1995-01005-Minutes for Meeting May 31,1994 Recorded 12/1/199495~01005 01
MINUTES ` '}
Public Hearing
Cascade Pumice 94 GFC - ! "i 2; 12
DESCHUTES COUNTY BOARD OF COMMISSIONERS''''r 0
May 31, 1994
Chair Schlangen called the meeting to order at 5:30 p.m.
Commissioners in attendance were Nancy Pope Schlangen, Tom Throop,
and Barry H. Slaughter. Others present were Dave Leslie, Planner;
Bruce White, Legal Counsel; Anita Mutchie, Recording Secretary.
APPEAL BY CASCADE PUMICE
Dave Leslie came forward to introduce three items into the record;
the transcript of the Board of County Commissioners' decision for
the two surface mining sites, the hearing and discussion which was
held October 26, 1989; a letter from Frank Snitzer of the
Department of Geology and Mineral Industries dated May 26, 1994;
and an investigation of dust effects of the proposed Cascade Pumice
site. He explained that the Frank Snitzer letter basically stated
that the pumice did not generally create off-site dust impact due
to the dominant particle size of the pumice as well as its moisture
content. Mr. Snitzer's letter also clarified a questioned
telephone conversation; he indicated he did not express "concern
over Cascade Pumice's lack of approved plan to relocate the ditch"
but had simply stated in inspection reports that the extraction
boundary plan would need to be modified for the relocation of the
ditch. Also discussed in the Snitzer letter was soil cover depth
and that there was no exact standard as to whether it was six or 12
inches. He indicated that Cascade Pumice had never been required
to do benching by the federal agency, the Mine Safety Health
Administration, and that the reclamation plan submitted to DOGAMI
had met their requirements and standards.
Edward Fitch, attorney, P.O. Box 457, Redmond, Oregon, came forward
on behalf of the neighbors and appellants. He submitted for the
record a letter from Pat Tellin dated May 24, 1994, together with
a plot plan of their property. The purpose of the letter and maps
concerned setbacks. He felt the issue should be the residential
use of the property. He said the ESEE analysis and decision on the
site identified the residential use as a dust sensitive use and
that the ESEE analysis was part of the comprehensive plan. He said
the uses from the residential area was particularly important as
the dust had much more effect when the people were outside. He
said the setback should be measured from that use.
Regarding details of the operational plan, he stated that he did
not want to protest over every minute detail but wanted to
illustrate some of the major differences with the applicant. The
first was the setback issue. They believed that the applicant had
failed to prove that the screener could not be located more than
1/4 mile from the residential use. There were to ations on site
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357 that could be utilized. If a mining application was approved,
they could begin on the south side and leave the screener there.
He said there was no substantial evidence which would support a
conclusion that the only place for the screener was within the
quarter mile.
Mr. Fitch stated the watering plans only discussed what would be
done in a wet winter not a dry winter. He also said he strongly
disagreed that the computer model used by Mr. Snyder was valid. He
said one of the main assumptions by Mr. Snyder was based upon
compacted surface material and not loose material. He said Tom
Paul from DEQ did review Mr. Snyder's report and indicated this was
its major flaw. Mr. Fitch presented Mr. Paul's report as an
additional exhibit.
Mr. Fitch also disagreed on the conclusions of the applicant based
upon the drilling information that was submitted at the last
hearing. He said the most significant difference was that the
analysis was limited to whether or not their operation would comply
with DEQ standards; he did not believe that was the real issue in
this case.
Warren and Patty Rehn, 19005 Pinehurst Road, Bend, Oregon, then
came forward and gave a response regarding the operational plan,
geological information, and air quality standard issues.
Patty Rehn showed two cross-section maps. She stated the applicant
had proposed to remove the top soil and pumice from up to 25 feet.
With the maps, they wanted to show this was not the case for the
area. She also stated Cascade Pumice had created a confusing issue
in its supplemental burden of proof. In the burden of proof it was
stated the maximum depth of the pumice resource was 20-25 feet.
Mrs. Rehn felt the word "depth" should really have been "thickness"
of the pumice resource. On the cross-section, she indicated that
the depth of the pumice resource was 89-90 feet. She said the
thickness of the pumice was 11-24 feet. She stated that a very
primitive drilling technique had been used, an auguring technique,
which was not good enough to get through minimal gravel layers.
