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2009-54-Minutes for Meeting January 21,2009 Recorded 2/11/2009DESCHUTES COUNTY OFFICIAL RECORDS CJ 2009'54 NANCY BLANKENSHIP, COUNTY CLERK COMMISSIONERS' JOURNAL ,,.1,.,,,,..,,.,.,,,..,.,.,, 02/11/2009 10;14;02 AM 2000-34 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.oriz MINUTES OF PUBLIC HEARING DESC14UTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, JANUARY 21, 2009 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Tammy Baney, Dennis R. Luke and Alan Unger. Also present were Paul Blikstad, Community Development Department; Laurie Craghead, Legal Counsel; Hillary Borrud of The Bulletin, several other representatives of the media and approximately twenty other citizens. The purpose of the meeting was to take testimony on an appeal of the Hearings Officer's decision on files CU-07-102, SP-07-46 (MA-08-3, M4-08-4, A-08-14 and A-08-20), for Latham Excavation, regarding expanding mining activities at a site located off Johnson Road. Chair Baney opened the meeting at 4:02 p.m., at which time she read the opening statement regarding the hearing. Laurie Craghead clarified that the statement should be revised to allow a continuance or other action at the discretion of the Board at the end of the hearing. In regard to conflicts of interest, ex parte contact or bias, none of the Commissioners had any to disclose. No challenges were offered. At this time Chair Baney opened the hearing. Paul Blikstad gave a brief overview of the reason for the hearing. The applicant listed a number of items (as detailed in a staff memo dated January 15, Exhibit B), in regard to mining pumice and using a rock crusher and washer on site. Two hearings were held before the Planning Commission. In between those dates modifications were submitted by the applicant. The Hearings Officer's written decision was mailed out July 31, 2008. Subsequently the applicant filed for reconsideration, and an appeal was received from the opponents. Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 1 of 22 Pages Because reconsideration goes first, that was processed. The Hearings Officer declined to amend her decision. A second appeal was received from the applicant. The Board agreed to hear the appeals, which have been consolidated and are to be heard de novo. The required transcripts were received. Additional information was received today from the applicant. Staff also received a collection of prior permits and applications having to do with similar sites in the area. What constitutes a noise or dust sensitive use is the question. The Hearings Officer feels that is the entire property, not what the County staff has interpreted as property normally used for sleeping, schools or church use, etc., is a sensitive use. The Hearings Officer said that the term `real property' means the entire property and not just the dwelling. Staff has interpreted for years that it was generally referencing dwellings. Commissioner Luke asked if there is any legal precedence in this particular instance. Ms. Craghead said she has not researched this, but the other attorneys may present this information. In regard to a revised ESEE through a plan amendment, the Hearings Officer found that this is not required, per page 7 of her decision. She determined that the whole site is designated for mining and the ESEE analysis should not have to be redone. Additionally, there was the issue of `processing' and whether it allows crushing. The Hearings Officer felt that it would include crushing, and it has always been the opinion of staff that processing does include crushing as a normal part of mining. The visual screening per Code is the third issue. The ESEE states that under the program to meet the Goal, to protect the aggregate resource and conflicting resources, conditions could apply. Noise and visual impacts would need to be screened from Tumalo State Park, in particular the headwall. The headwall is only visible from the upper trails at the park, north of the camping area. Staff feels that most of the park users will not be able to see the mining activities. The applicant did not want to be held to a condition to establish a 100 foot buffer by the Hoffman property. This requirement was based on not being able to see the mining activities from the Hoffman residence. Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 2 of 22 Pages In regard where the proposed crushers and washers would be located, the Hearings Officer said that these should be located on the southwest potion of the site. There were three locations submitted. Because of the sound buffering provided, the Hearings Officer felt that is where the crushers should be. However, there may not be room in that specific location for both crushers and washers. It is clear that the southwestern location is the most beneficial, per the Hearings Officer. Another issue brought up was the reclamation of the site. DOGAMI feels that is under its authority, not the County's. The Hearings Officer did not set out any conditions regarding reclamation. There were a number of pictures taken from Highway 20 and other areas in regard to dust blowing, generally west to east. In an attempt to correct this, the applicant did institute a process called hydomulching, which seems to have a significant effect on keeping the dust down. The Hearings Officer included dust abatement in her opinion. It might be a good solution for the County to consider this in other situations. Commissioner Luke stated that hydromulching works well. However, he hates to have to spell out that a certain product or process be used, as there could be other options in the future. The impact on local wells was another issue. An emergency response plan was submitted by the applicant. The Hearings Officer decided that there is adequate protection for the aquifer in the area. The local Water Resources manager felt there is adequate supply and protection. The wells are typically around 400 feet deep. Another issue was traffic impacts on Johnson Road, including noise from trucks and danger to bicyclists, and site distance at the intersection. Input was solicited from the Road Department and they said no improvements were necessary. The Hearings Officer took this and no mitigation was required. The notice of appeal states the Hearings Officer did not address the Highway 20 and Cook Avenue intersection. However, the road people didn't feel this had to be addressed. It appears that noise from the trucks is exempt if they don't go on for longer than five minutes, per State law. Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 3 of 22 Pages Frank Messina of the DEQ then testified that he is here on behalf of the air quality program. They received four or five dust complaints in 2007 and fewer than that in 2008. He has inspected the sites and feels that they are using adequate water to keep the dust down. They are also using hydromulching, which is working well. Two rock crushers are permitted by the DEQ but they are not at the site. There are rules on dust emissions. They are doing the best they can and are doing a good job. They did receive photos from the complainants but the operators are doing a good job at the present time. Commissioner Luke stated that dust blows here if there is nothing planted on the ground. He asked whether it is because it is a pumice site or the operations. Mr. Vicina stated that this is an industrial type business and they are required to do the best they can, with water mostly. They have to attempt to keep the dust down. Commissioner Unger said that dust seems to be the biggest issue. The DEQ addresses dust but this is not like an urban area where dust abatement is required. Requirements are less in an industrial area, even though there are people living in the area. Mr. Messina said they permit industrial sources. They don't permit farmers plowing, and they produce a lot of dust. The permits spell out specific rules for keeping the dust down at the facility and around the facility from trucks that are coming and going. Commissioner Baney asked if there are approved ways to do dust abatement; are there some things that are better than others. Mr. Messina said they try to stay away from hydrocarbon products, and it appears water is the best way. Commissioner Luke asked if there is a way to write a requirement for the applicant to use specific products but be allowed to change those through an administrative decision. Ms. Craghead stated this can probably be addressed. In regard to DOGAMI (State Department of Geology and Mineral Industries), Mr. Blikstad said that DOGAMI is the lead agency involved in this type of business. He read information about the process that DOGAMI follows in regard to reclamation. The opponents wanted input on the vegetation that would be planted. Regarding the 100-foot area, it has not been mined and is not subject to reclamation, but the County may impose certain plantings. The vegetation now there is mostly natural. The Hearings Officer wanted the plantings changed to buffer the mining activities. Mr. Blikstad said that he has visited the site and it would be hard to add vegetation that would make a big difference there. Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 4 of 22 Pages Pat McClain identified himself as an owner of the property and a member of the LLC that operates the business. Bruce White, an attorney representing the applicant, also testified. He introduced Kerrie Standlee, an acoustical engineer. Mr. White said that they tried to minimize the amount of testimony by providing as much as possible in writing in a binder, with a table of contents with tabs for each area. (This information is already contained in the record.) The notebook takes information from the existing record, organized by topic. This is meant to help the Commissioners find the answers they need by topic. There is also a collection of prior ordinances and permits from the County, which demonstrates how the County has handled surface mining issues. July 12, 1990, is the date of a decision that indicated which dwellings are protected and which are not. He disclosed that he was assistant legal counsel for the County at the time these ordinances were adopted. The ordinances have findings associated with them; these cannot be found in Code. These give some assistance in learning what the County was thinking at the time. Another reason for presenting the information was that the plan just shows goals and polices, not the various ESEE (Economic, Social, Environmental and Energy) analyses. It is basically a findings document used to resolve conflicts in regard to impacts. Conflicting uses are typically dwellings, churches, schools, parks and so on. Each site has an ESEE. This site is #303. There are other sites in the area that are zoned for surface mining; these are included for context. One of the largest sites in the County is located near Sisters. The ESEE analysis for this site is very similar to the others. The question is what is the role of the ESEE in the zoning ordinance and the amount of material that has been inventoried. Another notebook provides new material being submitted today; a memorandum of appeal and the opponents' appeal issues, plus an analysis of the approval requirements. He said he also provided a sheet that consolidates the information. This summary provides guidance as to where the backup information can be found. Some case law has been cited. He said he included the Hearings Officer's decision and the appeal documents for reference. He has a letter from the DEQ (State Department of Environmental Quality) regarding what has been done before and what is now being done. Visual impacts are also being addressed. Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 5 of 22 Pages Issues such as a noise sensitive uses under State law will also be addressed. Going back to 1975 it has been determined this is from the dwelling, not the whole property. Also, a member of DOGAMI indicates they are ready to provide a water quality permit. At this time he pointed out the property on an oversized aerial photograph. The current permit allowed 160,000 square feet, or more than three acres. The County would allow five acres for excavation at any given time. Access is from Johnson Road, which is paved. There is mostly juniper in the area. They could not begin work until Cascade Pumice closed a site. All they had an interest in was getting to the pumice. Mostly Cascade Pumice was sold out of state for construction of cinder block, but the material produces three main products - cinder block products; a block plant where Redmond gets resources, and the horticultural product. There were some questions as to whether it is a viable resource. One issue is because the inventory didn't include some of the material. The Cascade Pumice site plan says that it says "typical cell". Even the initial slot was very narrow and long. The current site may not be convenient for processing and crushing. Cascade Pumice never sought approval for processing, because they had a plant at Deschutes Junction. Material from Mock Road and Tumalo Reservoir Road also went to that location. They have leased a portion of the Coats site to do the processing. Recently the applicant has been excavating at the Parrat pit near Deschutes River Woods, but they want to get back to this site where the material is better. There are photos of the crushers that might be used; one is a roll crusher and one is a rock crusher. There are some larger rock pieces in the stockpile. Equipment is being parked in an area that is screened by topography and trees from the northwest and the northeast. One map on shows arcs as to distance from residences. He referred to an oversized map that showed where residences are located, and any conflicting uses have been identified. The audio expert identified eight locations to take noise measurements. These are all residences in the area that are considered protected because they were built prior to 1990. Others were built after 1990 and are not protected in terms of visual impacts. Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 6 of 22 Pages In regard to noise, they have to look at all of the properties. Tumalo State Park is nearby. There are three residences across the river that are post-1990 residences. There are three more that are pre-1990. Tumalo State Park owns additional property in the area, with a trail connecting it with the Park. Commissioner Unger asked where the headwall is. Mr. White said the scenic waterway does not cover this but could at some point as they move over. None of the structures or processing equipment would fall within the scenic waterway. Statute says as the urban growth boundary changes, the scenic waterway may be affected. Mr. McClain was asked what areas are to be reclaimed and what are active. He said there are several applications, both on his property and through Cascade Pumice, who operated on the land at an earlier date. That portion of the pit was preexisting and does not have to be reclaimed. They are asking for five acres to be actively mined and for an area for storage or processing purposes. Commissioner Baney asked if there is a permit from DOGAMI of the specific site. Mr. McClain said that it was for another site. There was one for pumice and one for other material. Commissioner Baney asked what the standards would be for reclamation for certain sites. Mr. McClain recommended that DOGAMI be contacted for its perspective. They don't understand the five acre rule that the County has imposed, and often regulatory authority is difficult to define. Commissioner Unger said that DOGAMI has different standards for cleanup for industrial and residential. Mr. McClain stated that the old area was the part that was hydromulched. Some of the newer area has also been seeded. Mr. White stated that there is a weather station on the property that records wind speed and direction. There are piles of overburden that were removed from Cascade Pumice that could be used for reclamation. There might be an issue regarding the 1/4-mile setback area as to whether that can now be removed. Another issue may be whether they can use some of the area for stockpiling. Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 7 of 22 Pages Under the siting criteria of the Code, there is a requirement that processing, storage of equipment and other projects be 1/4-mile or farther away from dust sensitive uses. Arcs are used to show what can be sited and where. You can come closer to the 1/4- mile if you can meet the dust and noise requirements and if it has the least impact to adjacent properties. Commissioner Luke asked that behind Exhibit 11, whether the photo shows a road cut or the mine. Mr. White stated that is O.B. Riley Road. Exhibit 13 is Reservoir Road. None are the mine sites. These are to simply show road cuts. Exhibit 14 shows the same demarcation. Commissioner Luke asked that in Exhibit 15, photo # 1, whether that is the road into the mine. Mr. McClain said that is the driveway to the Hoffinan property. (Further discussion took place regarding where properties are located.) The photos show the property lines but not necessarily where the mining would be taking place. Mr. White presented photos taken from Tumalo Park. Some were taken from a knob in the Park above the amphitheater. In fact, Tumalo Park itself had a mining site within it at one point. (Photos were submitted at this time.) The photos show the view from the Park and also the residences that are adjacent to the property. Existing road cuts can be seen, as can the reclaimed Coats pit (#4). That has since been rezoned to MUA-10. The Knife River operation can also be seen (#5). Photo #6 is the view of the Hoffman property from the highwall. A ridge protects the Hoffman site (#7) from view. A photo taken from Johnson Road shows that the Hoffman property that is lower than the road is protected (#8). Mr. White agreed to let some of the others testify at this point, and he will continue his testimony later in the meeting. The Chair called for a five-minute break at this time. Tom Triplett, an attorney who is appearing as a neighbor, said he lives directly to the north of the mine site. He does not know if his residence qualifies as it is a converted barn that is 100 years old. The Hoffmans have about 80 acres and raise expensive horses. They are brought in as yearlings and stay there about a year. They have a substantial investment in this operation and have concerns about the Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 8 of 22 Pages health of the horses. Clay Davenport, another neighbor, owns about 400 acres located north and west of the mine. They raise orchard grass and goats. The Hamilton property is to the north but does not abut the mine property. They grow orchard grass and lavender. Mr. Triplett said he has 55 acres and grows orchard grass. Pat Gisler's property is 40 acres, and he breeds and raises horses and grows orchard grass. Mr. Triplett's concerns are several. They did not take a reading for sound from his property. There is no buffering that prevents the transfer of sound to his residence early in the morning. Also, the way that they turn in, on at least two occasions the trucks dumped pumice on his property but did not remove it. A big concern is the dust. He agrees that it is less today than it was before, but sometimes it can raise 200 feet in the air. The concern is greater because they have heard that certain forms of silica are carcinogens. His grandson has asthma and is not allowed out when operations are underway. Others have the same concern. Sometimes perception is reality; they wonder if they are being exposed to something dangerous to them or their animals. Some years ago, litigation took place regarding Reynolds Aluminum and a farmer in The Dalles. The pollutant landed on the grass and affected the cattle. It doesn't matter whether you can see the emissions. It was considered a trespass. The law has not changed. The law went to the Federal District Court in Portland. It was argued that the State had exclusive control over this type of business. The judge found otherwise. There is genuine concern in the area about health issues. During the spring, a number of neighbors filed complaints with the County, asserting that Latham had violated the terms of the use permit. They perceived that nothing was done with their complaints. They were told that enforcement was a difficult matter. Responding two days later doesn't help. Some people may not complain again for that reason. If someone went on the Hoffman's property, they would see an ugly scar visible from what has happened in the past. He asked what limitations there would be. Cascade said they would operate for certain years with a certain amount of material. There are no limitations being imposed, with no ongoing reclamation. The scar becomes larger and more obvious. There needs to be assurances that there will be remediation. The neighbors want to know if there will be the financial wherewithal to make remediation. It needs to be incrementally reclaimed so that there isn't a giant scar on the earth and the amount of dust is kept down. Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 9 of 22 Pages Commissioner Baney mentioned complaints about noise or dust. She said that the DEQ regulates dust issues; the County does not have the ability to mandate or enforce this. Mr. Triplett said that both agencies should have authority. Commissioner Baney asked when he moved onto the property. He said they bought it in 1993. Commissioner Baney asked staff how long a mining site can operate. Mr. Blikstad said there is no time limit as it is a protected use. Mr. Triplett said that Cascade planned to limit it to eight years. However, they either extended the time or sold off the property. This condition was not part of the permit. 1 Ms. Craghead said that under 13.36.010, except as otherwise authorized, there cannot be a nuisance on private property. There is an abatement process, but no citation process. Nuisance can include various things but dust is not listed. There has not been an interpretation as to whether this list is exclusive. The Board has not advised staff to do any nuisance control except for what is already listed. If it is not listed as a Code violation, no citation can be given. Commissioner Baney said that the County may not know; and if she made a complaint, what would she be told. Ms. Craghead said that noise complaint would go to the Sheriff, but the Board in the past has determined that the list is exclusive and does not include dust. Mr. Blikstad said he would have to ask his Code enforcement personnel to learn more. David Whistler of Tumalo Rim Drive testified. He represents the water improvement district for 53 properties, plus thirty neighbors who signed several enforcement complaints and never heard a word. He is a retired geologist from another state and has been involved with this process from the beginning, since the first hearing about a year ago. He purchased his property in 1992, and it is outside the '/4-mile area. It is a moving target and now he hears there is new information. He is not an attorney but knows there are legal limitations. The District is an Oregon corporation established in 1980 with priority water rights for domestic use. There are two wells about 1,800 feet from the current mining operations. The State defined what they call water protection areas as required by federal law. The water protection area includes the mine area. This is in the record, stating that the aquifer is an open aquifer that passes through the mine. Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 10 of 22 Pages The water district is concerned about contamination. They have worked with the Lathams and have agreed to some conditions, but enforcement is another issue. The County DEQ reviewed it and was not concerned. It is frustrating to the homeowners. They had meeting with Mr. Messina who explained his limitations. The property owners are concerned about the water quality and potential leaks. Once something bad gets into the water, nothing can be done. The other people, thirty property owners, wanted to address reclamation and dust. In dealings with DOGAMI, they are not doing the County any favors. They say that some of this is a County issue. DOGAMI won't do anything until the owners say they are done with mining, then they direct reclamation. In 1990, ESEE said they have to do incremental reclamation. Latham may have unwittingly taken on this responsibility from Cascade. This would solve the dust problem if followed. Mr. Whistler asked the Board to consider this. He realizes there is a right to mine but the neighbors need to be considered. Cascade reclaimed another site and it looks good. Latham is not being required to fill the hole. They met with State Senator Ben Westlund, who said he would talk to DOGAMI on their behalf. The people are concerned about the dust coming from the headwall, especially in the summer, which the applicant wants to make bigger. The other cuts around the area all shed dust as well. That does not make it right to create more. There does not seem to be any County agency that will enforce what can be done on the property or that the company will have do what they said they would do. Commissioner Luke said that the wells are tested monthly. Mr. Whistler said they have not had a problem in decades. Both wells are over 400 feet deep. They are located 1,800 feet north of the mine property. Commissioner Baney said that Mr. Whistler praised Cascade for their working relationship with the water district. However, a spill could occur in other areas such as Johnson Road. She asked if water quality was a concern in the past. Mr. Whistler said they resolved the issues at that time in the past. Ms. Craghead said that per the ESEE analysis on page 12, #23, excavation is to be limited to five acres with subsequent reclamation, subject to DOGAMI approval and review. Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 11 of 22 Pages David Adams lives on Tumalo Rim Drive,'about %2-mile due north of the mine. He referenced photos that were submitted at a previous hearing. Dust is a big issue (he showed a photo of a large dust cloud rising from the site). The wind comes from the west, towards Tumalo State park. He realizes that Latham has tried to control this with hydromulching, but is concerned that control will continue. He does not like the term `do the best you can' per DEQ. It appears that the requirements of DEQ are not strong enough. There are DEQ standards relating to dust clouds, and these are not being applied. He asked that more stringent DEQ standards be applied, but that was not part of the Hearings Officer's findings. Dust control should not be driven by complaints. Hydromulching may not be a permanent solution. There was a discussion of road cuts and headwalls. The record contains photos of both on windy days. There is dust from the headwall when there isn't from the road cuts. The implication is that cuts are okay, visually and regarding dust. The road cuts have been weathered over the years. Another issue is the upper park trails and visibility of the headwall. It seems that if you have to work too hard to get up there, it doesn't matter. However, there is a lot of use of the trails. Commissioner Luke stated there are a lot of cuts in the area. He is not quite sure how climbing a trail and seeing a mine would ruin someone's day. There is a lot of that around the entire area. This is not the only visible location. Mr. Adams said it doesn't ruin his day but is more worried about dust coming from a working mine. And they don't need one more ugly cut in the ground. He said that Latham has taken some steps to control the dust and hopes they continue to do so, but is concerned that this is open-ended. He would like to know that they won't have to file complaints. During the hearing process people were taking lots of photos to report dust problems. He hopes that compliance would be done without complaints being made. Commissioner Luke asked if there is a reclamation plan on file fro the eastern portion. Mr. Blikstad said that it is pre-DOGAMI and is not required to be reclaimed. Anything they do on the site is voluntary. The current site was started in the early 1970's. Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 12 of 22 Pages Commissioner Baney said that she believes 1985 is the year DOGAMI originated. She asked how long Mr. Adams has lived there. He said in 1997. She asked if there was concerns at that point. Mr. Adams replied that concerns rose with the application from Latham. He knew there was a mine there but heard that it would be closing, per Cascade Pumice. He did not have dust control concerns at that time, although some neighbors voiced concerns about it. Helen Whistler has lived in the area from 2002. In 1994 she owned a different property off Johnson Market Road, where the headwall is very visible. She understands that the Latham Mine is operating under Cascade Pumice because the conditional use permit has not been completed. She feels that Cascade Pumice has a reclamation plan on file, which was ratified by DOGAMI and enforced by the County. She mentioned that she hopes the Board has all of the opposition material available to them. She is surprised about the work sessions and that they were not informed about these. Commissioner Luke said these were just with staff. The Lathams sat in the room but were not allowed to speak. Commissioners are not planners or engineers, and the work sessions help to understand the issues. The Commissioners ask questions and staff provides staff reports to respond to them. Agendas and minutes of these meetings are taken. They are to educate and decisions are not made. Ms. Whistler said that Dave Evans felt that the citizens end up being the eyes to find out what is happening. Even with DEQ this is the case. The concern is that Latham has not been proactive, but takes action only when there is a complaint. (She then read a statement listing some of the problems she felt were not addressed.) Commissioner Luke said that staff cannot be everywhere all of the time. They depend on citizens to bring things to their attention. A County employee cannot go onto private property without permission. As much as possible they try to react, but there are other agencies that have authority in some cases, not the County. Ms. Whistler said that the headwall being viewed from the park trails is an issue. She took photos with a zoom lens from a well-used trail. In regard to road cuts, they are tiny in comparison with the headwall. It is not so much the visual as the fact that dust blows off the headwall. The road cuts are weathered and stable. Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 13 of 22 Pages She is concerned about the dust being carcinogenic. Crystalline silica dust makes up a lot of the material mined at the site. Industrial regulations don't control the dust that blows off the site. Gina McClard of Johnson Road, said that it was determined that hers is the closest pre-1990 home to the mine. She wants to make sure the setbacks are followed to protect them and the park. They purchased in 2007 and were told that the mine was going to close, and that profitability was limited. Latham was granted an expansion on the operations. They endure excessive, loud noise and disturbing potentially dangerous dust. There is no buffering from the mine. Their quality of life is affected. She invited the Commissioners to do a site visit. She does feel that an expansion in this scenic area is detrimental to the people living there. They are concerned about reclamation and whether it will ever happen. She hopes that this matter will be reviewed with fresh eyes. Several people share a 600 foot well on the property. Ray Tien lives on the former Kemple property that abuts the headwall. He wanted to address the issue of silicosis. It can be chronic, accelerated or acute. Most of OSHA's rules cover workers. The standards are limited in design for other areas. The question is what the impacts are to exposure to low levels of silica. (She went on to read the rest of her husband's letter.) Kris Cranston of Bend said her parents have owned an adjacent property since the 1970's. She said that it would ruin her day to see things that are not pleasant to the eye if she was a visitor here. People coming to a State Park don't want to see a mine or put up with the noise and pollution. It is clearly a rural area and this mine is in the middle of it. It has been there a long time, but should not be expanded. She hopes that the operation and expansion are limited or not allowed at all. The tree screening is inadequate. It might catch some of the dust but it still spreads everywhere. The backing up of trucks is heard all the time. There is a question of operation hours. She does not want to be disturbed by this. There is a deer migration zone through the area, and she wondered if it has any bearing. She knows she can't divide her property because of that. Mr. Blikstad said the wildlife overlay area is on the border of the property, but does not go into that area. Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 14 of 22 Pages Commissioner Baney said that this has been a mine for a long time. She asked if there are new problems that were not seen before. Ms. Cranston said traffic and noise is worse. When Cascade Pumice was there it was lighter. Dust has increased as well. And the area will be destroyed. Commissioner Baney indicated she knows Rex Gibson, who wished to testify, on a personal basis. Mr. Gibson of Johnson Road said he has lived near the mine site since June 2007. The reality is he did the research and was told that the mine would be closed. Otherwise he would not have purchased and moved his family there. It is a concern to him. No one knows what will happen out there. He is worried about the effect of the dust and potential impacts on the wells. His house is not within the 1/a mile but the well may be. The well is about 600 feet deep. He can hear the trucks and see the dust, but is concerned mostly about safety. He grew up in Kansas and loves the country, but does not want to expose his children to dust hazards. They raise hay and have cattle. He hopes that this be considered cautiously. He was assured that mining was wrapping up, and moved ahead with that promise in mind. They talked with neighbors and Realtors and thought they could trust what was promised. A five-minute break was taken at this time. In response to a question from Commissioner Baney, Mr. White said that the clock runs out the end of February. He might be okay with extending the clock by a reasonable amount of time, but not indefinitely. Mr. McClain said that weeks and months of delay have an impact. In the current economic climate, it is important that this be resolved. Commissioner Luke stated that because of new information, the process will take a bit longer. Mr. White presented a photo of the knoll above the park that can be climbed to see the site. He also said that there is a watering plan in place to justify the amount of water they can use. David Evans and Associates did the calculations based on a map. This map is in the record in this regard, showing the areas that are being watered and the areas that have been mulched. Commissioner Baney asked what happens if the client does not do the mulching or watering, or if they leave and don't reclaim it. She asked who would regulate this to make sure it happens; or if it is solely on the goodwill of the client. Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 15 of 22 Pages Mr. White said that some conditions can be set by the County for that permit. These conditions can include dust abatement as well. The evidence shows that it is feasible to do what they want to do with adequate dust control. The well has enough capacity to do this. If the area is increased, they may have to adjust to a bigger water truck. The nature of dust control is reactive. There are days when dust does not rise and the same things would not be necessary. There is no absolute prescription that you do a certain thing at a certain time. There is a cutoff of operations if the wind speed gets to a certain point. With respect to the appeal, they relate to noise and dust. That has been briefed but a summary has been done. They know that visual and dust protections are required. The question is what a noise or dust sensitive use is and where do you measure from. He has heard a lot of testimony about farming. The area is zoned EFU and noise and dust are expected under farm use, and this is protected by law. Mr. McClain's testimony includes pictures taken of clouds of dust on the Triplett and Davenport properties when they were plowing their fields. The Hearings Officer failed to appreciate that the County's definition of a sensitive use comes from DEQ regulations. DEQ takes its measurements at 25 feet from the dwelling. Under DEQ rules, the dwelling is being protected, not driveways or fields. Consistent with this interpretation, the scope of the use is around the dwelling itself. It talks about areas for sleeping, churches, hospitals, libraries and others. People recuperate inside these structures. There is ample case law to rest a defense. A new sentence in legislative history has excluded garages and other outbuildings. There is a flip side of the surface mining setbacks. These are also setbacks that could restrict the development of properties adjacent to the site. So if someone wants to run a driveway within 250 feet of a mine site, they may not be able to do so. The better argument is that the area is intended to be right around the house. That issue bears on whether there should be a berm and vegetative screening for the driveway that serves the Kaufman property. If you bring in what a noise or dust sensitive use is, you can't see the mine from the Kaufman house. Commissioner Baney asked if there is an underlying zone to the property. Mr. White said that it might have been surface mining reserve previously. There is another factual issue, those that are not a protected use. The Hearings Officer indicated the view would have to be protected from the property of an unprotected house. Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 16 of 22 Pages With respect to the visual issue, this does concern the ESEE and the zoning ordinances. The opponents elevate the ESEE to a higher level than it really deserves. There is a specific provision that ESEE conditions be considered if they conflict with a zoning ordinance. It gives a more limited role to ESEE. Ms. Craghead read the first sentence regarding setbacks and operation standards, to the extent that if there is a conflict, ESEE controls. Mr. White said this limits what the County can do. They are inventoried for 750 cubic yards. That is more a finding of significance to allow the mine site to be on the inventory and allow the process to continue, but is not a limitation. There are two ways in which the Hearings Officer erred. One was to assume that in all cases there would be an absolute performance standard, that the mine should be totally obscured. There is a standard for that when the existing vegetation achieves it. You have to leave the trees if they are there. The supplied screening standard requires six feet on center. You cannot mitigate a headwall with six foot pine trees. Therefore, you mitigate to the extent that you can. They cannot provide complete visual screening. There is an exclusion as well that says that if you can't mitigate because of topography, you don't have to do it. In some cases, no matter what you do, you can't screen it due to topography. The Hearings Office read that to not include a manmade disturbance, but there is nothing in that language that limits it to natural topography There is an exclusion implied because the word "natural" topography was not used. Commissioner Baney asked if a Commission has ever made this finding. Mr. White said that he didn't believe a Board had ever done so with this clause. Mr. White said that developing a revised site plan through work with the Parks Department to determine how to screen is impossible in this case. It was already excavated previously by Cascade Pumice in a way that can't meet this requirement. The ESEE in 23(b) had a condition to pay attention to the northeastern and southeastern areas of the site, but does not clarify what needs to be adopted. It is possible to do some mitigation. Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 17 of 22 Pages The pre-1990 houses across the river might be able to see the processing areas, but a condition of approval can be set up to erect berms to shield the equipment from view of those houses. It might take berms 16 feet high. They have not heard from those residents, however. The current location for equipment storage is around the corner, behind a vegetated area. If that area is mined, they will have to move the equipment. Reclamation has been adequately addressed; DOGAMI has that authority. Incremental reclamation and the five-acre limited areas is subject to DOGAMI review, even though it is within the ESEE purview. A reclamation plan is not required with an application. The plan is submitted to DOGAMI after approval but before the use permit. Commissioner Luke asked if they can mine the site now. Mr. White said yes. There is a bond in place with DOGAMI. This is set by DOGAMI. Commissioner Luke said that answers the question about what happens if someone takes off. Commissioner Luke stated that if there is an approval, they have to go to DOGAMI with the plan. He asked if they have to come back to the County at that point. Mr. White said that the DOGAMI plan is part of obtaining the use permit from the County. DOGAMI provided a letter in the record that indicates that hydromulching is a form of interim reclamation. The whole site is covered by this, except for three acres that are pre-1972 and are exempt. Commissioner Luke said that you hope to get to a point where you don't have to do anything to the land. Once it is deemed reclaimed, that is it per DOGAMI. Most of the time it is natural plants. Ms. Craghead stated that if it isn't covered by DOGAMI, County rules can apply. Mr. White said that DOGAMI believes they are in compliance with their permit. There was something said about an approved reclamation plan previously in place, but that has always been under DOGAMI's authority. They are in their rights to go to a more sheer wall, provided the slope is stable. The geotechnical advisor has indicated it is feasible. There is an issue about ESEE allowing crushing. The County has never subscribed to not allowing this. The practical effect of not letting crushing happen would then not allow this to be done on any mined property. Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 18 of 22 Pages Commissioner Luke asked if others are processing on site. Mr. White said this information is in the DOGAMI report. One of the issues was whether the Hearings Officer left a condition regarding the State Parks weighing in to decide visual aspects. That is an error and the public cannot be excluded, but there is no legal authority to allow the State Parks to do this. They are not mining experts. With respect to the '/4 mile visual issue, there is a legal question as to what the Code says. It asks which aspects of the mine are subject to this. There are some piles of material that were inherited, but are not stockpiles available for sale; this is topsoil to be used for reclamation. Those do not constitute storage materials. The applicants being required to identify where storage and stockpiles will be is impossible to do over the lifetime of the mine. They can indicate the '/4-mile areas. Berms can be erected as needed. There are three proposed processing sites and those would be basically permanent. In regard to noise standards, some of the measurements were questioned by Paul Dewey. The engineer said that some of the measurements were actual measurements; permission was granted to go on the property. It is not just predictive modeling. With respect to the rock crusher, it was done with predictive modeling based on another location. It is impractical to use an expanded measurement of noise, and this is contrary to State law. Dust suppression is reactive in nature, and in some ways the only way to know if you have done is right is to see if you have dust issues. Mr. White said they went into great detail about the fugitive dust standards. There is no predictive modeling required for a site such as this. Some industrial sites do have to model this, but not at this site. There was a reference to the opacity test. A DEQ reader would come out to see if dust emanating from a source exceeds 60%. Most of the time dust coming from an exposed source is not applicable. There are permits for each of the crushers and this activity is enforceable by DEQ. The County does not enforce DEQ rules. This can also be read off a stockpile, but if there is adequate water and a means to put it down, it will handle this condition. Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 19 of 22 Pages Commissioner Luke asked that this testimony be wrapped up or continued to another date and time. Commissioner Baney allowed Mr. White another five minutes. In regard to traffic, Code does not regulate offsite impacts. The only issue to address this is access onto public highways. Sometimes road improvements are necessary if the pavement is not adequate. A traffic study was provided earlier. Commissioner Luke asked if the public would be coming to the site to purchase material. Mr. McClain said that they only do wholesale. Commissioner Luke asked about mining on the upper wall, and asked if there is a lot of material in that wall that they want to mine. Mr. White said that the headwall could be extended; they want to go into the hill further. Mr. McClain stated that they can do this if they can show stability under DOGAMI specifications. It could go perhaps twenty more feet to the west. The elevations are on the site plan. David Evans and Associates shows it following the contours of the land. Mr. White said that the wall will get longer, as some of the area has not yet been excavated. Commissioner Luke stated that State Parks was involved when the scenic waterways rules were put in place. Mr. White said they are no where near a year of getting into that area. A notice has to be made and there is an approval process if they disturb ground within the scenic waterways. Mr. McClain said that Commissioner Luke had asked about the type of rock. He said that the information is available in the records provided. Paul Dewey said he represents the Hoffman's, who are not available. He stated that usually the Hearings Officer's hearing start at 6 or 6:30, and typically there is a continuance after four or five hours. Commissioner Luke said that it might be hard to reschedule due to time constraints. Ms. Craghead said it depends on how long the applicant will extend the record. She believes he meant the written record, not oral testimony. A discussion took place regarding whether to continue the hearing. Mr. White asked if there is written material that can be submitted now from Mr. Dewey. Mr. Dewey submitted a binder of materials into the record at this time. Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 20 of 22 Pages Commissioner Luke suggested that Mr. Dewey be allowed to review the new information and testify on Wednesday, January 28, at the regular 10:00 a.m. Board meeting. Mr. Dewey stated that he has a brief due at the Oregon Supreme Court and timing is difficult. Commissioner Baney said that she likes the idea of continuing the hearing to a morning business meeting, allowing Mr. Dewey to speak then and Mr. White could rebut, or they could continue the hearing at that point. After a long discussion, it was decided that the hearing would be continued until Monday, January 26 at 9:00 a.m. for one hour so that Mr. Dewey could testify. All other oral testimony was closed. The written record for rebuttal would be open for testimony from anyone, with no new information, until 5:00 p.m. on February 11. Final rebuttal from the applicant would be due by 5:00 p.m. on February 18. Deliberations would occur on February 23, with three weeks allowed for a final decision. Information is to be submitted to Paul Blikstad of Community Development. Being no further discussion, Chair Baney recessed the hearing at 9:05 p.m. DATED this 21St Day of January 2009 for the Deschutes County Board of Commissioners. n w Tammy Baney, Ch Dennis R. Luke, Vice Chair ATTEST: j Alan Unger, Commissioner Recording Secretary Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 21 of 22 Pages Attachments Exhibit A: Exhibit B: Exhibit C: Testimony Cards Staff Memos Photographs of Subject Property and Area Minutes of Board of Commissioners' Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Wednesday, January 21, 2009 Page 22 of 22 Pages ~ RTES rti V BOARD OF COMMISSIONERS' MEETING { REQUEST TO SPEAK Agenda Item of Interest: Latham Mining Expansion Date: Jan. 21, 2009 Name l 8~'L5,Hey- Address T-Mhalo lei vj,, 1) r J' nd , O ~2 } 7,2201 Phone #s y/- E-mail address a ~os'~nnar ~e wc~/ -~'a i( G.~'61 Yv~ In Favor F] Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes No Please give a copy to the Recording Secretary for the cord. 661 { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Latham Mining Expansion Date: Jan. 21, 2009 Name ~c. U "1 Address ~`~1 ~Iu,,~t~ e1A Phone #s E-mail address K1 Opposed FINo In Favor F-] Neutral/Undecided Submitting written documents as part of testimony? Yes Please give a copy to the Recording Secretary for the record. BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Latham Mining Expansion Date: Jan. 21, 2009 Name ~j l✓y~ C.r Address 1 4-M Phone #s r1 ~ 2 - 2~ r E-mail address ❑ In Favor ❑ Neutral/Undecided ❑ Opposed Submitting written documents as part of testimony? ❑ Yes ❑ No Please give a copy to the Recording Secretary for the record. sty 1JC/ ~ r 2t BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Latham Mining Expansion Date: Jan. 21, 2009 Address G2 6 Z~ c~fja ,,,i QZ 4-we-17 dom. 1-77451 Phone #s 3 > E-mail address x In Favor ❑ Neutral/Undecided ❑ Opposed Submitting written documents as part of testimony? Yes ❑ No Please give a copy to the Recording Secretary for the re ord. nU`' ; L 4 { BOARD OF COMMISSIONERS' MEETING REOUEST TO SPEAK Agenda Item of Interest: Latham Mining Expansion Date: Jan. 21, 2009 Name ► 5 3 S N w v: ~Jbv Document Reproduces Poorly Address 3 6„.), 04 1~-? o► Phone #s 3 _ ► 44 E-mail address a e a „a mot, (a . In Favor Neutral/Undecided Z Opposed Submitting written documents as part of testimony? M Yes No Please give a copy to the Recording Secretary for the record. i2 BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Latham Mining Expansion Date: Jan. 21, 2009 Name s- Address° Phone #s E-mail address F1 In Favor F] Neutral/Undecided Submitting written documents as part of testimony? 