount of top soil was stated as being 12 inches. In the reclamation plan filed with DOGAMI recently it was described as 12 to 18 inches. He stated there was a big difference between 12 to 18 inches of top soil. He stated there was nothing in the record that states the amount of top soil, but there was a lot of conflicting information. MINUTES PAGE 6 APRIL 20, 1994 0137-1593 Warren Rehn, a professional geologist, testified in opposition of this appeal. He used an overhead projector to review information on the mining site which was included in the notebooks submitted for evidence. He stated the applicant did not submit a topographic map nor a cross section of the site. He felt the dust from the Tumalo Tuft could not be adequately controlled. Patty Rehn, a geologist, testified in opposition of this appeal. She provided samples of Tumalo Tuft which is composed of fine ash. She stated that pumice does not make as much dust as the Tumalo Tuft. Ed Fitch stated the applicant had described that the overburden was the source of the dust on the project site. He stated the neighbors felt there were multiple sources for the dust. He stated the mining plan shows that there was a proposal to construct a berm along the north side and the southeast side of the property. These berms will be made up of the ashen overburden and they would be a significant source of dust. Additional overburden will be stock piled which would be a second source of dust. The pumice that is exposed would be a source of dust. The overburden that is exposed on the side of the pit would be a source of dust. The screener operation, the trucks, the road, the loading area for the trucks, the reclaimed area, and the actual mining area would be sources of dust. He felt that the dust that would be generate would have a number of impacts. The dust will effect their livability and their health, and this impact should not be minimized. Ed Fitch discussed how the applicant proposed to suppress the dust. He stated there was no documentation by the applicant regarding how water would be needed. He reported Cascade Pumice states that they plan to water but it was not tied to a need. Tom Hall, a water quality specialist at DEQ, testified in opposition to the appeal. He stated the main point was that Cascade Pumice has not adequately planned for their irrigation watering and water supply needs. He understood that Cascade Pumice had the burden of proving that they can do what they say they would do in regard to controlling dust. He felt this had not been done. He stated there were procedures for planning an irrigation system to meet both the irrigation requirements of newly planted as well as established vegetation. He reported these same procedures could be adapted to determine water needs for dust control on unvegetated surfaces. Dr. Dan Harrison, Veterinarian, shared a video tape with the Board. The video tape showed the mining site from his property which included noise from equipment running and showed dust blowing. His biggest concerns was that the dust goes beyond being a nuisance and poses a health hazard. He stated he felt the dust had a high percentage of particulate matter and the people in this MINUTES PAGE 7 APRIL 20, 1994 0137-1594 neighborhood were breathing it almost daily. He felt this was a health risk especially to the elderly and children. Dr. Harrison reported that Cascade Pumice has said they will apply up to 72,000 gallons of water per day which equals 500,000 gallons per week to put on the dirt. He felt this was not a wise use of our water resource. Tony Jermaczonak testified in opposition of this appeal. He stated his property was a 1/4 mile north of mining Site 356. He showed a video tape of the dust. Pat Tellin testified in opposition to this appeal. She stated her residence was the closest one to the mining property. The setback from her front door was 290 feet. Faith Hall testified in opposition to the appeal. She stated that Cascade Pumice had misrepresented themselves over the years. Ed Fitch stated the ESEE analysis prohibited operations by Cascade Pumice from October 31st to March 31st. The Hearings Officer allowed mining through those dates if a water plan was acceptable. He felt there should not be any winter operations because the applicant has not shown an adequate watering plan. Ed Fitch addressed setbacks. The stated the applicant claimed that setbacks had to be 250 feet from the residential structure. Mr. Fitch stated that the code says all mining activity must be at least 250 feet from a noise sensitive use or structure. He pointed out that people use their yards and felt the mining activity should be at least 250 feet from the yards. Mr. Fitch reported that Cascade Pumice felt that the berms could be between the setback line and the property line. He stated the code provides that any mining activity or use must 250 feet away. He felt that berms were a mining activity because that is their purpose. Mr. Fitch stated the storage of equipment could not stored within a 1/4 mile of a dust sensitive use. Cascade Pumice was proposing to have that equipment within 1/4 of a mile. He felt that if Cascade Pumice was to do that, they must prove that on any other site they cannot locate this screener. Ed Fitch stated the Hearings Officer required that if there were high wind conditions, the operations must be curtailed. Ed wondered who determined when operations should be curtailed. He felt it was almost impossible to monitor and there was no plan to do so. MINUTES PAGE 8 APRIL 20, 1994 U1 o" -1595 Ed Fitch felt the neighbors had been given misleading information by the applicant time and time again. He felt the Board had the right to revoke the zoning based on the information supplied. Sharon Smith, attorney for the applicant, requested an additional hearing in order to present rebuttal testimony. She stated that rebuttal testimony would take 1 to 1 1/2 hours. Commissioner Throop stated he had several questions. He asked staff to explain the basis for the requirement of new site plans. Dave Leslie stated there was a time period when the County became aware of reentry into the site. At that time the County determined that the pre-existing site plan had run its course and was no longer valid to use to reenter the subject property. Sharon Smith stated that Cascade Pumice believed that they had the authority to go in and mine Site #356 and so they started. They were then told that they needed to apply for a site plan. They submitted justification as to why they felt they did not need a site plan. It was their opinion that the entire mining site operation of Cascade Pumice was covered by a valid DOGAMI permit. She felt that permit included sites #355, #356, and #357. Commissioner Throop asked if Cascade Pumice had a valid site plan for mining those sites. Sharon Smith stated it was her belief that they did not need an additional site plan because they had a valid DOGAMI permit. Commissioner Throop asked again if they had a valid County site plan for sites #355 and #356. Sharon Smith stated the County told them they did not have a valid site plan. She stated they were before the Board for that reason. Dave Leslie reported there was some written correspondence that addressed that issue. The five year time limitation that was put on this area when it was first zones surface mining in 1982. Shortly after that, the site plan for this application was approved. One of the conditions for approval was that all conditions for that zone change became site plan conditions. The five year limitation transferred to the approved site plan in 1982. In reviewing this issue in 1993, the site plan became invalid in 1987. There was discussion not to require a new site plan in approximately 1990. Bruce White reported that in the written ESEE there was no limitation and that was not appealed. He felt the question was whether the previous written decision reflected the Board's actual decision. Commissioner Throop asked if the berms could be inside the setbacks or are they part of the mining operation that requires them to be outside the setbacks. Dave Leslie reported that their preliminary interpretation was the berms were not structures and they can exist within the setbacks. MINUTES PAGE 9 APRIL 20, 1994 01007-1526 Commissioner Throop asked if screening was a mining process. Dave Leslie reported that it had previously been determined that screening was processing and it was prohibited at the Rose Pit site. Commissioner Throop asked if the ESEE specifically state that there would be a winter closure requirement. Dave Leslie reported the closure was included in the ESEE findings because Oregon Department of Fish & Wildlife considered this area to be in the deer winter range. Commissioner Schlangen stated there will be a continued public hearing for rebuttal testimony on May 18, 1994, at 5:30 p.m. All written testimony will be accepted but the hearing will be for oral rebuttal testimony only. DATED this :QDJj:::► day of 1994, by the Board of Commissioners of Deschutes County, Oregon. ATT T: 7 Recording Secretary Nancy Po* S/Jhlangen, Chair MIVw!�L i Throop, Commissioner L ��V Barry H. Slaughter, Commissioner MINUTES PAGE 10 APRIL 20, 1994