She said there was no evidence that pumice even existed in the N.W.
part and that 6-7 holes were drilled without encountering gravel.
She said mining was an exact science and that it was important to
know the depth of the pumice layers.
Mrs. Rehn stated Cascade Pumice could not mine to the depths they
were contemplating with the mining plan they have. She said
Cascade Pumice was not using a no bench mine plan. She then
indicated slopes at the top of the map and said they were making up
for the second bench and this was not being counted as part of the
disturbed area by Mr. Snyder for his dust control model. She said
Cascade Pumice was only talking about the bottom portion where
trucks were driven and not the total area that would be disturbed.
MINUTES PAGE 2 MAY 31, 1994
�13i 161c7
Commissioner Throop questioned Mrs. Rehn's statement regarding the
area not being feasible to mine at the depths described. He asked
the consequences of that conclusion. Patty Rehn said that the
initial statement indicated the cat and belly scraper would be used
to mine but they had to purchase larger equipment to mine at 70
feet. She referred to the mine tour where larger sloped areas at
the top of the 200 x 400 foot pits were seen. She said it was
important to realize these were dust producing areas but that they
had been assumed to be not part of the problem. She said instead
of benching, it was sloped back into the large rubble piles.
Commissioner Throop clarified Mrs. Rehn's statement that in her
assessment it would be necessary to slope the sides and that
vertical sides would not be possible in those slots. She also felt
that a mining engineer should be employed by Cascade Pumice so that
they would know exactly how the mining would be done.
Bruce White questioned as to whose standards the mine was
classified as unsafe. Patty Rehn stated the reason that MSHA, Mine
Health Safety Administration, felt it was safe was because of the
way the upper benches were sloped back. Mrs. Rehn said MSHA
regulations indicated that it should not be over 5 feet of the
maximum reach of the equipment and that is why a 20 foot bench was
usually recommended. Bruce White said it was necessary to assume
Cascade Pumice was in compliance with MSHA and the only point was
to take on their assumptions for the dust control. She agreed that
this was correct and that if they did what they said they were
going to do, they would not be in compliance with MSHA or they
would not be in compliance with their dust. She felt it was also
a serious safety risk since it was so close to Tumalo Reservoir
Road. She said the health and safety of the general population
should be protected.
Warren Rehn, geologist, 19005 Pinehurst Road, Bend, Oregon, also
presented rebuttal to the applicant's verbal and written testimony.
He said that in addition to the written record Mrs. Rehn had given,
he would like to refer to Bruce Snyder's testimony of two weeks
previous. He disagreed with the amount of dust Mr. Snyder's model
showed would be reproduced and also disagreed with Mr. Snyder's
opinion that it would be well within the DEQ limits for dust. He
said the assumptions used by Mr. Snyder were contradicted by the
testimony two weeks ago of Cascade Pumice. He seriously questioned
the results of Mr. Snyder's model. He felt the most serious
assumption by Mr. Snyder was that there was absolutely no dust
produced in his model from the sides of the mining slots and from
the waste piles of the overburden material. From their engineering
tests, the material was composed of fine material and over 25%
would pass through 200 mesh screens. Therefore, it could be picked
up and carried by the wind. He said it was a good source of
suspended particulate material and that was the TSP of the DEQ
regulations. He said this was the kind of dust causing the most
concern since it stayed in the air and became a respiratory problem
and irritant.
MINUTES PAGE 3 MAY 31, 1994
0137-1611
He said Mr. Snyder had indicated many times that there would be no
dust from the walls, from the cuts, within hours after the cuts
were open. He then referred to Mr. Pearsall's testimony of the
same time in which he stated that as more overburden was opened to
access deeper pumice, the dust problem would be worse and that the
walls of the pit created dust.
Mr. Rehn quoted the written submittal burden of proof on appeal by
the applicant, "In order to mine more deeply, it is necessary to
have a greater area exposed. This has caused in the past greater
dust creation." He stated that the applicant was clearly
indicating that the more overburden exposed, the more dust
produced.
Mr. Rehn also pointed out that Mr. Snyder did not adequately deal
with the dust issue and his model nearly failed to pass DEQ
regulations. He said standards for "new and modified sources" are
19 micrograms for cubic meter TSP as an annual geometric mean and
that there were two sights in the model that would receive greater
than that standard even without considering the overburden as a
source of dust. The next threshold would be the 60 micrograms for
cubic meter for TSP. He felt the dust production would actually
exceed the 60 micrograms in many areas around the mine site. He
did not feel watering would be effective in controlling the dust
and said he had driven by the site this morning, while taking his
son to school, and there was a tower of dust approx. 200 feet in
the air and it was raining.