1-1 Yes Please give a copy to the Recording Secretary for the record. f o e„ Opposed No 40 BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Latham Mining Expansion Date: Jan. 21, 2009 Name Address Phone #s c~ ` 3 E-mail address 01 S g r. corn L4 In Favor Neutral/Undecided 0 Opposed Submitting written documents as part of testimony? F-1 Yes ©'No Please give a copy to the Recording Secretary for the record. Tt~TES n BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Latham Mining Expansion Date: Jan. 21, 2009 Name Address Phone #s E-mail address c..ow\ 1-1 In Favor 1-1 Neutral/Undecided Submitting written documents as part of testimony? F]Yes Please give a copy to the Recording Secretary for the record. M Opposed ® No { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Latham Mining Expansion Date: Jan. 21, 2009 Name C. Address 3 ~b~O ~o~ns o ~n o c~. Phone #s l~- E-mail address C, In Favor Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes No Please give a copy to the Recording Secretary for the record. BOARD OF COMMISSIONERS' MEETING n~ { REQUEST TO SPEAK Agenda Item of Interest: Latham Mining Expansion Date: Jan. 21, 2009 Name 4) 4, ~ L c T_r Address CZ2 a :1 5' AN 4 6 ~ 4A k.Q Phone #s a3 0 :5- E-mail address 77 -"L IQ t U a 4p F1 In Favor F-] Neutral/Undecided Submitting written documents as part of testimony? FlYes Please give a copy to the Recording Secretary for the record. X Opposed R No ,.TE5 0 Gar n{ BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Latham Mining Expansion Date: Jan. 21, 2009 Name )M q I ~ A , ADf} m Address 6d2 tZ 7-"41-0 91 M >4, Phone #s 54 3« - 1? 7 If E-mail address slave a M a C, CA)," F1 In Favor F] Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes F] No Please give a copy to the Recording Secretary for the record. V t 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/ MEMORANDUM DATE: January 15, 2009 TO: Board of County Commissioners FROM: Paul Blikstad, Senior Planner RE: Appeal of Hearings Officer's decision on CU-07-102, SP-07-46 (MA-08-3, MA- 08-4); also file nos. A-08-14, A-08-20, for Latham Excavation This memo is a supplement to the memo I sent to you on October 30th. This is intended to give an overview of the main issues that staff sees are involved in the Latham appeals. • What constitutes a noise and dust sensitive use: The Hearings Officer determined that the entire area of adjacent properties that are within the half-mile radius constitute a noise and dust sensitive use. We as staff have consistently interpreted the code such that dwellings are noise and dust sensitive uses (or the other uses listed in the definitions - churches, hospitals, libraries, etc.), not the areas around them. We think this is the correct interpretation of the code, and what was intended when the ordinance was originally adopted in 1990. • Whether the expansion of the proposed surface mine operation requires a revised ESEE (Environmental, Social, Economic and Energy) analysis by the County, through a plan amendment; The Hearings Officer found that the proposed ESEE analysis. Her findings on this issue are paragraph of the findings on this issue states: expanded operation did not require a revised listed on pages 6-7 of the decision. The last "In sum, there is nothing in the adopted Goal 5 program for mining, the Site 303 Program or the SM Ordinance provisions that prohibit the submittal of an application to mine pumice and Tumalo Tuff at the site." • Whether the use of the term "processing" in the ESEE analysis (at site 303 as well as numerous other sites in the County) was intended to allow crushing; The Hearings Officer found that the use of the term processing for site 303 did allow crushing. Her findings on this are on pages 10-11 of the decision. Staff believes this is consistent with prior surface mining decisions, and is also consistent with how this same language was used in Board Memo - Latham Excavation Page 1 of 4 Quality Services Performed with Pride the ESEE findings for other mining sites in the county. Additionally, the definition of processing in Title 18 (county zoning) includes "crushing." • The degree of protection to be afforded under the visual screening standards of the code and the manner in which the topographical exception should be applied; The ESEE analysis does list Tumalo State Park for protection. In the analysis, the "Program to Meet the Goal" (page 12), the ESEE states: "23. The Board finds that in order to protect both the aggregate resource and the conflicting resources and uses, the site on top of the plateau will be zoned for surface mining, subject to the following ESEE conditions: (b) Noise and visual impacts shall be mitigated by buffering and screening, with particular attention paid to screening from Tumalo State Park or the eastern, northeastern and southeastern boundaries." The primary issue is whether the "headwall" that has been produced at the site should or should not be allowed, based on the perceived impacts to the Park, and surrounding lands (see condition no. 17). Staff is not sure what was meant to be protected for the "eastern, northeastern and southeastern boundaries" other than possibly the dwellings that were in place in 1990. As staff has previously stated to the Board, the headwall is visible only from the upper trail at the park. It is not visible from the day use or overnight camping areas, where staff believes the majority of the park use occurs. The other screening issue is the requirement that the applicant establish either a berm or vegetative buffer on the northern 100 feet of the property to buffer the Hoffman property from the mining activity (condition no. 12). The Hearings Officer states on page 20 of the decision the following: "However, the hearings officer concludes that the processing activities, equipment and excavated south wall are visible from the Hoffman property, and that supplied screening and berming along the north boundary is feasible and appropriate to ensure that views from the Hoffman's property are protected. A condition of approval is warranted to ensure that a berm is installed and supplied screening is planted within the setback to screen the site from the Hoffman property." • Where the proposed crushers and washer (if allowed) should be located on the site. The Hearings Officer required that the crushers, as well as the washer (see footnote 10 on page 13 for the washer), should be located in the southwestern site as depicted on the applicant's site plan (this was staff's recommendation also). The three locations were pointed out to the Board at the work session yesterday. The Hearings Officer's findings on this issue are located on pages 13-14 of the decision (also see condition no. 9). The decision states on page 14: "The hearings officer therefore finds that because there is a location on the site that minimizes the impact of noise and dust from the crusher, that site is the most appropriate location for the activity. Accordingly, the hearings officer imposes a Board Memo - Latham Excavation Page 2 of 4 condition of approval limiting the location of the crusher to the southwestern site, depicted on the applicant's aerial overlay and contours, dated February 18, 2008." • Reclamation of the site. Whether incremental reclamation is required and whether the County has any authoritative role in the reclamation. Both staff and DOGAMI believe that the reclamation of the site is under the authority of the State. The zoning ordinance requires that the reclamation plan be submitted with the application, which the applicant submitted. Whether incremental reclamation is required is up to the State. The applicant has State approval for the mine, including reclamation. The Hearings Officer's decision has no conditions related to reclamation. The decision states on page 30 the following: "Even if DOGAMI exempts certain areas within the site from reclamation, the site as a whole is subject to DOGAMI control. The only role the county has in that case is to ensure that the reclamation plan proposes an ultimate use that is consistent with the county's post-reclamation plans for the site. Here, the site is planned and zoned for surface mining, and no post-mining use of the site has been identified. The proposal is consistent with those designations and the reclamation plan." • Dust abatement at the site. The hearings produced much testimony on the amount of dust produced from the site. During the hearings process the applicant applied hydro-mulch to some of the open areas on the site, specifically to the eastern portion of the site where there is no current mining activity (nor is any proposed there). The hydro-mulching appeared to be a very good way to control dust at the site. Prior to the application of this material, dust appears to have been a substantial problem at the site, as evidenced by the numerous testimony from neighbors and pictures submitted into the record by property owners in the area. The Hearings Officer, under condition no. 7, includes item b, which states: "application the (sic) dust-supressant and/or sealant products that meet State regulations." Staff believes that this condition could be "beefed up" by actually putting in the condition the requirement that the exposed areas, including that portion of the headwall not being mined all be treated with the hydro-mulch. Staff believes that anything that can reduce dust and the complaints from neighbors is needed in this application. Dust is a major issue for this and well as any other mine. Also in the record is a letter from the Oregon Department of Environmental Quality dated June 2, 2008. The last sentence of this letter states: "Therefore, the Department, while recognizing that dust from the site could be an unpleasant nuisance to nearby residents, has concluded that it is very unlikely to pose a significant threat to the health of these residents." • Impacts to the ground water supply (aquifer) in the area. The neighbors were concerned about the possible contamination of the ground water supply in this area from the mining operation. The main concern appeared to be directed at contamination from possible spills at the site (such as fuel or other chemicals from the mining activities) on the well for the Tumalo Rim Subdivision. The applicant submitted evidence of an Emergency Response Plan for the operation, which was attached as an exhibit to the modification submittal, and included as a condition of approval (see condition no. 8) of the decision. Based upon that plan and the recent comments staff received verbally from Water Resources (Kyle Gorman), there should be adequate protection for the ground water source. Board Memo - Latham Excavation Page 3 of 4 • Additional traffic impacts (including noise) from more trucks coming to and leaving the site, and insufficient sight distance at the intersection of the entrance road and Johnson Road. Staff notes that both the County Road Department and the County Transportation Planner recommended that no improvements to Johnson Road were necessary. The notice of appeal from Paul Dewey also lists as an alleged error in the decision any analysis and mitigation of the Highway 20/0.6. Riley/Cook Avenue intersection. This intersection was not addressed in the Hearings Officer's decision. The Hearings Officer addressed the noise from the trucks on page 23. The finding states: "The noise measurements exclude warning devices not operating continuously for more than five minutes, or sounds created by the tires or motor used to propel any road vehicle complying with the standards for road vehicles. OAR 340-035-0035(4)." Board Memo - Latham Excavation Page 4 of 4 l U, Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)3135-1764 http://www.co.deschutes.or.us/cdd/ DATE: October 30, 2008 MEMORANDUM TO: Board of County Commissioners FROM: Paul Blikstad, Senior Planner RE: Appeal of Hearings Officer's decision on CU-07-102, SP-07-46 (MA-08-3, MA- 08-4); also file nos. A-08-14, A-08-20, for Latham Excavation BACKGROUND Latham Excavation submitted applications for a conditional use permit and site plan for surface mining activities at what was/is an existing pumice mining site on Johnson Road. The applicant's original proposal was to expand the surface mining operation at the site approved in 1995 (through site plan SP-95-10), and to include drilling and blasting at the site, and to construct an office and shop at the site. The applicant modified the request to remove these two aspects of the proposed use, based mainly on concerns of the neighbors. The amended applications thus included: • Seek approval for extraction only within the footprint of the area approved for extraction in the approval for SP-95-10. • Approval for excavation of Bend Pumice and associated overburden materials and aggregate materials incidental to excavating pumice and overburden materials. • Approval for processing and sale only of materials extracted on-site; no processing or sale of materials brought in from off-site. • Recognize importation of materials from off-site for eventual use in reclamation. • Elimination of any approval for drilling and blasting. • Show alternative locations for screening and crushing of pumice and overburden materials. • Eliminate the office and shop and other structural accessory support facilities on site. • To allow for use of a portable scale for weighing excavated materials on site. The modification includes the following refinements and clarifications to those proposed at the original February 19, 2008 hearing: To allow for crushing of welded tuff and other incidental rock materials encountered in extraction of pumice and overburden materials. To provide for extraction, processing and sale of sand and horticultural materials. Board Memo - Latham Excavation Page 1 of 3 Quality Services Performed with Pride • To provide for washing of tuff, sand and horticultural materials. • To modify the maximum area of the slots to be 5 acres. • To note on the site plan the locations of the area where materials being brought in are being deposited, where haul roads exist and what vegetation will be retained. • To show the type and location of portable weighing scale that applicant proposes to use. • To show compliance with DEQ air contaminant discharge permit requirements for applicant's roll crusher. The applicant's revised burden of proof from February 19th lists the following as part of the request: • To add on-site processing, including crushing, of pumice and pumice overburden materials within the same footprint approved by the site plan approved by SP-95- 10. • To include temporary stockpiling on site of excavated material for sale to consumers. • To recognize that the pumice overburden is being mined for sale rather than retained on site. • To allow for hauling of materials up until 5:00 p.m. during the time period November 15 through February 15. • To recognize that the weather station has been removed from Sites 355 and 356 and installed on Site 303. • To recognize use of a water tank for water storage on site. • To allow for use of a portable scale for weighing material to be sold. Two public hearings on the applications were scheduled before the County Hearings Officer. The first hearing occurred on February 19, 2008, and the second on April 15, 2008. In between the hearing dates, on March 20, 2008, the applicant submitted modifications to the applications. The modifications were included in the April 15th hearing proceedings. According to the County Procedures Ordinance, the modification applications restarted the 150-day review period. The Hearings Officer's written decision on the modified applications was mailed out on July 31, 2008, approving the applications, with 18 conditions of approval. The applicant filed a request for reconsideration of the Hearings Officer's decision on August 12, 2008. Notice; of the reconsideration request was mailed out by staff, and a decision on the reconsideration was issued by the Hearings Officer. Her decision was mailed out on October 14, 2008. During the 12-day appeal period following the Hearings Officer's original decision, an appeal of her decision was submitted by opponents Hoffman, through their attorney Paul Dewey. According to the County's Procedures Ordinance, the reconsideration request is handled first. Because the Hearings Officer declined to reconsider her decision (the reconsideration decision left the approval as written), the appeal by Hoffman carries through to the reconsideration decision. The applicant filed an appeal of the reconsideration decision as allowed by code. Consequently, the Board has two appeals to consider in this proceeding. Board Memo - Latham Excavation Page 2 of 3 The County Code and State law require a maximum 150-day review period for land use proceedings with the County. Staff has calculated the review period, and with the modification applications, together with the time extension requested by the applicant at the April 15I' hearing, staff believes that the 150-day review period ends on December 11, 2008. APPEALS As indicated above, there are two appeals of the Hearings Officer's decision (file nos. A-08-14, A-08-20). The applicant's appeal requests an on-the-record review by the Board. The opponents appeal includes a request for de novo review by the Board. Staff believes that given the time constraints for a hearing and decision on these applications, it may not be possible to complete a review of these applications and issue a written decision by December 1 Vh. Staff believes there are outstanding policy issues that should be considered by the Board. These are: • what constitutes a noise and dust sensitive use; • whether the expansion of the proposed surface mine requires a revised ESEE (Environmental, Social, Economic and Energy) analysis by the Board; • whether the use of the term "processing" in the ESEE analysis (at site 303 as well as numerous other sites in the County) was intended to allow crushing; • the degree of protection to be afforded under the visual screening standards of the code and the manner in which the topographical exception should be applied; Staff believes that there are also issues related directly to the site itself that warrant review by the Board. The opponents have listed 17 alleged errors in the decision, and the applicant has listed 5 alleged errors. Staff will not repeat those here, but they can be reviewed in the attached notices of appeal. Staff has a very large file on this matter, which is likely over 2,000 pages in length. Most of it is available for review on-line, so rather than copy it for the Board, staff will copy only the mos: pertinent parts for a Board determination of whether or not to hear the appeals. am submitting for your review the following: ■ The applicant's and the appellant's notices of appeal ■ Hearings Officer's decisions (original decision and reconsideration decision) ■ The County's 1990 ESEE analysis for site no. 303 ■ Vicinity map showing the location of the mining site Please contact me at your convenience if you have any questions. I have a very large air photograph from the record that shows the property in relation to the surrounding area and development, which I can bring to a work session. Board Memo - Latham Excavation Page 3 of 3 Bonnie Baker From: Dennis Luke Sent: Wednesday, January 21, 2009 12:23 PM To: 'Susan Skavlan'; Board; Paul Blikstad Subject: RE: Public Hearing--Latham Mine Paul, would you enter this into the record. Dennis R. Luke Deschutes County Commissioner 1300 NW Wall St. Suite 200 Bend, Oregon 97701 541-388-6568 dennisl@co.deschutes.or.us -----Original Message----- From: Susan Skavlan [mailto:Susan.Skavlan@state.or.us] Sent: Wednesday, January 21, 2009 12:17 PM To: Board Subject: Public Hearing--Latham Mine To: Deschutes County Commission On Behalf of: Oregon Parks & Recreation Department RE: Latham Mine & Tumalo State Park As part of the public comment period, we would like to go on record that we participated in the beginning phases of this process and accepted the Hearings Officer's decision of visually screening the Latham Mine operation from Tumalo State Park visitors. We would like to see that decision upheld during this phase. Thank you very much for your time and consideration. Sincerely, Susan Skavlan--Park Manager, Tumalo Management Unit Chris Parkins--District Manager, High Desert District Oregon Parks & Recreation Dept. 62976 OB Riley Rd. Bend, OR 97701 (541) 388-6055 susan.skavlan@state.or.us chris.parkins@state.or.us 1 Latham Excavation Surface Mining Site 303 SP-07-46/CU-07-102 A-08-14/A-08-20 Individual Land Use Decisions On Subject and Related Property 1. BOCC Decision on Appeal of SP-95-010 2. Hearing Officer Decision on SP-95-010 3. SP-95-010 Site Plan (OVERSIZED EXHIBIT, Submitted February 19, 2008; resubmitted April 15, 2008) 4. Site Specific ESEE for Site 303 (Oct. 18, Ex. C) 5. Record for ESEE determination on Site 303 (March 20, Ex. 5) 6. SMIA Decision for Hoffman Residence (#2) (Feb. 19, Ex. 9) 7. Hoffman and Cascade Pumice Agreement (Feb. 19, Ex. 10) 8. Hoffman Waiver of Remonstrance (Feb. 19, Ex. 11) II. Deschutes County Ordinances Regulating Surface Mining 9. July 12, 1990 Surface Mining Package Table of Contents (May 6, 2008 Exhibit 1) 10. July 12, 1990 Ordinance 90-014 (Adopting SM Zoning Ordinance)(Feb. 19, 2008 Exhibit 3) 11. July 12, 1990 Ordinance 90-025 (Adopting Inventory) (May 6, 2008 Exhibit 2) 12. July 12, 1990 Ordinance 90-028 (Adopting Comp. Plan Policies) (May 6, 2008 Exhibit 3) 13. July 12, 1990 Ordinance 90-029 (Adopting Site-Specific ESEEs) (May 6, 2008 Exhibit 4) 14. Site Specific ESEEs for other Sites (attached to Ordinance 90-029 in Appendix A) a. Site 283 Crown Pacific-Bull Springs (May 6, 2008, Ex.6) b. Site 304 Fraser-Bend Aggregate and Paving- OB Riley Road (attached to April 14,2008 memo) c. Site 305/306 Coats-Johnson Road (April 15, Ex. d. Site 381 Pieratt Bros. - Deschutes River Woods (now Able) (May 6, 2008, Ex. 7) e. Site 411-413 Crown Pacific - Trout Creek (May 6, 2008, Exhibit 7A) f. Site 459/469 Deschutes County - Sisters View Drive (April 14 memo, Exhibit 2) 15. Record for Individual Site Specific ESEE Determinations a. Site 282-283 (May 6, 2008 Exhibit 8) b. Site 381 (May 6, 2008 Exhibit 9) 16. Ordinance 91-038 (Revising Definition of Noise and Dust-Sensitive Use) a. September 25, 1991 BOCC Hearing Minutes (Legislative History of Ordinance 91-038) 17. Ordinance 92-044 (Revising Goal 5 Conflicts for SM Sites)(Feb. 19, 2008 Exhibit 4) Latham Excavation Surface Mining Site 303 SP-07-46/CU-07-102 A-08-14/A-08-20 Table of Contents I. Applicant Revised Burden of Proof and Modification 1. Revised February 19, 2008 Burden of Proof and Exhibit List 2. March 20, 2008 Modification of Application Narrative and Exhibit List 11. Maps and Photographs 3. Site Plan (Reduced Version) 4. Site Plan Showing %-mile arcs (submitted April 15, 2008, Exhibit 2P-1) 5. Aerial Photo of Area showing %-mile arcs (submitted April 8, 2008) 6. Aerial Photographs of Site (1990, 1996, 2004) (May 6, 2008 submittal, Exhibit 5) 7. Current Aerial Photographs of Site (May 5, 2008, May 20, 2008) 8. Panoramic Photos of Pit Area (April 8, McClain letter, Exhibits 14-19) 9. Photographs of hydromulch treatment (April 15, 2008 Caverhill letter, Exhibit 8) 10. Photographs of Water Tank and Weather Station (February 19, 2008 exhibits) 11. Photographs of Pumice Screener (Caverhill April 15, 2008 letter, Exhibit 5) 12. Photographs of Pumice Screener and Roll Crusher (Caverhill April 15, 2008 letter, Exhibit 6) 13. Photographs of Wash Plant (Caverhill April 15, 2008 letter, Exhibits 1-3) 14. Photograph of Equipment Storage Site (Caverhill April 15, 2008 letter, Exhibit 17) 15. Photographs showing eastern property line of property (March 20 submittal, Exhibits 8-1- 8- 4) 16. Photographs of pit in relationship to surrounding dwellings (April 15, 2008 Caverhill letter, Exhibits 9 and 10) 17. Photographs of surrounding road cuts (April 15, 2008 Caverhill letter, Exhibits 11-16) III. Site Plan Elements 18. Information on Weigh Scale (March 20, 2008 submittal, Exhibit 4) 19. Sand Wash Plant operations (April 15, 2008 Fenimore letter, Hearing Exhibit 2P-9) 20. Data Sheets on Mulch Products (April 8, 2008 McClain letter, Exhibits 9-13) 21. April 14, 2008 Mulch information (April 15, 2008 Caverhill letter, Exhibit 7) 22. Latham Excavation Equipment and Vehicle Fueling Procedures (May 6, 2008 McClain letter, Exhibit L) 23. Latham Excavation Emergency Spill Response Plan (March 20, 2008 submittal, Exhibit 7) IV. Permits and Approvals for Site 24. DOGAMI Operating and Reclamation Plan (October 2007 application submittal, Exhibit C) 25. DOGAMI Permit File (May 20, 2008 submittal, Exhibit 3) 26. March 2007 DEQ Air Contaminant Discharge Permit (Rock Crusher) (February 19, 2008 submittal, Exhibit 14) 27. 2008 DEQ Air Contaminant Discharge Permit (Roll Crusher for Pumice) (March 20, 2008 submittal, Exhibit 10) 28. WPCF-1000 Wastewater Permit (DOGAMI) (May 6, 2008 submittal, Exhibit 13) 29. October 31, 1996 Water Rights Final Order and Water Right (April 15, 2008 Hearing, Exhibit 2P-4 and February 19, 2008 submittal, Exhibit 17) 30. 