The other dust suppression technique that he discussed was a soil
seal. He said this leaves a gummy crust on the dirt and the walls.
He said miners do not put this type on active faces as it would
have to be scraped off their buckets every day. Also he said it
would not be realistic to do that process while opening and closing
the cuts or moving the dirt piles and that water was incapable of
suppressing the dust.
For these reasons, he felt there was not enough information given
to the Commissioners on how to control the dust. In summary he
showed a map of the drill sites that Cascade Pumice recently drill
tested. He said the entire northwest corner was unknown and pumice
was too deep with at least a 30 foot overburden which would cause
a maximum cut face of 55 feet. He said the volume would produce
too much dust to be in compliance. He showed a small area on the
map where he said the pumice was at a reasonable depth and asked
that Cascade Pumice be kept away from the outskirts where he felt
it was the worst problem and asked that they be limited to a
reasonable maximum mining depth such as 30 feet. He indicated that
the Commissioners had been given his written record of rebuttal.
Dr. Daniel Harrison, 64625 Mock Road, Bend, Oregon, came forward.
He said that in his previous testimony it was not his intended
meaning to compare living next to the pumice pit like living next
MINUTES PAGE 4 MAY 31, 1994
to Mt. St. Helens. He stated he had submitted letters for the
record in which he had discussed the opportunity Mt. St. Helens had
provided researchers to directly examine volcanic ash and that he
had also mentioned a number of instances where this ash had
contained toxic materials. He wanted to clarify the point he had
make in his previous testimony that pumice dust volcanic ash does
contain toxic materials that can be considered a health risk to the
public at large. It was not his intent to make analogy or
comparison to the size or volume of Mt. St. Helens to the pumice
pit. He further clarified that he was strictly trying to make a
health link. He stated a pumice pit should be considered in the
light that the dust is potentially toxic and does have health
effects. He also noted that the prevailing winds were more towards
the Bend area to the east as well as to the surrounding
neighborhood. He said that winds are not actually blown but are
pulled along and that the particulants become part of the Bend
community's air quality. He said one month ago the American Lung
Association released a study stating that the health risks
associated with particulate matter were greater than previously
thought and that the findings of the study linked an increase in
illness and even death to the levels of these particulates which
were considerably below what the EPA considered safe.
He said in October the American Lung Association filed a lawsuit
against the EPA to challenge the standards that the EPA now
considers safe. They want these standards lowered two thirds from
150 grams per day to 55 grams per day. In that event, it would
render this operation, as well as Deschutes County, out of
compliance. He requested that the Board bear in mind that the
decision made based on current standards might in the very near
future not be acceptable.
Fay Paul, 64645 Mock Road, Bend, Oregon addressed the issue of the
ESEE analysis done in 1989. She said the Environmental Social
Economic and Energy analysis needed to be redone. She said it now
had little relation to the actual facts brought out at the hearings
and what existed at the site. She referred to Site
Characteristics, Site 355, and read "level pasture land which not
in the past has been used for mining." She then stated that the
land in fact was not level, was not pasture land as it had
sagebrush and juniper trees, and that it had been used for mining.
She said Site 356 did not slope upward to the north but upward to
the south and had a valley down the middle. She used these as
examples of incorrect information in the ESEE analysis.
She said the reference to limitations to be put on mining
activities was incorrect as there was no follow-up limitations that
were specific about that. She said that under "Social
Consequences" it stated the effect would not be great and that
under "Environmental Consequences" it stated protection of the
natural resources would preclude mining at the site. Ms. Fay
stated there were adverse impacts and that there were no
MINUTES PAGE 5 MAY 31, 1994
0137-1.613
environmental controls on the mining operation. She read from
"Program to Meet the Goal" where it stated the site on top of the
plateau would be zoned for surface mining. She said that was an
error and was inadvertently left in the ESEE analysis. She said
that if things were inadvertently left in the analysis, she also
felt that many things were inadvertently left out and what was
missing was the time limit discussed at the 1989 hearing. She said
that limit was relied upon "by all of us." She said the ESEE
analysis repeatedly spoke of additional environmental protections
and limitations on the mining with the most significant being the
time limit and the original limit of 60 acres to be mined. She
said this was never followed through and that human health issues
had never been addressed. She felt that if this had been regarded
as a long-term mining operation and the analysis had been site
specific and thoroughly done, the issues would have resulted in a
different decision in 1989 and 1990.
Suzanna Harrison, 64625 Mock Road, Bend, Oregon, said she had made
a telephone call to the state Department of Geology approximately
two years ago when she had noted mining at that site. She said she
had pursued the process since the decision by the hearings officer
so that she could come before the Board of County Commissioners to
ask the Board a question. She asked, "Were we wrong in 1989; were
we wrong the neighbors of Tumalo, were we wrong the then
representatives of Cascade Pumice Company; was the Board of
Commissioners wrong to believe in the agreement that was arrived at
in 1989?" She stated she did not attend the hearings but had
listened to the transcripts and transcribed them. She said the
initial problem was with the 1989 decision.
Al Tellin, 64600 Horseman Lane, Bend, Oregon. He said his property
was closest to the proposed site. He said the applicant had failed
to show feeling, sensitivity, or compassion for the surrounding
neighborhood. He felt this indicated that financial gain was more
important than moral integrity to Cascade Pumice. He said there
were countless homes and properties for sale along Tumalo Reservoir
Road because of this attitude and that the owners were tired of the
dust, noise, and traffic. He said no regard was given in the ESEE
analysis to the rights of the adjoining property owners many who
have resided there many years before any surface mining zone was
established. He said he and his wife felt living under these
proposed adverse conditions would amount to a life sentence.
Ed Fitch summarized by stating the reason for he and his client's
being present was to discover the truth and to act upon that truth.
He asked if the computer model's indication that there would be no
effects from the dust was the truth. He asked if the experts
statements that violation of air standards could not be proved as
the source of dust could not be established was the truth. He said
in this case the truth went far beyond analysis of whether the pit
complied with DEQ standards. He said in 1982 Greystone applied for
surface mining of 50 acres; the signed application stated that if
MINUTES PAGE 6 MAY 31, 1994
0137-1614
4
any false information was given, the zoning application could be
revoked. He referred to the hearing and the documentation to the
hearings officer: (#6, page 2, August, 1982) Cascade Pumice
advised that they had just signed a new lease with Tumalo
Irrigation which had allowed them only five years to mine the
property and that all mining had to be completed before the end of
that five years; (#5, page 2) the original burden of proof
statement indicated that Cascade Pumice's mining was nearly
exhausted at site #357; (section 6, page 4) growth will probably
increase in area and mining should be done now to reduce the impact
on residences --applicant should complete mining once and for all in
that area; (#8, letter from Tumalo Irrigation) said districts
understanding that section 35 (site 355/356) would be mined
concurrently with the remainder of material in section 366 and that
within five years resources would be depleted and the land
reclaimed for another use. He said this was how the mine first
started on site 356. He then referred to section 9, testimony
before the hearings officer, Meyer Abadovich, stating that site 357
was just about gone. Mr. Fitch said that in the present record the
facts show that site 357 has been mined actively for the past 12
years and was not played out.
He said that in the late summer of 1982, Meyer Abadovich approved
the zoning decision that authorized five years on the site for
surface mining, established 600 foot setbacks, and called for
annual review by the planning division. He said In 1989 Cascade
Pumice was still mining but their site plan and zoning designation
had expired by reason of the zoning decision itself. The Board
then conducted the ESEE analysis for the property. He said the
original hearing for the application was held August 8, 1989. He
said Chuck Clark had repeatedly advised the Board that they would
only be there for another year, possibly more or less. He said
there also were many opponents at that hearing.
He then referred to a transcript of the meeting between the
Commissioners on October 26, 1989. It talked about a discussion
between Commissioners Maudlin, Throop, and Prante and that
Commissioner Maudlin said they would be out in a year. Mr. Fitch
then said that Commissioner Throop made a "reluctant Aye" and then
asked for further clarification of 355 and 356 and if it were a
year on 356 and another year on 355. He said Commissioner Prante
also made a "reluctant Aye." Mr. Fitch said this record spoke to
him that this decision to go with a zoning decision was based upon
a representation that they would be out in a year.
Bruce White asked if the transcript Mr. Fitch was reading from was
in the materials in the notebook. Mr. Fitch said yes, section 16.