1995 Oregon State Parks Scenic Waterway approval V. Applicant testimony and supporting letters 31. February 22, 2008 Pat McClain letter to DOGAMI (March 20, 2008 submittal, Exhibit 2) 32. April 8, 2008 Pat McClain letter to Hearings Officer and Exhibits 1-2, 6-8 33. April 15, 2008 Cougar Caverhill letter and Exhibit 4 (April 15, 2008 hearing exhibit 2P-8) 34. May 6, 2008 Pat McClain letter to Hearings Officer and Exhibits A-J, M (May 6, 2008 submittal, Exhibit 11 and accompanying Exhibits A-J and M) 35. May 20, 2008 Pat McClain letter to Hearings Officer and Exhibits A-E, G-Q (May 20, 2008 submittal, Exhibit 1) 36. June 3, 2008 Pat McClain letter to Hearings Officer (June 3, 2008 Exhibit A) 37. Supporting letters from Walrath Trucking and T. Lamp Enterprises (April 15, 2008 hearing Exhibits 2P-13 and 2P-10) VI. Agency Comments 38. May 6, 2008 letter from Ben Mundie (DOGAMI) (May 6, 2008 Submittal Exhibit 14) 39. May 20, 2008 email from Ben Mundie (DOGAMI) (May 20, 2008 submittal, Exhibit 8) 40. March 20, 2008 email from Frank Messina (Air Quality Program, DEQ) (March 20, 2008, Exhibit 3) 41. May 19, 2008 email from Frank Messina (DEQ) (May 20, 2008 submittal, Exhibit 7) 42. May 22, 2008 email from Frank Messina (DEQ) (June 3, 2008 submittal, Exhibit A-1) 43. June 2, 2008 letter from Hayes-Gorman (Air Quality Program DEQ) (June 3, 2008 submittal, Exhibit D) 44. June 3, 2008 email from Hayes-Gorman (June 3, 2008 submittal, Exhibit E) 45. November 25, 1996 memo from Kyle Gorman (May 6, 2008 submittal, Exhibit 16) 46. May 6, 2008 email from Kyle Gorman (May 6, 2008 submittal, Exhibit 19) 47. May 19, 2008 email from Kyle Gorman (May 20, 2008 submittal, Exhibit 6) 48. April 14, 2008 Deschutes County Code Enforcement file (April 15, 2008 hearing, Exhibit 2P-2) 49. Bend Fire Department (April 15, 2008 hearing, Exhibit 2P-2) VII. Legal Memos 50. April 14, 2008 Memo of Bruce White on issue of crushing and Exhibit 1 (April 15, 2008 hearing Exhibit 2P-6) 51. April 15, 2008 memo of Bruce White responding to issues raised (April 15, 2008 hearing Exhibit 2P-11) 52. May 6, 2008 memo of Bruce White 53. May 20, 2008 memo of Bruce White VIII. Consultant and Agency Reports A. Geotechnical Reports (54-63) 54. 1992 DOGAMI Publication #25, Pumice in Oregon 55. April 30, 2007 Siemens geotech report on resources at Johnson Road Pit (October 28, 2007 submittal, Exhibit E) 56. Fall 2007 Siemens report on Tumalo Tuff qualities (April 8, 2008 McClain letter, Exhibit 3) 57. October 8, 2007 FEI report on Tumalo Tuff qualities (April 8, 2008 McClain letter, Exhibit 4) 58. December17, 2007 Kleinfelder report on Tumalo Tuff qualities (April 8, 2008 McClain letter, Exhibit 5) 59. February 19, 2008 geotech report - Siemens (March 20, 2008 submittal, Exhibit 6) 60. April 8, 2008 geotech report - Siemens (April 8, 2008 submittal) 61. May 6, 2008 geotech report - Siemens (May 6, 2008 submittal, Exhibit 15) 62. May 19, 2008 geotech report - Siemens (May 20, 2008 submittal, Exhibit B) 63. June 2, 2008 geotech report - Siemens (June 3, 2008 submittal, Exhibit B) B. Acoustical Engineer Reports 64. December 18, 2008 acoustical engineer Kerrie Standlee noise report (February 19, 2008 submittal, Exhibit 15) 65. February 18, 2008 Kerrie Standlee noise report (March 20, 2008 submittal, Exhibit 16) 66. April 15, 2008 Kerrie Standlee noise report (April 15, 2008 hearing, Exhibit 2P-12) 67. May 20, 2008 Kerrie Standlee noise report (May 20, 2008 submittal, Exhibit 11) 68. May 20, 2008 Kerrie Standlee noise report (May 20, 2008 submittal, Exhibit 12) C. Air Quality/ Dust Control Reports 69. February 19, 2008 John Head dust control report (February 19, 2008 submittal, Exhibit 13) 70. May 6, 2008 John Head dust control report (May 6, 2008 submittal, Exhibit 17) 71. May 20, 2008 DEA water quantity calculation for dust control (May 20, 2008 submittal, Exhibit 4) D. Industrial Hygienist Reports 72. June 7, 1995 AIG Technologies silica testing analysis (May 6, 2008, Exhibit 20) 73. May 5, 2008 silica analysis of industrial hygienist Kerry Cooley (May 6, 2008 submittal, Exhibit 21) 74. June 1, 2008 silica analysis of Kerry Cooley (June 3, 2008 submittal, Exhibit C) Document Reproduces Poorly (Archived) 4 1 Document Reproduces Poorly ti Doc~+ ~ - r,Y, ~ lees Poorly odv O.Ocument Reproduces O O (Archived) l ~r r r 1. F Lynx jrnentl Iaeproduces oc~t ",Y (Archived) N ~n _~r ~ ~9 a.~'' AA~, i'~- 1` ~ gas jj. Li -j- k 4 1=5 14 r V W ~ 1 INDEX TO HOFFMAN MATERIALS • 1/20/09 Letter to Board Memo #1: A NEW ESEE IS NEEDED WHERE SO MUCH OF WHAT IS PROPOSED IS BEYOND THE SCOPE OF THE 1990 ESEE Memo #2: THE COUNTY'S REQUIREMENTS ON RECLAMATION ARE NOT MET Karen Green Memo Memo #3: CRUSHING SHOULD NOT BE ALLOWED WHERE THE ESEE DOES NOT DESIGNATE THIS SITE FOR CRUSHING Memo #4: THE APPLICATIONS SHOULD BE DENIED WHERE THEY FAIL TO PROVIDE CRITICAL INFORMATION ON WHAT IS TO OCCUR AT THE SITE Applicant's DOGAMI Reclamation Plan 8/8/08 Letter to DOGAMI 9/15/08 Letter from DOGAMI Memo #5: THE APPLICATIONS AND THE HEARINGS OFFICER'S DECISION FAIL TO ADEQUATELY ADDRESS THE ISSUE OF TRAFFIC IMPACTS • Truck Counts Memo #6: THE APPLICATIONS SHOULD BE DENIED WHERE FUGITIVE DUST EMISSIONS ARE NOT RESOLVED 2/22/08 News Article 5/19/08 Golder Associates Letter Dust Photos Memo #7: CONDITIONS OF APPROVAL OF THE HEARINGS OFFICER ARE INADEQUATE THE APPLICANT'S APPEAL ISSUES ARE NOT JUSTIFIED ESEE NEIGHBOR TESTIMONY • Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 Pa u I D. Dewey Attorney at Law 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 fax (541) 383-3470 pdewey@bendcable.com January 20, 2009 Board of Commissioners Deschutes County c/o Deschutes County Planning Division 117 NW Lafayette Ave. Bend, OR 97701 Re: Appeal to Board of Hearings Officer's Decision in CU-07-102/SP-07-46 (MA-08-3, MA-08-4); Latham Excavation Dear Commissioners: On behalf of my clients, Eric and Ronna Hoffman, I am submitting this letter in support of our appeal of the Hearings Officer's July 29, 2008, Decision on the above applications. As explained below, the Hearings Officer erred in approving the applications. Background. Before addressing the issues of our appeal or of the Applicant's cross-appeal, it is necessary to have some background to understand what is at stake here and how inconsistent this proposal is with the original intent of the County in designating this site for mining in the first place. When the County approved this site for mining in 1990 it described the scope of the mining resources as well as the surrounding competing environmental, residential and recreation values. That was all part of the Economic, Social, Environmental and Energy (ESEE) process under Goal 5 which requires such an assessment to balance those values to come up with what is allowable for the site. In that ESEE, the County emphasized the importance of Tumalo State Park and the Deschutes River Scenic Waterway: "The adjacent segment of the Deschutes River has been designated by the State of Oregon as a state scenic waterway. The Deschutes River was identified in the Ragatz study as one of the most important natural features in the County, that study noted that high proportions of visitors and residents make use of the river for recreational purposes. January 20, 2009 Page 2 • The Board finds that visitors to Tumalo State Park would also be affected based upon the testimony of State Parks and neighborhood residents. Tumalo State Park receives high campground and day use and that [sic] the site is located between two portions of the Park. State Parks testified that day hikers use the undeveloped portions of the park adjacent to site 303. In addition, the site is visible from the developed portions of the Park and from the River. (p. 6) Tumalo State Park is a major recreation site in the County and adverse impacts to the park could have an effect on visitors' attitudes toward the region. (p. 10) The use at Tumalo Park and sites along the Deschutes River are important as a major recreational site in the County. Noise and visual impacts shall be mitigated by buffering and screening, with particular attention paid to screening from Tumalo State Park or the eastern, • northeastern and southeastern boundaries...." (p. 12) In determining what mining could be allowed on the site, the County described the mining resource as 750,000 cubic yards of pumice and 10,000 cubic yards of aggregate. (ESEE, p. 2) After weighing the competing values and resources involved, the County decided to allow the proposed mining to occur. It also banned blasting and significantly, as discussed below, did not specifically designate the site for crushing. Now, 18 years later, after major changes in the area (with not only extensive development in the area but also in Tumalo State Park visitation which is now up over 100,000 people per year) and, notably, years after the former operator, Cascade Pumice, had told neighbors and the County that the mine would be closed, we are faced with this new application which proposes a substantial expansion of operations: 1) Where the original ESEE was premised on the mining of only 750,000 cubic yards of pumice and 10,000 cubic yards of aggregate, or a total of 760,000 cubic yards, Latham now proposes mining 4.2 million cubic yards of material, including 3.4 million cubic yards of tuff (a material not even mentioned in the ESEE), 700,000 cubic yards of pumice and 100,000 cubic yards of soil (also not mentioned in the ESEE). This total figure represents over six times the amount of material to be removed from the site from what was considered by the County in the ESEE. • In contrast to the original limited estimate of the amount of material to be mined and the past operator's estimate of completion in eight years from its operations beginning in January 20, 2009 Page 3 • 1997, the new proposed amount of material to be mined will take another 45 Years at the rate it is currently being removed. 2) The rate of removal of material and number of truckloads has dramatically increased. Where only 73,463 cubic yards of material was reportedly removed in the four years between 2002-2006 (according to Latham), Latham removed 93,334 cubic yards in 2006- 2007 alone. Based on these figures, the use of 10-ton trucks and 250 work days per year, there is an increase in traffic from seven truck trips per a day by Cascade Pumice to an average of 36 truck trips per day by Latham. It should also be noted, though, that Latham is using this site for dumping excavation material from its excavation projects in Central Oregon, adding more truck trips and another use not anticipated by the ESEE. Observations have been made of over 100 trucks entering or exiting the site on any given day. This substantial increase in truck traffic not only congests the local roads but also adds substantial noise to the area. Further, virtually all of these trucks are apparently being routed to the intersection of O.B. Riley Road and Highway 20 which is already a failing intersection (O.B. Riley Road is opposite Cook Avenue).. 3) An additional substantial change with this new application is the proposal to remove overburden and soil that had been planned by Cascade Pumice to be used in reclaiming the site. Cascade Pumice submitted plans to the Department of Geological and Mineral Industries (DOGAMI) that it was going to retain the overburden and topsoil for reclamation and reshape the excavated hill. Though Latham originally proposed reshaping the landscape to a 3:1 ratio, it now proposes removing the overburden and soil and leaving the unsightly headwall that currently exists. 4) Also not considered by the ESEE is Latham's proposal to expand the height and scope of the headwall so that it would be even more visible to Tumalo State Park and surrounding lands. The expansion of the headwall will also increase the noise and dust in the area. 5) Again not addressed by the ESEE is the Latham proposal for crushing of material onsite which will add to noise and dust. Though there is dispute, as discussed below, as to whether or not the ESEE allows crushing, there is no dispute in the record that crushing has not been done for the past 18 years on this site. 6) The ESEE recognized noise and dust as important concerns but only addressed them in the context of the mining of 750,000 cubic yards of pumice and 10,000 cubic yards of aggregate, not 4.2 million of cubic yards of tuff, pumice and soil, with associated increased truck traffic, noise and dust. 0 January 20, 2009 Page 4 • Hoffman Issues on Appeal. There are several critical issues on appeal requiring rejection of these applications. See the attached memoranda addressing these issues: 1. A new ESEE is needed where so much of what is proposed is beyond the scope of the 1990 ESEE. As reflected in the above discussion, there are many differences between what the Applicant is proposing and what the nearly 20-year old ESEE contemplated. 2. The County's requirements on reclamation are not met. The County Code and the ESEE for this site require extensive information on what reclamation is proposed for the site and further require ongoing reclamation. What the Applicant submitted to DOGAMI as its reclamation plan turned out to be so inconsistent with what the Applicant has proposed to the County that DOGAMI is going to require a new reclamation plan. Though the County Code requires this information as part of these land use applications, the Applicant has not provided it. Nor has ongoing reclamation been carried out at the site. 3. Crushing should not be allowed where the ESEE does not designate this site for is crushing. Though the County Code is clear in only allowing crushing at a mining site where the site specific ESEE has "designated" it for crushing and though crushing is not specifically designated in this ESEE, the Applicant argues that crushing is allowed since the ESEE allows "processing." Reference to a broader term of "processing" does not constitute "designation" of the specific activity of "crushing." 4. The applications should be denied where they fail to provide critical information on what is to occur at the site. One of the major difficulties in this case as it was being heard by the Hearings Officer was the number of modifications of the Applicant's proposals. Unfortunately, the Hearings Officer in her decision failed to clearly lay out exactly what the Applicant was proposing and elected instead to merely refer and limit her decision to whatever the Applicant was proposing. That is clearly not adequate here where so much is unknown and so many new uses are to be carried out. Among the matters requiring clarification, these are absolutely essential: A. The Applicant must provide an updated reclamation plan that mirrors what it is proposing. B. The Applicant needs to exactly define what uses and equipment it proposes for • the site. January 20, 2009 Page 5 • C. There must be a clear designated border of the extent of any mining being allowed to show what is visible from Tumalo State Park (as conditioned by the Hearings Officer). D. The northern boundary screening required by the Hearings Officer must be shown and described in a site plan. E. The location and types of materials to be mined and processed must be identified, including designation of proposed slots, stockpiling and reclamation. F. All current areas that have supposedly been reclaimed and all areas currently under reclamation should be identified. G. Noise impact assessments must be done for properties where pre-1990 houses are located. Again, for greater clarity in describing these issues, we are submitting a separate memorandum that addresses the inadequacies of the site plan and the Hearings Officer's designation of what is allowed on the site. 5. The applications and the Hearings Officer's decision fail to adequately address the issue of traffic impacts. There are several issues with regard to traffic impacts which the Hearings Officer did not address in her decision. First, as mentioned above, there is an increase in truck traffic that will impact an already failing intersection in Tumalo. Second, there is a substantial increase in truck traffic resulting in greater noise to the area and in localized safety. This issue is also separately addressed in an attached memo. 6. The applications should be denied where fugitive dust emissions are not resolved. See the attached memorandum regarding the issue of fugitive dust. Photos of dust clouds from the mine blowing over Tumalo State Park, the Deschutes River and adjoining lands are in the record. 7. Conditions of approval of the Hearings Officer are inadequate. The conditions of approval by the Hearings Officer are inadequate in a number of respects, including in failing: 1) to define exactly what uses are allowed on the site; 2) to specify how dust control is carried out; 3) to require and describe what maintenance will be required for screening methods; 4) to limit use of a proposed portable scale; and 5) to describe what permissible equipment is allowed. See the attached memorandum on inadequate conditions of 0 approval. January 20, 2009 Page 6 • The Applicant's Appeal Issues Are Not Justified. The Applicant is incorrect in its appeal assertions that the Hearings Officer erred, including in defining the scope of noise and dust-sensitive uses, in requiring that no expansion of the mine be visible from trails in the Park and in limiting the location of the crusher and washer to the southwestern processing site. While we continue to believe that the application should actually be denied, if it is approved then these conditions are absolutely essential to be preserved and, in fact, expanded upon. See the attached memorandum addressing the Applicant's appeal issues as raised in its motion for reconsideration of the Hearings Officer' decision. Conclusion. Based on the above and attached, these applications should be denied. Any such proposal should require a new ESEE in which all economic, social, environmental and energy impacts and consequences can be assessed. In the alternative, should the Board approve these applications, then the Hearings Officer's conditions should be upheld and made more detailed and enforceable. Very truly yours, PAUL DEWEY PD:ao Enclosures cc: Clients 0 • 1. A NEW ESEE IS NEEDED WHERE SO MUCH OF WHAT IS PROPOSED BY THE APPLICANT IS BEYOND THE SCOPE OF THE 1990 ESEE FOR THIS SITE. The Hearings Officer erred in describing this issue of whether the ESEE should be amended, contending there was no basis for opponents to achieve an amendment of the ESEE in this process. The actual issue here, however, is whether the Applicant needed to have an amendment of the ESEE for its proposed uses that were clearly not contemplated in the original ESEE. The point is that the Applicant should have been required to apply for a plan amendment of the ESEE. (Note that the ESEE is a part of the County's Comprehensive Plan.) The County also has the authority to require a new ESEE and should do so. The cover letter submitted with this memorandum lists the major ways in which this application is beyond the scope of the ESEE. In response to Opponents' arguments that Applicant is limited by the 1990 ESEE in what it can do, Applicant argued for a broad interpretation of the ESEE, asserting that the County in conducting its ESEE analysis in 1990 did not require extensive information on the quantity and quality of a resource (5/6 Applicant, p. 4), that the County "adopted a low threshold for determining resource significance" (5/6 Applicant, p. 5), that the lack of specificity "necessarily resulted in a more or less pro-forma, generic analysis of conflicts and ESEE consequences" (5/6 Applicant, p. 5), and that the assessment of impacts in the ESEEs was mostly formulaic in manner." (5/6 Applicant, p. 6) The Applicant further argued that such a general assessment was • all that was required for Goal 5 and stated: "[T]he County's ESEEs have no role other than as a findings document to support the County's decision on individual sites. Nothing in the language of Goal 5 or its implementing rule gives the ESEE a continuing role in the implementation of the program to achieve the Goal. Nothing in the County's ordinances implementing Goal 5 give the ESEE the broad limiting role that the Opponents assume it to have." (5/6 Applicant, p. 6) A fundamental problem with the Applicant's argument is its failure to acknowledge that the ESEE serves another role under DCC Chapter 18.52 in this land use application process than it may have had under the Goal 5 approval process. Whether or not the ESEE may have been adequate to satisfy requirements of Goal 5 in 1990 and whether or not it was "generic" and "formulaic" in doing so, that does not supplant its separate extensive role in the requirements of DCC Chapter 18.52. Under this chapter, the scope of the ESEE limits what can be done at this site. DCC 18.52.010(D) states that the Surface Mining Zone is to "allow the development and use of • identified deposits of mineral and aggregate resources consistent with Statewide Planning Goal Paul D. Dewey, OSB 478178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 • 5." (Emphasis added.) The Goal 5 planning document here was the ESEE which identified the kinds and amounts of resources. Throughout DCC Chapter 18.52, the ESEE is clearly utilized as the limiting factor in controlling what may occur at a mine site. DCC 18.52.020 provides that "setbacks, standards and conditions" in "the site-specific ESEE" are controlling over such criteria in the Code and provides that the site-specific ESEE analysis shall control if there is any conflict. DCC 18.52.050(B)(2) allows "[c]rushing of mineral and aggregate materials on sites designated for crushing in the ESEE analysis." (Emphasis added.) DCC 18.52.080(E) requires for a site plan application: "A description of all potential impacts of the mining activities identified by the ESEE analysis for the specific site and how those impacts are addressed." (Emphasis added.) DCC 18.52.100(B) requires review of "the proposed site plan's conformance with the ESEE analysis for the site." (Emphasis added.) Modifications to the site plan may be made as "necessary to fulfill the requirements of the site-specific ESEE analysis." (Emphasis added.) Under DCC 18.52.100(J) the Applicant must demonstrate that drilling and blasting "are allowed under the site-specific ESEE analysis." (Emphasis added.) The Applicant must also prove under • DCC 18.52.110(P): "All impacts of the mining activities identified in the ESEE analysis for the specific site are addressed and have been resolved at the time of site plan approval or before the start of mining activity." (Emphasis added.) DCC 18.52.140(A) states the applicable conditional use criteria for "[w]hen a site has been designate d for crushing of mineral and aggregate materials under the site-specific ESEE analysis." (Emphasis added.) Where Chapter 18.52 so often requires that activities be designated or allowed in an ESEE in order that they may be permitted at a mine (crushing, drilling and blasting) and where the Chapter provides that the "site-specific ESEE" impacts and requirements are controlling, the Applicant has the burden of showing that these criteria are met. The Applicant cannot use as an excuse that the ESEE was so "generic" or "formulaic" that it didn't get around to specifically allowing what Applicant is applying for that it did not allow more types of activities, more kinds of materials to be mined and more volume of materials to be mined at the site than it does. Chapter 18.52 in utilizing the ESEE as a limiting factor imposes upon the Applicant the obligation to prove that what it is seeking is actually allowed by the ESEE. The Deschutes County Code is clear in requiring that an Applicant for site plan and other approval at a mining site must comply with the site-specific ESEE for that site. For several • Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 2 • reasons, the Applicant's modified application is far beyond what was contemplated or allowed in the ESEE. Amount of Material. The ESEE is clear in identifying 750,000 cu. ft. of pumice and 10,000 cu. ft. of sand and gravel as the resources to have been mined at this site., It was on the basis of these inventory numbers that the ESEE analysis was done. Now the Applicant proposes mining 4.2 million cu. yds. of material. Such a substantial change in inventory requires a new ESEE. Several provisions in Ordinance No. 90-029 describing the ESEE analysis for mining sites emphasized the role played by the inventory in the ESEE. The Ordinance states: "Goal 5 in the Oregon Administrative Rules OAR 660-16-010 et. seq. have been followed in this process as follows: (a) An inventory of significant or important mineral and aggregate resources has been adopted as Ordinance No. 90-025 that determines the quantity, quality and location of each mineral or aggregate site, as required in OAR Section 660-16- 000." (p. 6) The Ordinance further states: • "During the current inventory process, sites were identified for inclusion based upon the quantity, quality, and location of the mineral and aggregate resource without reference to whether the site was currently zoned for surface mining or not." (p. 7) The Ordinance further describes the "GOAL 5 PROCESS" as including a four-stage analysis. The first stage is the "Inventory" in which the development of the resource inventory is determined based upon the quality and quantity of the resource. (Ordinance, App. A-1, p. 1) Under the heading of "Determination of Relative Values of Resources and Conflicting Uses," the Ordinance's description of the Goal 5 process states that the relative value of a site is determined by several quantitative factors. (Ordinance, App. A-1, p. 7) Based upon the quantity and quality of the resource, the County did an analysis of relative costs and benefits related to protecting this site as well as protecting surrounding resources