Mr. Fitch then referred to 1993 and said the only reason this came
before the county was from a neighbor complaint that there was
mining without a site plan permit. He said between 1989 and 1994
nothing appeared to be in the record that showed any change in the
MINUTES PAGE 7 MAY 31, 1994
01"7--1
manner of dust suppression on site 357. He said only after Ut��
first appeal hearing before the Board of Commissioners when a video
was given to the Board showing a huge dust plume was there any
active dust suppression.
Mr. Fitch said that at this present time Cascade Pumice indicated
that on a voluntary basis they would do a better job. Mr. Fitch
asked if this promise could be trusted especially since Cascade
Pumice now indicates, five years later, that they cannot have a
time limit, they intend to mine all the pumice from the pit that
they can and that there will be dust and noise. He pointed out
that Tumalo Irrigation had a strong interest in this case and that
twelve years ago they gave their word that Cascade Pumice would be
on their site and out in five years. He questioned if money was
the ultimate value. He stated that organizations must abide by
their word. He said the Board had two methods in which to correct
a gross injustice.
Deny the permit because it failed to comply with the ESEE. He
asked what was intended by the ESEE decision and said it was to
have a one or two year limitation and to have an additional
environmental controls to protect the residents. Even though those
were the intentions they were not in it. He said the legislative
history would be considered to omit the top of the plateau language
and would need to include in the legislative history all the other
factors ... in other words to go outside, it would be necessary to
rewrite the ESEE decision. Otherwise he felt it must be denied
because it was part of the comprehensive plan and the site plan did
not comply with it. He felt there was no choice but to deny it.
Mr. Fitch said the second way was regarding the section in the
zoning code, 18.140, where a permit can be revoked or modified
granted under title 18 if there was misinformation or
misrepresentation made by the applicant at a public hearing. He
said he wanted to emphasize the words "a public hearing." He said
Bruce White had correctly pointed out that the ESEE decision and
the zoning designations were not done under Title 18. He said this
site plan should be modified or revoked, at a public hearing, based
upon misinformation and misrepresentation by the applicant. He
said the testimony from the past are exceeding relevant as they
provide the building block of the current site plan.
He asked where the risk would be in re -reviewing the ESEE analysis.
He felt if either of these routes were taken, it might be appealed
to LUBA but that risk would keep alive the possibility of
correcting a faulty decision; approval of a site plan, just to
comply with DEQ standards, does not. He felt there was substantial
evidence to support either conclusion. He said what would now be
proposed would be 8 to 15 years of noise, dust, and truck traffic.
Bruce White questioned a statement Mr. Fitch had made regarding how
to define what the area of residential use was and where do we draw
MINUTES PAGE 8 MAY 31, 1994
�-1
the set backs from. He asked Mr. Fitch how he would define
defined the extent of the residential use and would that be the
same from property to property. He also asked what was in the
record to help establish that if it were different for each
dwelling unit. Mr. Fitch answered that the only site where it
really made any difference was the TellinIs. He referred to an old
medieval England term "curtalidge" and said it was the area around
home that a person utilizes for their residential use. Under
English common law this was strongly protected. He felt that this
common law meaning for residential use would be appropriate. He
said people use their yards and patios, and greenhouses as a
residential use and that it was important for dust protection. He
said the set back distance would be about 34 feet which was not
great but was important. He said at a point where the berms were
going to be placed a stone could have been thrown into the Tellin's
back yard. He said to have that mining activity so close was
extremely anguishing to them. He said he understood that standard
would also apply to other mining sites. He said he did not thing
sagebrush, livestock, and grazing areas were residential uses.
Bruce White asked how he arrived at the 34 feet. Mr. Fitch said it
was where the greenhouse was from the property line. Mr. White
then asked if someone had a tennis court, or horseshoe pit away
from the house and located near the property line if it would be
considered a residential use. Mr. Fitch said yes. Bruce asked if
a case-by-case factual analysis would be required of each property
to see how the property would be used by individuals. Mr. Fitch
said yes in this case because of the discussion of the dust
sensitive uses in the ESEE analysis. He said it also talked about
parks and that "you would have to do it from the perimeter of that
park not from a structure." He said the same theory would hold
true with residential use. He said some mining operations would be
so far removed, 1,000 feet or so, that it would not come into play
and that in this particular application only one property did.
Bruce asked if it would be possible in an individual case for the
use to take place in a part of the property well away from the
house. Mr. Fitch said he wanted the Board to see what the
neighbors would like them to consider; he then brought such a list
forward. He said to reach those conditions it would be necessary
to utilize 18.140 to modify that type of plan based upon the record
of misinformation and misrepresentation. He also indicated a map
on the back of the list that showed what the effect of the setbacks
would be. He asked that the Board remember the slide that Mr. Wren
had used to show where the pumice was that could be feasibly mined
and stated that the map he was showing the Board followed that
slide very closely.
Bruce White asked what the neighbors believed were the applicable
air standards. Mr. Fitch said that he talked with John Hector of
the DEQ last week. He then read, "the suspended particulant matter
of 340 31015 apply, the particulant fall out of 340 31045 applies."
He said he believed, as Warren Wren pointed out, that the standards
MINUTES PAGE 9 MAY 31, 1994
for a new use would apply ( 340 31010 ambient air quality standard.
He said John Hector was not sure whether that applied or not but
based on Mr. Fitch's conversation with Mr. Hector, it was unclear
if anyone at DEQ knew. He said DEQ was not crystal clear as to
what applied and did not apply. He said the other standard he felt
believed applied was in 340 (tape turned --to tape 2, side 1)
He said a way it could comply was if it were ordered by the
department and with a recommendation by John Hector, that if the
equipment would be utilized by 355 and 356, the applicant would
have to amend the air contaminate discharge permit to include the
equipment and include as conditions of the permits, the dust
control system would have been discussed in the hearings process
for example, the soil, materials put down on the road, the watering
plans need more detail. He said these were the kinds of things
that could be required by this Board of County Commissioners
through a modification or amendment of the air contaminant
discharge permit and that the standard could be utilized by the
department.
Bruce asked for clarification regarding the air contaminate
discharge permit. Mr. Fitch said the permit was for the crusher at
Tumalo Junction and the cinder crusher at the site 357. Bruce then
inquired about the modification of site plan and said at this point
there was nothing to revoke. He asked if that was a "fair
statement to say." Mr. Fitch referred to 18140.080 saying there
were five different subsections with the first (la) discussing
revoking or modifying permits granted under provision of the title,
he said b, c, and d did not apply. He said that a referred to the
hearings body holding a public hearing on any proposed revocation
after giving a written notice to the permittee, then rendering a
decision. He said there were two ways the Board could proceed. If
it was determined to modify the permit, notice could be given and
modification of the permit could be done as it was being granted.
Or notice could be given that it would be subject to modification
or revocation after being granted.
Bruce White questioned if there was a permit to modify or revoke.
He said all that was before the Board was an application. Mr.
Fitch agreed. Bruce then said the language was talking about a
process that dealt with a permit that was already granted. He
questioned how this fit into the context. Mr. Fitch said that if
a permit was issued and notice was given in conjunction with the
issuance of the permit saying that it would be revoked or modified
and stay the effected date of the permit until after the hearing.
He said the permit would be issued, the hearing would be
subsequent, the effective date of the permit could be stayed.
Bruce White asked if the predicate for staying the effective date
was "alleged misrepresentations that occurred in 1982." Mr. Fitch
also added 1989.
MINUTES PAGE 10 MAY 31, 1994
Dave Leslie asked questions of Mr. Fitch in regard to four
conditions. He asked about condition #5 regarding quarterly
monitoring and if the third party would pay for certain tests. Mr.
Fitch said he had "talked with Sharon about what it would cost to
bring Stanley or some other person back to monitor." He said she
indicated that she had attempted to obtain a quote from Kerrie
Stanley and other experts as to what that cost should be. He said
Cascade Pumice should fund the monitoring program. He said he had
talked with Mr. Stanley and that the cost would not be significant.
He said his recommendation would be similar to the Rose situation.
Dave Leslie said this was similar to the condition that existed to
the site plan approved by the hearings officer requiring a report
in 60 days and a follow up annual report.
Dave Leslie asked about item #10 regarding rules for use of water.
Mr. Fitch said there were only two acres of industrial water and
that they just wanted to make sure that irrigation water being
utilized on that property was "utilized in accordance with that."
He said Tumalo Irrigation had a vested interest in this process and
he wanted to make sure there was no inappropriate diversion of
water on the property. Dave clarified that the applicant would use
Avion water when necessary.