such as Tumalo State Park, residential uses and agriculture. Where the County estimated impacts to the surrounding area based on the inventory in the ESEE, any mining beyond those inventory amounts should require a further ESEE analysis. The mining approved in 1997 by the County was for 750,000 cu. yds. of pumice. That was the site plan approval request and the approval by the County was for what was applied for. (Board Decision in SP-95-10, p. 4) A condition of approval was that the mining would be in accordance • with the submitted application. Icy, p. 24. In addition to the cubic yard limits in the ESEE, the Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 • background materials presented to the Board of Commissioners predicted mining for only eight years. The ESEE also noted that surface mining is a transitional use. (ESEE, p. 10) The 1997 approval of Cascade Pumice's operations was for 750,000 cubic yards of pumice with an expected completion of mining within eight years. (1997 H.O. Decision, p. 4) The Applicant's proposal would extend mining for 45 years at its extraction rate. An additional ESEE analysis is particularly needed here where the ESEE specified 750,000 cu. yds. of pumice and 10,000 cu. yds. of sand and gravel in 1990, and the Applicant now proposes in 2008 to mine 3.4 million cu. yds. of tuff, 700,000 cu. yds. of pumice and 100,000 cu. yds. of top soil. The mining of this amount of material is going to fundamentally alter the character of the area. To mine this amount of material will require many, many years of mining, a substantial alteration of the landscape of the area (including bringing down much of the remaining hillside) and continued noise, visual and dust pollution of the surrounding area. This is far more than was ever contemplated by the County in 1990. Tyne of Material. In addition to the increased quantity of material to be mined, the Applicant has added soil and tuff which were materials not mentioned or analyzed in the 1990 ESEE. Only two resources are identified in the ESEE, aggregate (sand and gravel) and pumice. (ESEE, pp. 1-2) The ESEE Findings and Conclusions found that the site has two types of mineral resources, pumice and sand and gravel, and specified their quantities as 750,000 cubic yards of pumice and 10,000 cubic yards of sand and gravel. Because the sand and gravel resource "has largely been mined • out," the ESEE analysis focused on the pumice. (ESEE, p. 2) The ESEE analysis considered economic and social consequences only of pumice (ESEE, pp. 8-9) and finally concluded that the aggregate resource should be protected. The ESEE adopted a "Program To Meet The Goal" to protect the aggregate resource only. Not only do the effects of mining this other material need to be analyzed in a new ESEE, but the fact that in previous reclamation plans these materials were anticipated to be used for reclamation must be addressed. The mining of these overburden materials is not addressed in the ESEE and is significant because these materials were contemplated to be used for reclamation on the site. The Applicant even acknowledges: "As proposed and approved by the Board, the mining operation involved removal of top soil and overburden to a depth of about 30-35' and to extract a pumice layer of about 20' thick. Excavation was to take place in "slots" of approximately 300' by 400' not to exceed 160,000 square feet in size. Top soil and overburden were to be stockpiled in berms adjacent to the spot for use in future reclamation." (2/19 Modification, p. 9) (Emphasis added.) The Hearings Officer's decision (adopted by the Board) allowing the Cascade pumice operation also provided, as described by the Applicant: "Reclamation of each slot would occur as the operation moved into subsequent slots. The reclamation would consist of replaced stockpiled overburden and 4 Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 • topsoil in the slots with the excavating equipment contouring the site and the site being re-seeded with native grass species." (2/19 Modification, p. 9) (Emphasis added.) Crushing. Additionally, there is no discussion of any crushing in the ESEE and everyone acknowledges that no crushing has been going on at the site except for the illegal crushing which the Applicant was conducting before a Code compliance complaint. The crushing proposed by the Applicant requires a new ESEE to assess costs and benefits associated with this new activity. The Code requirement for designation of crushing in an ESEE is discussed in a separate memorandum. Conclusion. This ESEE is nearly 20 years old and before allowed uses should be expanded there should be a post-acknowledgment plan amendment. The sensitive surrounding resources have become even more valuable and sensitive over time. The population in Deschutes County in this area has substantially grown, and the nearby Tumalo State Park and Deschutes River are used by thousands of people. • • Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 5 • 2. THE COUNTY'S REQUIREMENTS ON RECLAMATION ARE NOT MET. The Hearings Officer erred in deciding that the County had no say on the site's reclamation plan, apparently ruling that DOGAMI has exclusive jurisdiction over reclamation. However, jurisdiction over reclamation is not exclusive to DOGAMI and there are specific County Code provisions requiring County review and approval of various reclamation procedures. Furthermore, the County Code requires that the Applicant supply information in its applications consistent with the reclamation information provided to DOGAMI, which has not been done in this case. See the attached letter from DOGAMI stating that the Applicant is apparently waiting until after the County's decision to even make an application for a new reclamation plan. Note that this DOGAMI letter makes the point that clearly a new reclamation plan is needed. Latham Excavation in the past has given inconsistent information to DOGAMI and the County on its reclamation plans. The Applicant in its history and associated maps apparently attempts to show that because mining occurred prior to the 1972 reclamation law or was done by others prior to 1980 that the Applicant is somehow not responsible for all the reclamation needed at the site. Whatever Applicant is suggesting, it is incorrect for it to ignore again that reclamation work is not the exclusive province of DOGAMI. The County rules require reclamation of a site and even ongoing incremental reclamation, no matter who has mined in the past or when. DCC 18.52.080(B) requires all information required for a site reclamation plan, 18.52.110(K) limits an extraction site to five acres, 18.52.130(B) requires a site reclamation plan even when one is not • required by DOGAMI and the ESEE requires ongoing incremental reclamation. No further mining should be allowed under the ESEE or the 1998 Cascade Pumice approval until the ongoing incremental reclamation is caught up. It is also in part due to the failure of conducting ongoing incremental reclamation that there has been such an environmental dust problem. Spraying hydromulch around every six months is no substitute for actual reclamation. The Applicant argues that reclamation activities are under the exclusive jurisdiction of DOGAMI. While approval of the final reclamation at the site may be the province of DOGAMI, the ongoing incremental reclamation is a specific requirement of the ESEE. No information has been provided on where and how this ongoing reclamation has occurred, is occurring or will occur. As is clear from aerial photos, far more than five acres have been mined and are not reclaimed. Any DOGAMI authority does not erase the County's interest in regulating what can occur on the mining sites. Just because DOGAMI may approve a certain kind of reclamation, that does not mean that the County has to allow the mining activities that would result in such an unacceptable reclamation scenario. Attached is a memo done by Karen Green for the County explaining that while DOGAMI approves reclamation plans, the County must approve land use site plans which also cover reclamation issues. These reclamation issues are land use issues. • Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 oT E S December 12, 1988 ■ EXHIBIT "C" Legal CounsE Administration Bldg. / Send. Oregon 97701 / (5031388-6623 MEMORANDUM: TO: . BOARD OF COUNTY. COMMISSIONERS FROM: KAREN H. GREEN,)E~~ Assistant Legal Counsel Richard L Isham. Councy Legal Counsel Karen H. Green. Ass:scanc Legal Counsel Bonnie Cargill, Legal Assistant SUBJECT: Surface Mining Goals and Policies FILE NO. 1-534 . COPY To: Craig Smith, Planning Director Chuck McGraw, Associate Planner Last week, the Planning Department finally received written comments from DOGAMI on the surface mining goals and policies. DOGAMI raised three concerns, two of which I believe already are adequately addressed in the policies. However, the third concern requires an additional modification to the policies. DOGAMI stated that Policy # 20 implies that the county will assume responsibility for approving mining -reclamation plans,y as that term is used in the mining statutes. The policy was intended to state that DOGAMI-approved reclamation plans were required, as well as a county-approved land use site plan which also would cover reclamation issues. ® Accordingly, Policy # 20 has been modified to clarify that the county will approve site plans, but not reclamation plans which must be approved by DOGAMI. With this final modification, I would recommend that the Board adopt Ordinance No. 88-040, which amends the comprehensive plan to adopt the attached surface mining goals and policies. ® KHG 1 Exk.,61t 13 IST tf • 3. CRUSHING SHOULD NOT BE ALLOWED WHERE THE ESEE FOR THIS SITE DOES NOT DESIGNATE IT FOR CRUSHING. The Hearings Officer erred in approving crushing with these applications by concluding that the ESEE did not prohibit it. The actual issue is whether or not the ESEE "designated" crushing as a use. DCC 18.52.050(B)(2) and 18.52.140(A) require that crushing occur at only sites "designated" for crushing in the ESEE, but it is not so designated in this site-specific ESEE. DCC 18.52.050(B)(2) clearly requires that crushing of mineral and aggregate materials be limited to "sites designated for crushing in the ESEE analysis in the surface mining element of the Comprehensive Plan." (Emphasis added.) Additionally, DCC 18.52.140(A) provides: "A. Crushing. When a site has been designated for crushing of mineral and aggregate materials under the site-specific ESEE analysis on the surface mining element of the Comprehensive Plan, the following conditions apply:...." (Emphasis added.) A review of the ESEE shows that crushing is not specified as allowable on this site. See ESEE, at p. 12. Despite the fact that the ESEE does not explicitly designate crushing as required in DCC 18.52.050(B)(2), the Hearings Officer concluded that the definition of "Surface mining, processing" in DCC 18.04.030 includes "crushing." That definition, though, is not controlling here. Rather, Section 18.52 provides that the controlling document here is the ESEE and Section 18.52.020 provides that where there is a conflict between the site-specific ESEE analysis and the provisions of Chapter 18, "the site-specific ESEE analysis shall control." The Hearings Officer cannot turn to definitions in the Code to provide what the ESEE did not designate. It should also be noted that the ESEE, after providing only for "processing onsite" at page 12, then went on to discuss at page 13 the general surface mining ordinance that allows mining activities "such as extraction, processing, crushing, blasting, and other mining-dependent uses," at page 13. (Emphasis added.) Where the ESEE listed "processing" and "crushing" as separate kinds of uses, it should not be inferred that the ESEE elsewhere meant the term "processing" to include "crushing." That ESEE description of the general activities allowed by the Surface Mining Ordinance shows that the Board in this ESEE contemplated and used "processing" and "crushing" as independent terms and activities. The Board's usage of only the term "processing" on the previous page therefore should not be read as including other activities such as "extraction" or "crushing" or "batching." Since the DCC specifically requires that crushing be "designated" in an ESEE, the ESEE does not explicitly allow crushing, and the ESEE discusses "processing" as something different than "crushing," then the Hearings Officer is incorrect in her liberal interpretation that the ESEE allows crushing. • Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 • Addressing a similar issue of drilling and blasting (which DCC 18.52.110(J) also requires be allowed under the site-specific ESEE analysis), Hearings Officer Karen Green found (and the Board affirmed) that where the ESEE did not allow it that it would not be permitted. See 2/19 Modification, p. 26. Looking to a general code definition of "processing" or an OAR definition of "processing" as including "crushing" ignores the basic rules of statutory construction stated in PGE v Bureau of Labor and Industries, 317 Or 606, 610-612, 859 P2d 1143 (1993). The focus of interpretation has to be on the text and context of the document being interpreted. DCC 18.52.140(A) requires looking at the "site-specific ESEE analysis" for a particular mine site. The language of the ESEE controls here, not definitions of a term that are found in other documents. There is no basis to look at interpretations of terms outside that ESEE where "crushing" is not "designated" in it and where, again, the ESEE uses them as different terms. The Applicant argued for an even larger context of looking at other ESEEs adopted in Ordinance 90-029. It asserted that "crushing" is not specified in those ESEEs. But whether or not "crushing" is actually allowed at these other sites is unknown, and even if it is at some of them, that does not mean that such crushing is legal or meets the requirements of DCC 18.52.140(A) and 18.52.050(B)(2). The Code language is as it is and requires that "crushing" be "designated" in the ESEE. Looking further afield than the site-specific ESEE analysis for Site #303 is not only inappropriate but can yield different uses of the terms. For example, Ordinance 90-014 includes • a definition of "Surface Mining, Processing" as including "crushing" then provides for the following uses in various zones: "Storage, crushing and processing of minerals." (Emphasis added.) Where the definitions and uses of terms are not consistent in outside documents they should not be used to define terms in the site-specific ESEE for Site #303. Furthermore, there is no justification for the Hearings Officer's approval of the rock crusher which the Applicant claims is necessary to crush only incidental aggregate materials. There was no showing that there would be any such aggregate materials and the approval merely facilitates further illegal crushing of excavated rock being brought onto the site by Latham Excavation. Paul D. Dewey, OSB #78178 2 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 • 4. THE APPLICATIONS SHOULD BE DENIED WHERE THEY FAIL TO PROVIDE CRITICAL INFORMATION ON WHAT IS TO OCCUR AT THE SITE. The Hearings Officer failed to address opponents' concerns that the site plan and other materials submitted by the Applicant are not sufficient to comply with the site plan application requirements of DCC 18.52.080 and other information requirements of the Code. Critical inadequacies concern the reclamation plan; what uses/equipment will be on the site; what is the designated border for the extent of any mining on the site; what screening will occur on the northern border; the location and types of materials to be mined including designation of proposed mining slots, stockpiling and reclamation; what areas are already reclaimed or being reclaimed; and noise impact assessments on properties where pre-1990 houses are located. A. Reclamation Plan. Probably the most glaring example of inadequate and inconsistent information being provided by the Applicant is with regard to the reclamation plan it submitted to DOGAMI and the County. As reflected in the attached DOGAMI letter of September 15, 2008, this information is inconsistent with what the applications are proposing and the Applicant needs to do another reclamation plan. While it is apparently adequate for DOGAMI to later receive a reclamation plan, the County's Code is clear in requiring that this information be provided as part of this application. Not until the Applicant has submitted the information it will provide in a reclamation plan will it be submitting a complete application in this matter. Among the required information elements not provided by or else misrepresented by the Applicant, as referenced in the "Operating and Reclamation Plan" submitted to DOGAMI and attached to this memorandum are the following. This is a partial listing of the misinformation, organized according to the headings (in quotes) in the DOGAMI Plan. 1. Inconsistent and Inadequate Information Has Been Provided on Timing, Mining, Processing and Stockpiling 43 Reclamation Timing" The Applicant states at page 1 on the form that reclamation will be concurrent with mining and describes "the procedure for concurrent reclamation" as "Open slot/remove pumice/close slot with burden." There has been no showing in this case, however, of any reclamation that has occurred concurrent with mining. There has also been no showing of the location of the slots or the availability/adequacy of the "burden" to do the reclamation. As explained under #4, below, this procedure does not even apply or work on the Applicant's actual "side hill cut" operations. • Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 "#4 Operating Plan" • "a Mining Method" The Applicant has identified on page 1 of the form the only mining method it has used or will use as "Slot mining." That is not an accurate description of the actual mining of the site which has created a vertical 100-foot-tall headwall cut into the hill. That mining method is a type listed on the Reclamation form as "side hill cut." The Applicant itself describes its mining as a "sidehill pit" at page 7 of the April 8, 2008, Latham Excavation letter signed by Mr. McClain. Also, the method of "hill top removal" is apparently planned. The latest site plan map shows the Limits of Proposed Mining Activity" as including a substantial amount of the remaining steep hillside. The Applicant also testified at the last hearing that as it cuts further into the hillside it will be removing the trees and other vegetation on the hill. In an unsigned document entitled, "Applicant Latham Excavation Response to Opponent's Arguments, April 15, 2008," the Applicant states at page 1: "Applicant is not proposing to mine along the ridge, but is proposing to stay within the footprint of the approval issued under SP-95-10." That does make sense since the Applicant portrays on its Site Plan Map a mining area boundary that includes a substantial amount of the ridge that has not been previously mined. Additionally, the Applicant in an April 8, 2008, letter signed by Mr. McClain stated, at page 3: "We do anticipate cutting down trees in the future on the top of the ridge within the permitted area as we cut back further into the hill to reach the Tumalo Tuff and the Bend Pumice below." This is another example of the Applicant presenting inconsistent and unclear information. The 1997 mining approval and the current reclamation plan submitted by the Applicant call for slot mining. But then the Applicant says its mining is a sidehill pit. In an April 8 letter it says it will cut into the hill and remove vegetation on top and then in an April 15 letter it says it is not proposing to mine along the ridge. Identification of the method of mining and where it will occur is critical because it determines what impacts there will be and what method of reclamation must be used. "c) On-Site Processing" The Applicant only identifies "dry processing" on page 1 of the site reclamation plan form, though in its April 8 letter signed by Mr. McClain it states at page 5 that it will have a "washer" to wash the tuff and develop a sand product. Paul D. Dewey, OSB #78178 2 . 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 "I) Disposition of Removed Vegetation" The Applicant represents on age l o p f the form that all vegetation is to be ground and mixed with topsoil and overburden for reclamation. It is has told DEQ, though, that all vegetation is being ground and removed to the County landfill. Further, it plans to sell and remove the topsoil and overburden. "j) Stockpiles" The DOGAMI form requires on page 1 that estimated volumes of soil, overburden, rock waste or crusher reject dumps or stockpiles be given and that the location of each be shown on a mine plan map. No volumes for each of these materials or their separate locations for stockpiling have been provided by the Applicant to the County. "i) Storage Areas" The DOGAMI form on page 1 requires that storage areas of soil or subsoils to be used for reclamation be located on a mine plan map. That also has not been provided to the County. "m) Erosion of Topsoil Stockpiles" In response to the DOGAMI requirement that measures be identified to reduce erosion of topsoil stockpiles, the Applicant states on page 1 of the form that the topsoil will "be posted and seeded • with ryegrass." The Applicant has not, however, provided any evidence to the County that such measures have been done or where. "#9 Reclamation Techniques" "a) Use of oversized rock" The DOGAMI form on page 3 requires identification of what will be done with oversized rock not used during mining. The Applicant's response is, "Does not apply," though it is bringing onto the site thousands of tons of oversized rock. The Applicant states that this oversized rock is ostensibly for reclamation, but the Applicant does not explain what will be done with this rock and, if it is to be used for reclamation, how. "b) Depth of soil replaced on area to be reclaimed" The Applicant states on page 3 of the form that the average depth of soil replaced on the area to be reclaimed is 20'. There is no evidence that any area that is reclaimed has that depth of soil or that there is sufficient soil to do needed future reclamation. This is particularly questionable since the Applicant intends to sell off the soil. The April 30 Siemens Report (Ex. E to the Application) states that there is 100,000 cu. yds. of soil. 3 • Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 The Applicant also states on its DOGAMI form that no additional materials will be utilized as a • soil substitute to complete the revegetation. In its "Applicant Latham Excavation Response to Opponent's Arguments April 15, 2008," at page 1, the Applicant states: "The fill material is not committed to reclamation but is going to be mined and processed." "d) Waste products" The Applicant states on page 3 of the form that there will no waste products such as tailings and crusher rejects. That is not at all consistent with its proposal to have crushing operations. The Applicant has failed to provide any information about the quantity, location and handling of the waste products. "e) Decompacting, processing and stockpile sites" The DOGAMI form at page 3 requires information on how processing and stockpile sites will be reclaimed and specifically how they will be decompacted prior to topsoiling/seeding so that they can be revegetated. The Applicant has not given that information to the County or even to DOGAMI, stating, "Does not apply." 2. Inconsistent and Inadequate Information Has Been Provided on Reclamation Again, these information failures are organized and discussed according to headings in the DOGAMI Plan. "112 Reclamation Procedures - Impoundments & Pond Decommissioning" The Applicant at page 3 of the form again states that this information is not required since it is not going to have ponds, but that is based on the assumption that it is not going to have any washing. However, the Applicant has made clear that it is going to have washing. Further, as explained by Mr. Gisler at the last hearing, a pond is needed to settle out the fine particles in the dust. Putting wash water on a road just releases fine dust when the water evaporates and the dust is run over by equipment. "#13 Reclamation Procedures - Land Shaping" DOGAMI requires on page 4 of its form: "Long continuous slopes should be avoided or broken up with surface contours, ditches or complex slope shape." 4 • Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541)317-1993 "a)1) Steepest excavated slopes left after mining" The Applicant states that the steepest excavated slopes will be the-maximum allowed of 1-1/2:1. However, the Applicant's current excavated slopes exceed that maximum and are nearly 1:1. The Applicant's headwall excavated slopes do not comply with DOGAMI requirements. "a) 2) Steepest fill slopes left after the mining" The Applicant does not provide this information to DOGAMI, but in its April 30 Siemens Report, at page 3, it states that the final slope configuration will be 3:1. There is no explanation, however, as to how much material will be required to create that fill slope and whether there is material onsite to accomplish it. See the Ex. B Golder report. 