Dave Leslie asked about the screener not being used within a
quarter mile of any residential use when the slot was open. He
said a boundary was not outlined as to what was meant by Mr. Fitch
as residential use. Mr. Fitch said the screener could not be
utilized within a distance of a 1/4 mile (1,300 feet). Dave asked
about Condition #1 referring to the 600 foot property line setback
and asked if there was an internal inconsistency. Mr. Fitch said
yes.
Dave Leslie asked about "no trees to be removed" and said there was
an isolated tree or two within that valley. He wondered if that
was intended to reflect the trees in the corner. Dr. Harrison said
there was a significant number of old growth junipers in both the
N.W. section as well as the N.E. section of the parcel. He said
wildlife used the section. He said in the center of the valley
were a "couple of very large isolated single trees." He said they
were not specifically referring to those but to the trees along the
N.W. side and the N.E. side. He said there were no trees on the
southern border.
Dave Leslie stated he wanted to indicate on the record that the
Board did visit the site with representatives of the applicant and
the appellants and toured both sites. Bruce White added that there
were representatives of both the applicant and the neighbors during
the visit. He asked if there was any objection to that site visit
having occurred. Mr. Fitch said no. (The applicant at this time
also expressed no objection.)
MINUTES PAGE 11 MAY 31, 1994
01or' 7-f�
Chair Schlangen asked what would be the best way to proceed and if
the record should be left open if requested to do more rebuttal.
Bruce White stated at some point the Board needed to decide that it
was necessary to make a decision. Sharon Smith, for the applicant,
request to come forward. She stated this was the third hearing
before the Board plus a site visit. She said she had no intention
of presenting further oral rebuttal as it would be counter
productive to prolong the meeting further. She said she wanted to
keep the record open to respond in writing to some of the materials
given during the present hearing. After brief discussion she
determined that two weeks would be a minimum time.
Bruce White stated his only concern was where did it stop and asked
if there would be a never-ending rebuttal to rebuttal. Mr. Fitch
also agreed that it should be wrapped up and that if Sharon wanted
ten days it would be acceptable to him. Commissioner Throop stated
that the law said if requested the record should be open for seven
days and expect a submittal by that time. He said there was a
history of leaving the record open for seven days for written
submittal. It was agreed that seven days was sufficient.
Commissioner Throop commented that there had been approximately
eight hours of oral testimony and site visits and it was natural to
begin to draw conclusions. He said he had been involved in the
deliberations of 1989, remembered them clearly, and was beginning
to conclude that if the site was going to go forward the ESEE
process may need to be done again. He said the very premises that
the ESEEs were based on were no longer valid. He said the material
staff and opponents submitted, it was extremely clear that the
basis for the site plan approval was that the site was
characterized as a nearly exhausted site synonymous to the site
just to the east of Tumalo Rim which was primarily mined out, and
that they would be getting in, removing the material, and closing
the site. He said the current situation was a 180 degree
divergence from the basic premises. He said he was looking to
denial if there was not a process to go through the ESEE process
again.
Chair Schlangen felt Bruce White should be asked if that was
something that the Board could do. She questioned if the Board
needed to respond or if they could go back to an ESEE.
Bruce White stated there was an application present that needed to
be dealt with. He said he might need to look at this issue again
because of a theory brought forth by Mr. Fitch. His recommendation
was that in order to get to the ESEE, there must not be an
application in front of the Board.
Commissioner Throop said that had this been an opened -ended
application, these sites would not have been zoned surface mining.
Bruce White said the Board needed to decide how to get to the
decision and the time frame for making the decision --he suggested
MINUTES PAGE 12 MAY 31, 1994
setting a work session. Commissioner Throop recommended as a work
session date, Tuesday, June 7, or the following day and felt that
a decision could be made the week following the work session.
Chair Schlangen said the written record would be left open for
seven days which would be June 7 @ 4:30 p.m. and said the work
session could be determined at the Board of County Commissioners
meeting scheduled tomorrow, June 1, and that the parties would be
notified of the work session date.
Chair Schlangen then adjourned the meeting.
DATED this 2J ,D.17 day of , 1994, by the
Board of Commissioners of Deschutes C6u-xLty, Oregon.
'-k-mw -Acj�
Nancy Poel ch ngen, Chair
T m Throop, Commissioner
ATTEST:
Recording Secre ary Barry H. Slaughter, Commissioner
MINUTES PAGE 13 MAY 311, 1994