3. Inconsistent and Inadequate Information Has Been Provided on Water DCC 18.52.080(B) requires not only all information required for reclamation in a site reclamation plan by DOGAMI, but "all information required for a site reclamation plan by DOGAMI." DOGAMI requires the following information on management of water in a site reclamation plan, at page 5: "#5 Water Resource Protection" "c) Process water containment' "d) Storm water" "e) Pond to contain water" Though the Applicant intends to use process water, it states on the DOGAMI form that process water will not be contained onsite and that there will not be a pond to contain water. When asked by the DOGAMI form to explain discharge procedures if the process water is not going to be contained onsite, the Applicant gives a non-answer: "Storm water is absorbed in porous pumice and interior of site." What is going to be done with the process water? 4. Inconsistent and Inadequate Information Has Been Provided on Visual and Noise Screening Again, DCC 18.52.080(B) requires all information be provided to the County that is required in a site reclamation plan by DOGAMI. The DOGAMI site reclamation plan requires addressing visual and noise screening issues on page 4. Paul D. Dewey, OSB #78178 5 • 1539 NW Vicksburg Bend, Oregon 97701 (541)317-1993 • 44#7 Visual and Noise Screening" "a) Natural vegetative screen" The Applicant misrepresents to DOGAMI that a natural vegetative screen currently exists along the permit boundary, as identified on a map that has not been provided to the County. As can be seen on the latest site plan maps submitted by the Applicant, however, there is essentially is no vegetative screen currently along almost half of the north boundary, particularly on the northeast. "b) Establishment of vegetation" The DOGAMI form at page 4 asks what vegetation is to be established "to develop a visual screen for the operation" and the Applicant states, "Planting of trees on north property line." The Applicant has not provided to the County, as required by the DOGAMI form, a description of the type and density of vegetation" or shown the location on a mine map. There is also no showing that the height and density of the planted trees will actually provide effective visual and noise screening. B. What Uses and Equipment Are Being Allowed. There is no clear description of what uses and equipment are being allowed here. The Hearings Officer merely refers to the proposed uses and equipment as stated in the Applicant's materials. However, the Applicant's materials include several modifications to its proposal and there is no clear single statement of what is being allowed with these applications. Also, the record is extremely long and it would be difficult for anyone to determine, after the fact, what was really part of the Applicant's proposal. C. The Boundary of the Mining Operation Needs to Be Established. The Hearings Officer in one of her conditions of approval requires that the Applicant and State Parks decide on where the boundary should be for any expansion of mining, depending on what is visible from the trails in the State Park. She calls for an amended site plan to be submitted on that basis. While we support that condition, the public has a right to submit comments on that amended site plan and should have the opportunity to participate in any such proceeding. D. The North Boundary Screening Needs to Be Specified. The Hearings Officer also specified in a condition of approval that screening involving berms and/or vegetation should occur on the northern boundary with the Hoffman property. What exactly that screening is going to consist of and how it is going to look is not identified in the Hearings Officer's decision or in any application materials. The Hoffmans should have the opportunity to address and know exactly what kind of screening is going to be provided. . Paul D. Dewey, OSB #78178 6 1539 NW Vicksburg Bend, Oregon 97701 (541)317-1993 E. The Location and Types of Mining. The Applicant has still not clearly identified where its proposed mining, including its slot mining, is going to occur and where its stockpiling and reclamation are occurring. They should be clearly identified on the site plan. F. Areas Reclaimed and to Be Reclaimed. Despite the fact that the 1997 Board decision for this property approved of slots of only 160,000 square feet in size and despite the fact that the ESEE allows no more than five acres of the site to be in a disturbed condition at any time, clearly more land than that is currently disturbed on the site. The ESEE specified that there must be ongoing incremental reclamation, but the Applicant has not shown where that incremental reclamation is being done and the Hearings Officer failed to require it. G. Noise Studies. There is inadequate information to show compliance with noise rules where the noise studies of the Applicant on which the Hearings Officer relied were based on noise measurements at residences. As acknowledged by the Hearings Officer, noise-sensitive uses exist anywhere on the properties where pre-1990 houses are located. The Applicant's noise expert did not do an assessment of impacts on these properties. • Additionally, the Hearings Officer failed to require an assessment of the impact of an increase in traffic and its associated noise issues. Paul D. Dewey, OSB #78178 7 • 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 Operating and Reclamation Plan For sites in sensitive locations, additional information may be required. If more space is needed, attach additional sheets or use the blank sheet provided at the end of this form. r ~ ~J Oregon Department of Geology and Mineral Industries Mined Land Reclamation Program 229 Broadalbin Street SW Albany, OR 97321-2246 (541) 967-2039 Fax (541) 967-2075 I 1A• 16 (Rwimd WUMI) c: ...m u aW SaitigfybeFgU)aktop\Id xactumion Pbn (Stnlr.l6).doc Ex F Page of-1. MUCH OF THE INFORMATIONREQUESTED CANBE • EXPLAINED ON THE MINE PLAN MAP. See enclosure Map or Aerial Photo Requirements. 1. PRE-MINE CONDITIONS e) Has a wetland delineation been completed'! C1 yes Ono If yes, attach report. 0 Has a landslide investigation been completed on this property? ...........................................................0 yes 0 no If yes, attach report. 2. POST-MINING LAND USE • a) What is the planned post-mining beneficial use of the permit area? 0 Agriculture 1Qls 0 Range/Open Space 30% 0 Forestry 60% 0 Housing/Construction 0 Wildlife/Wetland 0 Recreation 0 Other The post-mining use must be compatible with the local comprehensive plan or have speck land-use approval. For significant aggregate sites zoned for mining, local government must determine the post-mining land use. 3. RECLAMATION TIMING a) How many days after mining is completed will reclamation begin? OR b) If reclamation will be concurrent with mining, explain the procedure for concurrent reclamation. Open slot/remove pumice/close slot with burden 4. OPERATING PLAN a) Mining method(s) to be employed (mark all that apply): 0 single bench 0 multiple bench 0 pond excavation 0 placer mine Cl side bill cut 0 hill top removal r 0 other: Slot mining Form SMLR-16 (Ro iud 4116101) C*M>ocomcmt and Satinpybcry\Ocaktoold Rec6nntion Plan (Swk-16).doc a) Current land use and zoning S_ b) Average depth of topsoil 5" - 1 g" c) Type and density of vegetation Juniper - sage brush native ass d) Are there any springs, seeps, intermittent or perennial streams on or near the site? ................................0 yes Ono If yes, list here and locate on mine plan map. b) Equipment to be used for mining: Dozer. Excavator. Loader. Scraper. Water Truck Highway Trucks C) Will there be on-site processing? ......................0 yes If yes, check type of processing: 0 wash water contained in a closed system source of water: 0 wash water discharged off site 0 dry processing l7 other: d) Will blasting be employed? .............................0 yes 0 no e) Distance to closest structure not owned by pemrittee. 250' 0 Disposition of removed vegetation. All veeetation eround and mixed with topsoil and overburden f reclamation g) Soil types which will be disturbed by mining, processing, or reclamation. Topsoil, overburden, pumice h) Average soil salvage depth 0'40' i) Overburden removal depth '-4 ' _ j) Will soil, overburden, rock waste or crusher reject dumps or stockpiles be created during mining? ................0 yes 0 no If yes, list the estimated volume of each at the end of this form and locate on a mine plan map. Additional information may be required for large dumps or those located on steep terrain. k) Will this plan require excavating across any property lines? ..........................................................................0 yes 0 no 1) How and where will soil or subsoils be stored for reclamation? Locate storage areas on mine plan insp. Stockpiles overburden to be moved throughout site to accommodate concurrent mine reclamation m) What measures will be taken to reduce compaction and prevent water and wind erosion of the topsoil stockpiles and when will they be implemented? Topsoil to be posted and seeded with rye grass to be rotected from traffic n) What will be the minimum property line setback: for the excavation 100' for processing or storage 100' ID No. 09-0124 Exhlblt Page ..s9----of 2--wom 0 no WATER RESOURCE PROTECTION a) Will mining occur below groundwater level?... 0 yes 0 no b) Will mine site dewatering be necessary?.......... O yes 0 no If yes, explain procedure and estimated depth to which water will be drawn down inside of the mine and where water will be discharged. A permit may be required from the Water WRD Resources Department for dewatering activity. c) Will process water be contained on site? 0 yes Ono d) Will storm water be contained on site? ..............0 yes O no e) Will a pond(s) be used to contain water? E3 yes Ono Explain containment procedures. Site will not be changed in a manner that will change existing drainage patterns. Contour ditching and water bars j) Will settling ponds/dams be constructed? .........0 yes 0 no State the number and size of the hwundment(s) and how they will be built. Will the pond be excavated or will berms be constructed? Locate on a mine plan map. k) If dams will be constructed, how high will they be and what is the maximum amount of water (in acre feet) to be impounded behind each dam? I fa dam is higher than l0 feet, and stores more than 9.2 acre feet of water, approval from the Water Resources Dept. is required prior to construction. W ,W 1) If berms or a dam will be constructed, describe construction details and attach a sketch showing construction methods. If the answer to c) or d) is no, please explain discharge procedures. Storm water is absorbed in porous pumice in interior of site. • A permit from the Department of Environmental Quality may be required for off-site discharger and is required DEQ for any discharge into public waters, wetlands, streams or takes. Contact DOGAMIfor these permits. f) Will any drainages/streams be relocated? 0 yes Ono If yes, complete Section 11. g) What will be the minimum undisturbed setback(s) of the operation from all stream(s) or drainage(s)? 500' List the name of stream(s) or drainage(s) and setback from each at the end of this form and locate on a mine plan map. h) How will the buffer(s) be identified and protected during mining and reclamation? Staking and flagging m) How deep will impoundment(s) be? n) If the impoundments) are to be removed upon completion of mining, how will they be drained and/or filled? o) Will settling ponds, wetlands, or a water impoundment be left upon final-reclamation? ...............................0 yes 0 no 6. GROUNDWATER INFORMATION a) Proposed mine depth 50' b) Groundwater depth 350' (Under static (pre-mine) conditions) c) What is groundwater depth estimate based on? Well lops d) Flow direction of groundwater, if known. Unknown e) Distance to closest well outside the permit boundary. i) Describe methods employed to control erosion in the permit . area. Be specific, i.e., seeding and mulching, sediment basins or ponds, contour ditching, waterbats, etc. Form SMLA-16 (Rcritd 4rW01) QtDATA%CDMCUENTSV,AMcClcin Inve TPm S%CWCa k Punicc%14 R"t=Mion Plea (SmN.16).dx I Wells within permit area must be shown on mine plan map. Attach a copy of the well log(s). `N _of Page VISUAL AND NOISE SCREENING Screening can be very effectively employed to isolate sites from public notice and to minimize noise from operations. . a) Does a natural landform or vegetative screen currently exist along the permit boun(kry? 0 yes O no If yes, what screen width will be maintained during mining? See map b) Will a berm and/or vegetation be established to develop a visual screen for the operation? 0 yes Ono If yes, describe the height and width of the berms and/or the type and density of vegetation; show location on mine map. (Crushed rock stockpiles, although not permanent, can also be used to reduce noise from the operation.) Planting of trees on north property line 8. EQUIPMENT AND STRUCTURES REMOVED a) Upon final reclamation, will all structures, visual berths, equipment, and refuse be removed? 0 yes 0 no If no, explain what will be left. 9. RECLAMATION TECHNIQUES • a) What will be done with oversized rock not used during mining? Does not apply b) What will be the average depth of soil replaced on the area to be reclaimed? 20' If less than 12 " of topsoil is available, a substitute material may be required. c) Will additional material be utilized as a soil substitute to . complete the revegetation? O yes El no If yes, specify type(s), amount(s), and source(s). d) Will any waste products, such as tailings, crusher rejects, etc., be generated during mining? O yes Ono If yes, what will be done with them? e) How will processing and stockpile sites be reclaimed? If they are to be revegetated, explain procedures which will be employed to decornpact areas prior to topsoiling/seeding. Does not apply 0 Form SMLR-16 (Revised 4126M) CADoeumrnu and ScitinpyPaIXOaktopUd Rectamuioo Plan (Smk-16).doc 10. REVEGETATION TECHNIQUES a) Species to be seeded/planted by type and amount. Ponderosa nine b) Describe method and time of year for planned planting. Auger/hand planted 12' lRacine c) List fertilizers and lime to be used (include amount). None d) List type and amount of mulch or other erosion control techniques such as erosion netting. None Vegetative survival comparable to the density of original ground cover will normally be considered acceptable. 11. RECLAMATION PROCEDURES - POST-MINE DRAINAGE CONTROL AND RECONSTRUCTION a) During reclamation, will stream channel and/or bank stabilization and rehabilitation be necessary?.... 0 yes Ono if yes, attach plans 0 n/a DSL A Division of State Lands' permit is required for relocation of all perennial and some intermittent water courses. b) How will surface water runoff and erosion be controlled upon completion of mining? Describe and list structures that will be used. Controlled on site - See 5 E 12. RECLAMATION PROCEDURES - IMPOUNDMENTS & POND DECOMMISSIONING a) Will dewatering be required? ............................0 yes 0 no b) Will it be necessary to backfill a water filled excavation pit or pond? .............................................................0 yes 0 no c) How will settling ponds be stabilized and revegetated? DNA d) How will quality of imported backfill be monitored to protect groundwater quality? DNA Monitoring may be required to ensure groundwater protection. EX Page of 13. RECLAMATION PROCEDURES - • LAND SHAPING Long continuous slopes should be avoided or broken up with surface contours, ditches, or complex slope shape. a) What will be the: i) -steepest above-water excavated slopes left after mining? (1 %::1 is generally maximum) /z : I- -steepest above-water fill slopes left after mining? (2:1 is generally maximum) b) What will be done to ensure the stability of excavated slopes? See mapMuring reclamation vertical rimrock areas maybe ten ened c) What will be done to ensure the stability of fill slopes? Seeding and•revegetation d) Will this site be shaped or backfrlled to blend in with surrounding topography? 0 yes Ono 14. POST-MINING WATER IMPOUNDMENTS) a) Number of impoundment(s) 0 b) Use of impoundment(s) DNA c) Total surface area in acres d) Average depth 15. OTHER PERMITS e) How much is the water level expected to fluctuate annually? What will be the steepest and flattest in-water slopes left after mining? Gene rall 3:1 in-water slopes are the steepest allowable, except off islands. To increase potential for wetland habitat establishment, S:1 to 20:1 slopes are needed. g) Will shallow ponds, shorelines, or other areas conducive to wetland plant development be left? ...................0 yes 0 no h) What will be the impoundment water source? A water right for the water source may be needed WR D from the Water Resources Department. i) What will be done for wildlife & fish enhancement, e.g.'fish structures, islands, peninsulas, and irregular shorelines? j) If wetlands are to be constructed, explain the methods and final configuration. In order to assist other agencies in the review of this plan and their ability to ascertain compliance with their laws, list all permits by type and number that are held (or applications filed) for this mine site or processing equipment (such as f ll/removal permits, water rights, air quality and stormwater or waste water permits). • en e.....::., a ermit..T...... ~ - - saps 1'. w-t "ed?•`,.=~. Deschutes County Mining Permit • V Form SMLR-16 (Revved 44&01) Q Exhibit C%Doeumau and Set%irV 4buX%D=ktop%1d Rwl&mmion PW (Sn*-I6).doe Page f -of 16LANDOWNER CONSENT 0.s surface or mineral rights owner, I concur with the proposed subsequent use for any mining operation and with the operating and reclamation plan as submitted. I also agree to allow access to the State Department of Geology and Mineral Industries or their contractor for reclamation of the mine site if it is declared abandoned by the Department of Geology and Mineral Industries. By my signature below, I certify that I have a legal right to sign this document. Apprnprkife signittures tyre needetl for EACH land parcel. I CONCUR (Surface Rights) Nallle (Please Print or Type) lai v ttment L C Signature /w r , Title Manager Date I CONCUR (Mineral Rights): Name (Please Print or Type) 0ain Inv/stments LC Siglature /t- 41-( Title Manager Date 17. APPLICANT'S ACCEPTANCE Name (Please Print or Type) 'M` k Latha Excavation. Inc. Signature~i✓L~ Title President Date 18. PREPARED BY (IF OTHER THAN APPLICANT) Nanle.(Please Print or Type) Signature Title Company Date 0'. Ii"o(am.u.d 4n_wo e) . Q:%0ATAK:FAi% LIENT51MVAcCU,, ln+glnjc js%Cn0Ac Pumkdld Rcc4nmiim P6a (Smlr•161.d(m ID No. 09-0124 page, -in of . 1G. LANDOWNER CONSENT surface or mineral rights owner. I concur with the proposed subsequent use for any mining operation and with the operating and reclamation Oan as submitted. I also agree to allow access to the State Department of Geology and Mineral Industries or their contractor for reclamation of the mine site if it is declared abandoned by the Department of Geology and Mineral Industries. By my signature below, I certify that I have a legal right to sign this document. APi ro Priale signulures are needed for EACH /are/ parcel. 1 CONCUR (Surface Rights) Nance (Please Print or Type) Signature Title Date I CONCUR (Mineral Rights): Name (Please Print or Type) Signature Title Date Sunli ht Mtn. Peak Develo ment LLC 9 Power of Attorney for Cougar Caverhill Manager Sunli ht Mtn. Peak De to m at LLC Power of Attorney for Cougar Caverhill. Manager 17. APPLICANT'S ACCEPTANCE Name (Please Print or Type) • Signature Title Date 18. PREPARED BY (IF OTHER THAN APPLICANT) Name (Please Print or Type) Signature Title Company Date 1V A-16 (ltewd 4!!6/41) 11:\O.\7'.\\CUH1('LIENTSW11AfeLlain Imes lmmla\Canade Pu ce\Id Atehu 4. P4. (Sadr-)Ol doc ID No. 09-0124 Exhibit Page of G LANDOWNER CONSENT ~s surf-ice or mineral rights owner, I concur with the proposed subsequent use ror any mining operation plan as submitted. I also agree to allow access to the State Department of Geology and Mineral Indust ies or their contrractor for and of the mine site if it is declared abandoned by the Department of Geology and Mineral Industries. By my signature below, I certify that 1 have a legal right to sign this document. Appropriate signatures are needed for EACH land parcel. 1 CONCUR (Surface Rights) Name (Please Print or Type) c ud Mtn evelo pment, LLC Signature Title Manaeer Date I CONCUR (Mineral Rights): Name (Please Print or Type) • Ro loud M h. Delvel'o^ment Signature t", - el Y " \1 Title a a er Date 17. APPLICANT'S ACCEPTANCE • Name (Please Print or Type) Signature Title Date 18. PREPARED BY (IF OTHER THAN APPLICANT) Name (Please Print or Type) Signature Title Company Date 0 I'..nw %MUI-I n (k-iSW 416N1) ,):(DATAi(:ON1Cl1ENTSV.(N4cChin 1-t-w.%C.attadc Pumice%Id AeeWpalian Plan 151n1r-16)A1C ID No. 09-0124 Exhibit L Page of._ Paul D. Dewey Attorney at Law • 1539 NW Vicksburg Bend, Oregon 97701 Tel. (541) 317-1993 fax (541) 383-3470 pdewey(@,bendcable.com August 8, 2008 Mr. Gary W. Lynch Assistant Director DOGAMI 229 Broadalbin St., SW Albany, OR 97321-2246 Re: Latham Excavation Mine, ID No. 09-0124 Dear Mr. Lynch: Thank you again for meeting with me and Mr. Kafoury last week. I am writing on behalf of my clients, Eric and Ronna Hoffman, to summarize inconsistencies and questions we have identified between Latham Excavation's operation/plans for Mine Site ID No. 09-0124 and the Operating and Reclamation Plan (the "Plan," attached) that it submitted to DOGAMI. What we know of • Latham Excavation's operation/plans comes from its current land use application to Deschutes County and its observed activities. 1. Mining Method The only mining method identified in the Plan under Section 4 a) is "slot mining" though the primary mining method has been and will be "side hill cut." While some "slot mining" does appear to be occurring, it also constitutes a side hill cut as one side of the slot is apparently deepening an existing 40-50 foot tall headwall cut into the hillside. Current expansion plans as identified in the County land use application called for cutting into the hill at least another 100 feet and could create a headwall around 100 feet in height. It is critical that DOGAMI understand Latham Excavation's true operating plan because of the visual and dust impacts of this headwall and because of the need for an adequate reclamation plan to reslope it. 2. Reclamation Land Shaping The plan in Section 13 a) states that the steepest excavated slopes left after mining will be 1.5:1. It also states in Section 13 d) that the site will be "shaped or backfilled to blend in with surrounding topography." The DOGAMI form states that: (l)ong continuous slopes should be avoided." August 8, 2008 Page 2 • Originally Latham Excavation's land use application stated that it would reclaim the slope to a 3:1 ratio. Later, though, it asserted that it would leave the headwall as is, claiming that DOGAMI would approve if the slope was stable. In no way would a long continuous 40-100 foot tall headwall blend in with the surrounding topography. It would also be noticeable to many people, as it is located near Tumalo State Park (with 100,000 visitors per year) and the Deschutes River Scenic Waterway. Dust clouds from the headwall and site also blow into the Park and Waterway. Unless the headwall is resloped to blend in with the surrounding topography, it will be a visual blight and source of dust in perpetuity. A May 20, 2008, e-mail from Mr. Mundie of DOGAMI to Latham Excavation's land use attorney states that a steeper slope is "not considered a substantial modification" of the Plan. To the contrary, this is a major modification where the Plan does not even identify a side hill cut of 40-100 feet in height (but only "slot mining") and the visual and dust impacts to this sensitive impact are not identified. 3. Dust Management Though not addressed in the Plan, management of "fugitive dust" is apparently the jurisdiction of DOGAMI (as opposed to dust from equipment which is regulated by DEQ). As reflected in the photos I have given to you, fugitive dust is a real and recurring problem here. Though Latham Excavation has utilized water trucks and has applied hydromulch, those efforts have not been consistent or completely effective. The hydromulch is also only a temporary six-month fix and it is already washing off the part of the headwall to which it was applied. 4. Stockpiles Latham Excavation in Section 4 j) states that there will be soil, overburden, rock waste or crush reject dumps or stockpiles, but it fails to provide the required estimated volume of each and to locate each on a mine plan map. Section 4 1) also requires locating storage areas on the mine plan map. 5. Reclamation Top Soil The Plan at Section 4 m) states that top soil stockpiles will be posted and seeded with ryegrass to be protected from traffic. But contrary to this suggestion that top soil at the site will be used for reclamation, Latham Excavation in its land use application clearly states that it intends to sell the top soil from the site. This is a serious concern since the "post-mining land use" identified in Section 2 is 60% forestry, 30% range/open space, and 10% agriculture. DOGAMI's "Best Management Practices" requires adequate soil depth to accomplish reclamation according to the approved plan, which for timber production is four feet over rock and two feet over gravel or soft overburden. Under Section 9 b) • the Plan states there will be 30 feet of average soil depth. Apparently a typo, that figure needs to be clarified. August 8, 2008 Page 3 • While it is a possibility that Latham Excavation could sell off all of the top soil at the site and then bring in top soil for reclamation, that does not seem economically realistic and any bond required by DOGAMI should be sufficient to buy and spread the necessary depth of top soil. This possible option is also just speculation, though, since the Plan filed with DOGAMI actually calls for using top soil from the site. Given Latham Excavation's inconsistent intent to sell. off the top soil, DOGAMI needs to require clear identification of amounts of top soil to be retained and the location of their stockpiles. If there are any existing soil stockpiles, they have not been posted and are not growing ryegrass. Some soil/vegetative matter is being brought to the site from Latham's excavation business, but heavy trucks are driving over it and it is not posted. or apparently seeded. 6. Stockpile and Processing Site Reclamation Though Latham Excavation states that it will have stockpile sites and though there will be crusher processing sites, the Plan states that Section 9 e) on reclamation "Does not apply." 7. Reclamation Techniques Under Section 9 a) of the Plan, Latham Excavation does not say what will be done with oversized rock not used during mining, claiming, "Does not apply." However, Latham • Excavation has brought in many tons of oversized rock to the site from its excavation projects in It is critical that all of these stockpiles of material be easily tracked to make sure the materials supposedly intended for reclamation do not end up being sold off or crushed for other purposes. Bend. Originally, it was illegally crushing the rock (without a land use permit), asserting an intent to "recycle" the rock. Later, Latham stated to the County that it was bringing the rock to the site for "reclamation." If the latter story is correct, then it should identify to DOGAMI the amount of this material and the location of the stockpiles. DOGAMI's Best Management Practices also require a monitoring plan to prevent disposal of hazardous or unapproved material on the site. 8. Reclamation Timing Latham Excavation states that reclamation will be "concurrent" in that slots will be closed with "burden" in Section 3 of the Plan. The "concurrent" mine reclamation is also identified in Section 4 1). However, Latham Excavation in its land use application has clearly stated that it will be selling the soil and overburden. 9. Waste Products The Plan states that there will not be any waste products generated during mining in Section 9 d). However, Latham Excavation is planning on having both a pumice crusher and a rock crusher • which will necessarily generate tailings or crusher rejects. August 8, 2008 Page 4 • 10. Waste Dump Site The Plan fails to acknowledge that Latham Excavation is using the mine site as a dump for vegetation and construction material from its excavation jobs. Attached are photos showing not only trees and other vegetation but also pallets and other construction debris. A solid waste complaint was filed with DEQ and the County. DEQ asked Latham Excavation to recycle the wood waste by June 15. The pile of material is still on the site, however. 11. Water Management Though the Plan states there will only be "dry processing" in Section 4 c), Latham Excavation actually plans to have washing equipment to wash tuff and develop a sand product on the site. No provision, however, is made for a settling pond. See Section 12. Latham Excavation has said that it will put the wash water on roads, but that would just result in the release of fine dust when the water evaporates and the dust is run over by equipment. A May 6, 2008, from Mr. Mundie states that ditches are being constructed to convey future storm water flow to an existing depression well and that there is adequate space to locate a process water pond, "if necessary." The Plan should identify whether, in fact, the depression well and the water pond will be utilized and where they will be located. 12. Screening The Plan misrepresents to DOGAMI in Section 7 a) that a natural vegetative screen currently exists along the permit boundary. There is no screening along the east half of the long north boundary or in the north corner of the east boundary. The Plan also states in Section 7 b) that planting of trees on the north property line is being done to develop a visual screen for the operation, but that simply has not been done. The County Land Use Process The County Hearings Officer recently issued a decision (enclosed) approving much of what Latham Excavation sought in its application, but also restricting its activities in significant ways, including: The site plan has to be modified to exclude areas of proposed excavation of the hillside which are visible from trails in Tumalo State Park. 2. "Noise and dust sensitive uses" are not just residences built pre-1990 but also anywhere on the properties where a house was built pre-1990, which includes the Hoffman property to the north and a residence to the east near the Deschutes River. It also should include Tumalo State Park. Screening with vegetation and berms is being required all along the north boundary. 04. There is to be no mining or removal of vegetation on the east 700 feet of the mine area. August 8, 2008 Page 5 • 5. No drilling or blasting is allowed. 6. Material brought onto the site cannot be processed or sold. This decision will likely be appealed, but no matter how the land use action is resolved, we believe it is critical that DOGAMI strictly regulate this mine site since it is located in such a sensitive area and require an amendment to the Plan that is consistent with what Latham Excavation is actually doing. We would also appreciate the opportunity to meet with you here to show you the problem first hand. Thank you for your interest in this matter. Very truly yours, PAUL DEWEY PD:ao Attachments cc: Eric and Ronna Hoffman • Stephen Kafoury • y. re on g •~gy~ Theodore R. Kulongoski, Governor September 15, 2008 Paul D. Dewey 1539 NW Vicksburg Bend, OR 97701 RE: DOGAMI MLRR IN 09-0124 Johnson Road Pit Dear Mr. Dewey: Department of Geology & Mineral Industries Mineral Land Regulation and Reclamation 229 Broadalbin Street SW Albany, OR 97321-2246 (541) 967-2039 FAX: (541) 967-2075 www.oregongeology.com Thank you for bringing the apparent inconsistencies in the submitted operating and reclamation plan regarding the Johnson Road Pit to my attention. I would like to respond to your letter dated August 8, 2008, by addressing your concerns in the order presented in your letter. I . Mining Method - You are correct that the method of mining described by Latham Excavating is slot mining. The DOGAMI operating and reclamation plan does not recognize slot mining as a mining method. This term originates in the operating and reclamation plan submitted by the previous operator Cascade Pumice in May 1993. The term slot mining is further used in a Deschutes County site plan approval dated January 29, 1997. This operation is correctly defined as a side-hill cut. multiple bench. Latham Excavating will submit a new operating and reclamation plan to DOGAMi once the current land use request is resolved. The new operating and reclamation. plan will reflect the current operation and proposed changes. Under the current plan and any subsequent plan Latham Excavating will be required to leave final excavated slopes at 1'/2(H):1(V). This will require multiple benches, with a vertical. face of no more than 40 feet in height. 2. Reclamation Land Shaping - Again the required final sloping requirements are I%2(H): I(V). Any deviation from this sloping requirement would require a stamped geotechnical evaluation and a DOGAMI permit amendment. 3. Dust Management - DOGAMI has coordinated with DEQ in Deschutes County regarding the control of dust at numerous active mine sites over the decades. According to DEQ an air-quality permit is not required at the Johnson Road Pit. State statute does require mine operators take "reasonable precautions to prevent particulate matter from becoming airborne" OAR 340-208-0210. DOGAMI and DEQ are satisfied that Latham Excavation is actively pursuing reasonable and prudeIit measures to reduce the potential for the generation of dust at the Johnson Road Pit. Within the permit boundary DOGAMI requires dust suppression on haul roads, stockpiles, and other dust generators through the use of hydro-seeding and mulching, tarping haul trucks, and use of a water truck during active mine operations. These dust suppression actions will prevent significant off-site impacts from fugitive dust. 4. Stockpiles - A new operating and reclamation plan as well as a new site plan map will be submitted to DOGAMI once the current land use decision is resolved. The issue of stockpiles will be addressed in • the new plan. Page I of 2 X91 September 15, 2008 Paul D. Dewey DOGAMI MLRR ID# 09-0124 5. Reclamation Top Soil - DOGAMI has identified soil stockpiles on-site at the Johnson Road Pit. A soil budget has not been calculated, but will after a new operating and reclamation plan has been submitted and reviewed. At that time a new bond calculation will be compiled. If adequate soil material is not stockpiled on-site, the bond amount will reflect the need to import soil material for final reclamation. 6. Stockpile and Processing Site Reclamation - Latham Excavating will be required to reclaim all processing and stockpile areas. 7. Reclamation Techniques - The importation of clean construction fill material that is acceptable to DEQ, is a common practice in the industry and is allowed under the DOGAMI permit. If oversized material is imported Latham Excavating will be required to properly dispose of this material before bond release. "Mo4it6ring of imported fill* is the operators responsibility. Latham Excavating has stated that only clean construction waste has been imported. 8. Reclamation Timing - DOGAMI typically does not require concurrent reclamation. Latham Excavating will be required to document adequate soil material. is present on-site for final reclamation. Imported clean fill may also be used for backfilling of mine excavations to achieve reclamation. Again, if Latham Excavating cannot document adequate soil material is available for final reclamation the bond amount will reflect the cost of importing soil material. 9. Waste Products - Previously processing was not an allowed use under the county ordinances, so the generation of waste products was not addressed. If processing is allowed under county ordinance the new operating and reclamation plan will reflect this change. Crusher reiect material is recognized as a • suitable soil substitute material. 10. Waste Dump Site - Again, importing clean construction fill material is an allowed use under the DOGAMI operating permit. Several mine sites around the Bend area import trees and other natural wood waste to chip for mulch, again this activity is allowed under the DOGAMI permit. 11. Water Management - The operating and reclamation plan submitted did not address process water management in that this was not an allowed action under county ordinance. If processing is approved by the county, Latham Excavating will submit a new operating and reclamation plan that addresses these issues. Further, Latham excavating will be required to obtain a DEQ WPCF 1000 water quality permit that will require a detailed plan of process water management. 12. Screening - DOGAMI encourages operators to maintain existing visual screens and develop screens where feasible. This is not a DOGAMI requirement. 13. County Land Use Process - DOGAMI has no authority to restrict a mine operator based on county ordinance. DOGAMI will continue to insure the Johnson Road Pit is operated in compliance with the state reclamation rules and regulations. DOGAMI will continue to coordinate with Deschutes County and DEQ to insure the Johnson Road Pit is operated in compliance with the DOGAMI operating permit. Sincerely GarfWL-vnch Assistant Director . DOGAMI • 5. THE APPLICATIONS AND THE HEARINGS OFFICER'S DECISION FAIL TO ADEQUATELY ADDRESS THE ISSUE OF TRAFFIC IMPACTS. The Hearings Officer failed to require a traffic analysis for any assessment or mitigation of the increased truck traffic for this site associated with these applications. This is particularly critical with regard to the failing intersection with Highway 20 in Tumalo where the Latham Excavation trucks are traveling. They are turning onto and off of Highway 20 at the Cook Avenue/O.B. Riley Road/Highway 20 intersection. The need to assess actual traffic from this operation was clearly identified by the opponents' traffic expert, Mr. Bernstein, which is included the Hoffinan February 19, 2008, materials. Additionally, the Hearings Officer erred in concluding that the acknowledged sight-distance problems caused by the curving roads and long, slow trucks on Johnson Road are mitigated merely by posting signs. Double-trailer trucks should not be allowed to use this site. • . Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 • Attachment C. Inventory of TruckTraffic, Latham Mine Days during which monitoring was undertaken; 1/23, 1/24, 2/18, 2/19, 2/20,2/26, 2/28, 3/4, 3/5, 3/7 Total hours of monitoring 12.5 hours Monitoring hours since Feb. 19 hearing 7.5 hours Truck Daily Hourly traffic average average Total trucks entering mine 94 60 7.5 Trucks containing excavation debris 53 34 4 Debris trucks since 19 Feb. hearing 15 16 2 Trucks carrying pumice 22 14 2 Other trucks (note 1) 19 12 1.5 Total trucks exiting mine 96 61 8 Truck carrying pumice 35 22 2.75 Other trucks (note 1) 61 39 5 Other truck tfaffic on Johnson Market Rd. 186 119 15 Other vehicle traffic on Johnson Market Rd. 607 389 49 Note 1: Includes empty trucks, trucks hauling equipment • IMPORTATION OF FOREIGN MATERIAL • 7 HOURS OF OBSERVATION MON/TUESDAY, 18/19 FEB. If extrapolated for 8-hour day Total traffic = 109 Trucks of rock, construction debris = 38 trucks = 380 tons or 380 yd3 Trucks ash/gravel = 10 If extrapolated over 1 week, rock/debris = 2,500 tons or 2,500 yd3 Assuming they have had similar importation since February, 2007 (13 months) one could estimate they have imported 135,000 cubic yards is • 6. THE APPLICATIONS SHOULD BE DENIED WHERE FUGITIVE DUST • EMISSIONS ARE NOT RESOLVED. The Hearings Officer erred in finding that DCC 18.52.110(B) screening standards do not apply to dust on the basis that "dust" is not in a list of screened uses. What the Hearings Officer ignores is the fact that the ESEE identifies this dust clearly as an issue to be addressed. Additionally, DCC 18.52.110(P) requires: "All impacts of the mining activities identified in the ESEE analysis for the specific site are addressed and have been resolved at the time of site plan approval or before the start of mining activity." (Emphasis added.)' A key impact identified in the ESEE at page 3 is "fugitive dust emissions." Nothing has or will have been "resolved" at the time of site plan approval. In its latest submittal Latham talks about maybe setting up a monitoring system in the future. Despite the requirement that these issues be resolved at least before the start of a mining activity, Latham has been mining for over one year without resolving dust issues. See attached recent news article on impacts of dust at Tumalo State Park. Furthermore, conditions of approval for SP-95-10 which became incorporated into deed restrictions running with the land required compliance with the recommendations of the AGI Study regarding fugitive dust and the maintenance of a log of meteorological conditions. • Latham has not shown that it has complied with any of this, including Condition No. 16 d) of the daily log format to monitor air quality impacts. In 1995 Deschutes County required Cascade Pumice to do an air quality study "to demonstrate that air quality standards will not be exceeded by the proposed pumice mining operation." Assessment of Fugitive Dust Impact at Cascade Pumice, Inc. Site 303 (June 9, 1995), p. 1. At a minimum the same should be done with this application, particularly in light of all the recent wind erosion. The wind erosion studied in 1995 did not include the exposed headwall or all the unreclaimed areas. It only considered overburden removal and storage areas and exposed parking areas. See the attached review of the AGI reports by Golder Associates and their recommendations. Additionally, DCC 18.52.110(13) on screening describes protected uses as noise-sensitive or dust-sensitive uses existing as of July 1990 plus public parks. The Hoffman residence was constructed prior to July of 1990. Obviously, both residences and the Tumalo State Park will be concerned about seeing dust from the mining and crushing operations. 1 Note that deferral of compliance in a condition of approval is not appropriate here where the Code requires that compliance be "resolved" at the time of site plan approval or before the start of mining activity. . Pau( D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 Further, the Applicant has failed to meet its burden of proof on meeting air quality standards pursuant to DCC 18.52.110(C) which requires: "The discharge of contaminants and dust created by the mining operation and accessory uses to mining does not exceed any applicable DEQ air quality and emission standards." There has been no showing that the current operations do not result in a discharge of contaminants that does not exceed air quality and emission standards and there has been no showing that the addition of a crusher and further excavation of the headwall will not result in exceeding the standards. The 1995 AGI studies presented by Applicant are not assessments of either current or proposed activities. Condition Nos. 8 and 16(d) of the Board's decision approving Cascade Pumice's operations in 1997 required both dust control measures and monitoring, including keeping a log of conditions. The Applicant has been operating on the site for over one year and has failed to adequately control the dust (as shown by photos) or to provide any evidence of monitoring. • 2 Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 • Photos by. Devin Wagner / The -e Bulletin David Whistler, right, who lives across from a pumice mine near Tumaio, discusses his ::.concerns about recent,:mine activities with neighbors Dave Adams and Gretchen Valido. ; THE MINE "Te can' agree that surface; mines aren't pretty, but re a necessl" --Pat McClain, Latham Excavation president f hr ~1, Latham Excavation President Pat Mc- Clain's company wants to add an on-site pumice crusher to its mine. ■ Residents raise dint over.. m i nre near Tumal~o Owner wants on-site pumice crusher, no firm ending date By Hillary Borrud The Bulletin Until last year, neighbors of apumice mine south of Tumalo found comfort in the expec- tation of its owner, Cascade Pumice, that.the company would stop mining" in less than a decade. That would'bring an end to the dust, noise and some of the,truck traffic. Now, the mine has new owners, and their plans do not, include 'any estimate of when mining operations will end. In January 2007, Latham Excavation pur- chased the site with two other parties and took over mining operations. The neighbors grew concerned about a new land use appli- cation that would include an_ on-site pumice crusher and no end`date to the surface min- ` ing they-saycreates noise and dust. "We were willing to put up with the nui- sance when there was an end insight," said David Whistler, who lives in the Tumalo Rim subdivision across from the mine. Cascade Pumice expected to, start mining between 2001 and 2004,, and finish in eight years, ac- cording to,,a Deschutes County Commission. decision from 1997. See-Mine/C5 Inside.,-, • Mine Deschutes v Ri l0Et10(1; ver- w„ Page C5 ~ • H0416 to, Tumalo ~ ' Rim Or Ti halo comment, Page C5 . , ~ohMSp° park 0 Pumice mine ~m ro ee r " 7 COVER STORIES • • Mine Continued from C1 ' ' The fate of the mine came up for discussion this week when the owners. and. neigh. bors came before a Deschutes County hearings officer at a well-attended meeting Tuesday. Latham Excavation President Pat McClain, about 30 neigh- bors and attorneys for both sides weighed in on the mine operator's land use application, which asks for a conditional- use permit to crush pumice and the overlying material on site. The application also requests acknowledgement from the county that Latham Excavation will remove the material above the pumice, known as .Tumalo tuff, for use in construction. Latham Excavation present- ed requests Tuesday that it had scaled back considerably from the last version of the applica- tion;, which also asked for 'an aggregate crusher, an on-site office and shop, and the right to extract sand, basalt and gravel. Since the new application, was only made available Tuesday, the hearings officer continued the hearing until April 15 and did not make a decision. If that. meeting is not continued, the hearings officer will then issue a written decision on Latham. Excavation's application. Par- ties on either side of the issue can appeal to the hearings of- ficer for reconsideration, and then to the Deschutes County Commission if they are not satisfied. Latham President McClain said he wants to be a good steward. "I understand that they don't like surface mines," McClain said. "We can agree that surface mines aren't pretty, but they're a necessity." McClain said surface mines are necessary to obtain materi- als for products such as asphalt. Latham Excavation .pumice mine Neighbors of the mine oppose the owner's latest land use application, which includes a pumice crusher and no end date for mining. Tumalo! • ~J Deschutes - River r. Tumalo a Rim for°~'_ r \L l A f,\ I~ Q 1 1: 1- Pumice mine To B ~~end',' t~ Sources Lath$ Excavation and Deschuteunty Greg Cross / The Bulletin "We're concerned about the neighbors," he said. "We don't want them upset, but we are surface mining." The site, has been mined. in- termittently for aggregate and pumice since•the 19706; accord- ing to Latham Excavation's.lat- ,est land use application. McClain said Latham' Exca- vation needs to process'pumce and. Tumalo tuff on site, which includes crushing it, because the company does not have an= other location for processing as Cascade Pumice did. The company currently trucks the Tumalo tuff and pumice off site for processing, and brings the materials back to be sold. Among the neighbors who spoke at the meeting was Eric Hoffman, whose farm sits di- rectly north of the pumice mine. "My wife's and my property borders this monstrosity, as I call it," said Hoffman, who add- ed that he worked in the con- struction business for 60 years. TO CQMMENT People can submit written testimony on Latham Excavation's land use application until April 15 to: -Deschutes County Community Development Attn: Paul Blikstad - 117`N.W. Lafayette Ave. Bend,, OR97702 . "And these guys aren't miners, they're excavators:' . Hoffman's attorney, Paul Dewey, said Latham Construc- Ition is treating the mine like a landfill for construction and ex- cavation debris. "Frankly, they ought to be going to (the Department of En- vironmental Quality) and the county and,getting a permit for a landfill," Dewey said. Latham's attorney, Bruce White, said in his presentation to the hear- ings officer Tuesday that mate- rial, the° company brings in on trucks is for reclamation. of the mine, and it will not be crushed on site. "The intensity of our operation is less than Cascade Pumice's," White said. Whistlersaid he spent about seven hours watching trucks enter and leave the pumice mine Monday and Tuesday, and out of 109 trucks that went in and out, 48 carried debris into the mine. As for previous mine owner Cascade Pumice's expectation that it would stop mining after eight years, which was recorded in the 1997 Deschutes County Commission decision, the new owner has no such timeline. McClain said, "The mine was purchased without a time limit." Hillary Borrud can be reached at 617-7829 or at hborrud@bendbulletin.com. w • • • Golder Associates Inc. 18300 NE Union Hill Road, Suite 200 Redmond, Washington 98052 Telephone: (425) 883 0777 Fax: (425) 882 5498 May 19, 2008 Paul D. Dewey Attorney at Law 1539 NW Vicksburg Bend Oregon 97701 . Golder Associates Our Ref.: 083-93019 RE: LATHAM EXCAVATION, INC. APPLICATIONS - CU-07-102 AND SP-07-46 Dear Paul In response your email request, dated May 15, 2008, Golder has reviewed the June 7, 1995 report by AGI Technologies titled, "Size Distribution and Crystalline Silica Determination of Soil at Cascade Pumice, Inc. Sites 303 and 307." We understand that Site 303 corresponds to the current operating location of Latham Excavation, Inc. The study indicates that samples of soil, pumice, overburden (Tuff), and volcanic cinders were collected for analysis to determine the crystalline and amorphous silica fractions. Both types of silica were measured in these materials. While there is a higher human health risk associated with crystalline silica inhalation, both types of silica have been assigned industrial exposure levels due to health and safety concerns about airborne silica dust. Human inhalation of crystalline silica has been associated with silicosis. While the above referenced report cites higher than average levels of silica in samples, particularly in topsoil, it concludes, based on fugitive dust modeling, that "the total amount of crystalline silica in ambient air will be very low around the sites due to pumice mining and associated activities." A previous email that you provided to Golder contained photos of windblown dust taken looking towards the Latham Excavation site. While we do not know the specific conditions under which the photos were taken, it was obvious that a significant amount of dust was being carried from the site by the wind. Based on our observations of the photos, it is unclear how the AGI Technologies' study (now over 12-years old), could conclude that the concentration of crystalline silica dust would be very low in the ambient air. Golder has reviewed the companion AGI Technologies report dated June 9, 1995, "Assessment of Fugitive Dust Impact at Cascade Pumice, Inc. Site 303." This report utilizes equations from EPA's emission factor compendium, AP-42, that have been since updated. Additionally, this study, which includes modeling of fugitive dust using EPA's Fugitive Dust Model, does not appear to include rock crushing activities as a source of particulate and may not include other activities that are occurring at the site currently. Additionally, it does not appear that the study addresses the suspension of silica dust in ambient air specifically, but rather addresses the issue of total suspended particulate and particulate matter less than 10 microns in aerodynamic diameter, which may accurately reflect the presence of silica dust in the fugitive dust. OFFICES ACROSS AFRICA, AUSTRALIA, EUROPE, NORTH AMERICA AND SOUTH AMERICA MR. PAUL DEWEY DRAFT MAY 19, 2008 ATTORNEY AT LAW -2- 083-93019 It is Golder's opinion that this study is most likely no longer valid and not rigorous enough given the potential for human health impacts from suspended silica dust. The only certain approach to quantifying the concentration of airborne silica at a specific location, is by monitoring. We are currently unaware of any ambient silica dust monitoring that has been completed at or around the site. In our opinion, assuring that the health of people living in nearby residences is protected, given the higher than average silica content of some of the materials on-site and the proximity of residences, requires that it be assumed that there is the potential for inhalation exposure to crystalline and amorphous silica dust. The quarry operator should be asked to demonstrate that safe concentrations are not exceeded by using off-site ambient sampling that allows for the specialized analysis of samples by x-ray diffraction. We trust that this information meets your present requirements. If you have any further questions about how to monitor for silica dust or its potential health impacts, please feel free to call the undersigned at (503) 607-1820. Sincerely, GOLDER ASSOCIATES INC. Chad Darby Senior Consultant • References AGI Technologies, "Size Distribution and Crystalline Silica Determination of Soil at Cascade Pumice, inc. Sites 303 and 357," July 7, 1995, AGI Project No. 30,481.002. • Golder Associates Docurnew Pgr.roduces Poorly (Archived) 0 40 i Document Reproduces Poorly (Archived) t fit. f^ s s U • 7. THE CONDITIONS OF APPROVAL OF THE HEARINGS OFFICER ARE INADEQUATE. There are a number of conditions of approval of the Hearings Officer which do not have enough specificity or clarity to be enforceable. Some of these issues are also addressed in the memorandum on inadequate site plan and other information having been provided. Condition No. 1: What Uses Are Allowed? The first condition of approval by the Hearings Officer provides that the mining operation approval is based on the submitted plan, including the location and types of materials to be mined and processed, but as stated above, there is no clear site plan or other materials providing this information. Again, given all of the modifications and amendments to the Applicant's proposals, the Hearings Officer should have clearly spelled out what has been approved here. The site plan does not identify the location of the mining slots that are to be mined, fails to identify the location and the amount of materials to be stockpiled on the site, what areas are undergoing reclamation and that the proposed washer is to be located below grade along with all of the other equipment. Condition No. 7: Dust Control. The condition of approval regarding dust suppression methods is incomplete and unenforceable. For example, it fails to address the massive mining headwall which is always dry and exposed and is a source of dust. The Hearings Officer also failed to address the need for ongoing dust suppression, including the hydromulching which according to the Applicant has to be done every six months. Condition No. 12: Specifics on Screening and Maintenance. Though the Hearings Officer requires that screening be provided along the north boundary, she fails to require a site plan amendment where the Applicant would have to show exactly what screening will be provided and where. Without that information, there is no way to assess the adequacy of this condition of approval in satisfying the Code criteria. The Hearings Officer also fails to require any continued maintenance of this screening landscaping and berms. Condition No. 17: Visibility from the Park. The Hearings Officer appropriately decided that if any future mining occurs of the hillside that it should be restricted. She erred, however, in providing that the site plan is to be amended in the future and with a determination to be made only by State Parks and the Applicant. The public is entitled to comment and is entitled to know where the actual boundary is going to be. The Hearings Officer also failed to clearly identify storage sites and failed to look at locating these sites as far away as possible from sensitive uses. 0 Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 0 Lack of a Condition: The Portable Scale. The Hearings Officer in approving the location and use of a portable scale failed to include a necessary condition of approval limiting the use to industrial and commercial customers for this particular site, though she described its use as limited at page 3 of her Decision, referring to "Use of a portable scale for weighing excavated materials on site." The neighbors are justifiably concerned with this scale being used by other trucks in the area which will just increase the amount of truck traffic in the area. is Paul D. Dewey, OSB #78178 2 1539 NW Vicksburg Bend, Oregon 97701 (541)317-1993 THE APPLICANT'S APPEAL ISSUES: Though it is not clear what the Applicant will be specifically arguing in its appeal, the Hoffmans wish to address the arguments made by the Applicant to the Hearings Officer. Alleged Error in Condition 12. The Applicant asserts that Condition of Approval 12 is incorrect as a matter of law, arguing that the protected noise or dust-sensitive uses do not include the properties as a whole but instead only the houses. As support of this argument, the Applicant relies primarily on its interpretation of the terms "noise-sensitive use" and "dust-sensitive use" in the County Code's general definition section, DCC 18.04.030. However, the Hearings Officer did not base her decision on these Code definitions, but rather on the ESEE for the mine site. As is made clear in the Code, the ESEE contains separate approval criteria than what is in the Code and wherever there is any conflict between the two, the ESEE prevails. See DCC 18.52.020. The Applicant's only discussion of the ESEE merely disagrees with the Hearings Officer's interpretation of the ESEE. The Hearings Officer at page 18, n. 12, explains that "noise-sensitive or dust-sensitive uses are broadly defined to include all activities in nearby zones, except forest practices, airports, landfills and other extractive activities," citing the Site 303 ESEE at page 5. The ESEE on page 5 also refers to "noise and dust sensitive uses (as defined below)." (Emphasis added.) Where the ESEE specifically provided for this broad definition, it would be • inappropriate to use an arguably more limited Code definition that Applicant acknowledges was later amended to be more restrictive (excluding garages and workshops). Even if for the sake of argument it could be asserted that the Code definitions were significantly amended, the fact is that the ESEE was not amended. Additionally, the Applicant does not point to any provision that prohibits Condition 12 and specifically its requirement: "To minimize the visual and noise impacts to residential uses on the Hoffman property, the Applicant shall install a berm and/or supply landscaping along the north property line near the water tower and parking areas and extending to the western edge of the previously mined area." There is nothing in DCC Chapter 18.52 which prohibits the Hearings Officer from requiring this buffering.) 1 The Applicant cites to the decision by Hearings Officer Karen Green in SP 95-010 where she determined that the screening requirements of DCC 18.52.110(B) did not apply to the driveway. It should be noted, however, that Ms. Green did not consider this issue in the context of the ESEE provisions and further had a different factual record as to impacts along the north boundary line. Paul D. Dewey, OSB #78178 . 1539 Vicksburg Bend, Oregon 97701 (541) 317-1993 • The Applicant further argues that the Hearings Officer made a factual error because the driveway leading to the main house is "not part of the Hoffman #1 property, where the main house is located." The Applicant, however, acknowledges that this driveway accesses the main house and fails to explain why its presence on a separate tax lot makes any difference here. It is clear that the Hoffmans use the entirety of their property, including all three tax lots, and that there is simply no basis for the Applicant to be trying to make any distinction between uses on those lots. Alleged Error in Condition 9. The Applicant asserts that Condition of Approval 9 is inappropriate where it requires that the crusher and materials washer shall only be located in the southwestern processing site identified on the revised plan. The Applicant again objects to the Hearings Officer's finding that the activities otherwise would be occurring inside the noise and dust-sensitive use areas. For the reasons stated above, the Applicant's arguments should be denied. Alleged Error in Condition 17. The Applicant contends that the Condition of Approval 17 is not appropriate where it provides that mining may not occur in areas along the upper wall that are visible from Tumalo State Park Trails. A basic premise of the Applicant's argument is that DCC 18.52.110(13) limits screening for either "natural screening" or "supplied screening." The Applicant bases this argument on the provision of DCC 18.52.110(13)(1) that a site is to be screened to meet the standards specified in • DCC 18.52.110(13)(2). The standard specified in DCC 18.52.110(13)(2) is that "it obscures the view of the screened uses from the protected uses." That is the "standard" to be met, as opposed to the description of methods in DCC 18.52.110(13)(5). Note that the exceptions in DCC 18.52.110(B)(6)(a) and (b) address the standards and criteria for screening in the context of topography of the site. As the Hearings Officer correctly notes, the Applicant is proposing a substantial alteration of the topography of the site that would result in a site not being able to be screened. Accordingly, it is entirely appropriate to prohibit the creation of such a visible headwall where the Applicant has stated clearly that it is not going to reclaim the headwall and where there is no possible screening of this new visible feature from the protected use of the public park. The Hearings Officer appropriately found, at page 18: "For those areas that cannot be screened, DCC 18.52.110(B)(6)(d) requires that extractive activities be completed within 18 months of the approval, mining equipment removed and the area reclaimed. DCC 18.52.11 0(13)(6)(e) permits the applicant to offer an alternative mitigation program to address noise, dust and visual impacts." In addition, even if the Code language didn't require the screening, the ESEE did. The County in its "PROGRAM TO MEET THE GOAL," paragraph 23, states: 2 Paul D. Dewey, OSB #78178 01539 Vicksburg Bend, Oregon 97701 (541) 317-1993 "Noise and visual impacts shall be mitigated by buffering and screening, with particular attention paid to screening from Tumalo State Park or the eastern, northeastern and southeastern boundaries." Where the ESEE requires screening from the Park, it would be an odd and inconsistent interpretation of the rules to allow the expansion of a massive headwall that could not be screened. There is substantial evidence of the mine site being visible from the upper trail area of the Park. See the filings by State Parks and Helen Whistler and the ESEE's reference to the mine site being visible from the park, at page 6. Also see our photos submitted on February 19, 2008, marked there as Exhibit B. • Paul D. Dewey, OSB #78178 3 • 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 • ESEE Findings and Decision Site No. 303 Site Number 303, occupying a portion of tax lot 300 Township 17, Range 12, Section 7, came before the Board Commissioners (Board) for hearing on August 9, 1989. On October 26, 1989, the Board made a preliminary decision site. By adoption of these findings and this decision, confirms and ratifies that preliminary decision. in of on this the Board The purpose of the hearing before the Board was to determine whether the subject site, listed on the County's inventory of aggregate sites, should be classified under the County's compre- hensive plan and zoning regulations as "SM" or Surface Mining. For the reasons given below, the Board determines that this site should be so classified. PRELIMINARY FINDINGS Site number 303 comprises approximately 80 acres and is located off Johnson Road one mile southwest of Tumalo State Park. The site is owned by Cascade Pumice and is zoned SM. Adjacent -land is zoned EFU-20, MUA-10 and UAR-10. .This site was identified as containing aggregate and pumice resources in the Deschutes County Goal 5 Aggregate inventory • adopted by the Board on December 6, 1988. Based upon the site's inclusion on that inventory, a hearing was held to determine whether to zone this site under-statewide planning goal 5 to protect the aggregate resource. APPLICABLE CRITERIA Criteria applicable to this decision are Statewide Planning Goal 5, its implementing rule, OAR. 660-16-000, the Deschutes County Year 2000 Comprehensive Plan, as amended, regarding surface mining goals and policies. HEARING AND EXHIBITS Prior to the hearing on this site, a staff report was pre- pared setting forth.the site's aggregate resources and conflict- ing resource and use values. The report, which was entered into the record at the hearing before the Board, identified conflict- ing resources and uses and their impacts and evaluated the economic, social, energy, and environmental consequences of protecting the mineral resource or in the alternative, protecting the conflicting values or uses. In addition, testimony was received from the Department of Fish and Wildlife, the Department of State Parks and Recreation 1 - ESEE FINDINGS AND DECISION - SITE NO. 303 Exhibit Page ~ of!~- (State Parks), the operator of the site, the Coalition for the Deschutes and neighborhood residents. A list of the contents of the record is* appended hereto as Exhibit A. ESEE FINDINGS AND CONCLUSIONS 1. Inventory. The County's Goal 5 mineral and aggregate inven- tory establishes that the site has two types of mineral resources: 750,000 cubic yards'of good quality pumice; and 10,000 cubic yards of sand and gravel. The sand and gravel resource has•_largely been mined out by previous-mining operations. Therefore, this analysis will focus on the pumice resource. 2. Site characteristics. The site is just off Johnson Road approximately .75 miles southwest of Tumalo State Park and 1.5 miles south of Highway 20. Johnson Road runs just west of the site, touching it in the NW corner. Access is via a dirt/gravel road, off Johnson Road. y The west half of the site is primarily natural with juniper tree and some. sagebrush. There are two small pumice quar- 40 on the west half. Part of the east half has been cleared and mined. No improvements are located on the property. This a relatively sparsely developed area of larger residen- tial acreages. Directly west of the subject site is a gravel reserve site. To the south are 40-acre residential properties. 500 feet to the east lies the Deschutes River and the Deschutes Scenic Waterway, with a residential property in between the mine and the river. Within a half mile to the north lies the Tumalo Rim subdivision, with average quality homes on half-acre lots. Also within a half mile to the north are farm properties, an older gravel pit, and Tumalo State Park. Across the Deschutes River to the east is undeveloped land. 3. Conflicts analysis. a. Conflicts Natural Resources. 1._ Wildlife. The Department of Fish and Wildlife has identified this site for deer winter range, with medium frequency of use. The surrounding properties all have • 2 - ESEE FINDINGS AND DECISION - SITE NO. 303 page -.~.--oU .-T a Wildlife Area combining zone, indicating that this area is part of the Tumalo winter deer range. There is also medium sensitive raptor use in the area. Neigh- borhood residents testified to seeing eagles in the area. 2. State Scenic Waterway. The adjacent segment of the Deschutes River has been designated by the State of Oregon as a state scenic waterway. Such designation includes a 1/4 mile corridor on each side of the river. The Board finds that a portion of the site falls within the scenic waterway corridor. State scenic waterway designation is based upon a river segment's outstanding scenic, fish, wildlife, geologi- cal, botanical, historic, archeological, recreational and outdoor values. From the Deschutes County/City of Bend Deschutes River study, the outstanding attributes of the river in this segment appear to be its scenic and recreational qualities. The Deschutes River was identified in the Ragatz study -as one of the most important natural features in the County, that study noted that high proportions of :y visitors and residents make use of the river for recreational purposes. • 3. Open space. The surrounding zoning of EFU-20 indicates high open space values. In addition, as the testimony of State Parks indicates, the site is located between two parcels of land that are a part of the Tumalo State Park, which also indicates high open space values. 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 pre- sence of machinery on the site, the building of infra- structure, such as access roads, fences, and processing facilities, and fugitive dust emissions. (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. The effect would- 3 - ESEE FINDINGS AND DECISION - SITE NO. 303 Pk0e ~Od s_ 6-1 generally be to displace deer from such areas or to curtail their use. The Department of Fish and Wildlife has characterized the impact of noise on deer at this site as medium. (3) Impacts on the Deschutes River State Scenic Waterway would include visual impacts from surface and vegeta- tion disturbance within the scenic waterway corridor as set forth.in paragraph (1) above. In addition, testi- mony of area residents indicated that the usual winds blow dust from the site toward the river and the state park. Because the pit is on a bluff, noise from the site carries over to the river and to Tumalo State Park. Such impacts would adversely affect the special scenic and recreational qualities of the Deschutes River and Tumalo State Park. There is no indication that surface mining would create water quality pro- blems, since the site is set back from the river. State scenic waterway status does not preclude mining in scenic waterways, but allows for mining operations in the scenic waterway corridor subject to State Parks Department regulation. The Board finds that the resources identified above conflict Y with zoning for surface mining in that full protection of • such resources, accounting for impacts of habitat destruc- tion and topographical alteration, noise, and increased human presence could preclude zoning for surface mining. Conversely, the Board finds that the noise, dust, increased traffic, physical scarring of the landscape and loss of vegetation associated with surface mining at the site would have an adverse impact on wildlife, open space and scenic resources. b. Land Use Conflicts. Land Uses Land uses in the SM, EFU-20, UAR-10, and 14UA 10 zones at and surrounding the site are set forth in Appendix A to the staff report and at Section 4.100 (SM) of the Deschutes County Zoning Ordinance, PL-15, and Section 10 of the Bend Area General Plan, PL-11. Conflicts The Board finds that conflicts with the uses'at the site and in the surrounding zones would include: . 4 - ESEE FINDINGS AND DECISION - SITE NO. 303 Will Page At the site (1) The Board finds that the site is already committed to surface mining and that the existing surface mining conflicts with other allowed and conditional uses in the SM zone in that occupation of the surface area of the site for mining prevents other uses from being established. (2) The impacts of noise and dust on noise and dust sensi- tive uses (as defined below) that could be established on unoccupied portions of the site. As a practical matter, such conflicts are not of great consequence, since the owner of the site has chosen to commit the site to surface mining. • Surrounding zones (1) The impacts of noise (including heavy equipment, truck traffic, blasting, processing, and drilling) on persons dwelling in or patronizing noise-sensitive uses in the surrounding zoning. The Board finds that under DEQ noise standards, all possible uses in the surrounding zones would be noise-sensitive uses, except utility uses, landfill uses, other mining or geothermal uses, personal landing strip uses, forest products processing uses, and hydroelectric uses. (2) The impacts of dust on dust-sensitive uses. The Board finds that all commercial, residential, park or com- munity-type uses are dust-sensitive uses due to the potential health impacts of dust on occupants and patrons.. (3) The impact of truck traffic on roads and on public safety, particularly as truck traffic affects the safety of residential neighborhoods. (4) The impact to aesthetic values, due to physical scarr- ing of the landscape and the introduction of an in- dustrial-type use into a rural setting. This would affect primarily residential uses and community and park-type.uses. The Board finds that the uses identified above as conflict- ing are conflicting in that full protection of those use would preclude continued mining at the site or cause limita- tions to be put on mining activities. The Board finds that there are existing uses in the area that would be impacted by the above-described conflicts. Specifically, the residential uses in the nearby 40-lot • 5 - ESEE FINDINGS AND DECISION - SITE NO. 303 EXhM Page =of 0- Tumalo Rim Drive subdivision to the North and the adjacent residence to the East would be subject to noise near the subdivision and possible dust impacts. Increased truck traffic on Johnson Road could adversely affect the safety of Tumalo Rim Drive subdivision residents. in addition, there was testimony that Johnson Road is heavily used by bicy- clists. The Board finds that the surface mine is not visible from the Tumalo Rim subdivision and would be diffi- cult to see from the residence immediately to the East. The site would be most visible from the undeveloped land to the East. The Board finds that visitors to Tumalo State Park would also be affected based upon the testimony of State Parks and neighborhood residents. Tumalo State Park receives high campground and day use and that the site is located between two portions of the Park. State Parks testified that day hikers use the undeveloped portions of the park adjacent to site 303. In addition, the site is visible from the devel- oped portions of the Park and from the River. Neighborhood residents testified that the usual winds blow dust toward the park and that sound carries from the site toward the river and the park. 4. Current Mining Use of Site. The Board finds that surface mining is a current or previous use at the site and could • possibly continue within any valid existing DOGAMI or County permit area regardless of whether or not this site is zoned in the Goal 5 process. Accordingly, the consequences of allowing mining to proceed on the site have occurred or are already occurring and could possibly be allowed to occur until such time as expansion of the site would be necessary. Therefore, the relevance of the ESEE discussion below is primarily whether any expansion would be allowed at the site and whether the site is important enough that limitations should be placed on-,existing and potential land use con- flicts. Resource Conflicts Protection of Aggregate Resource 5. Economic Consequences. The Board finds that the economic consequence of protecting the aggregate in conflicts with other natural resources is difficult to measure, given that deer habitat, open space, and scenic waterway values do not have any economic values attached to them. Economic consequences would tend to be of a secondary nature, such as,a reduction in tourists who might be dis- suaded from coming to the area if this site along with others are developed in such a manner as to create large un- 6 - ESEE FINDINGS AND DECISION - SITE NO. 303 EAW Page !j 0 • sightly areas in the county. This could be an importance consequence, given the proximity of the site to Tumalo State Park and since the Deschutes River has been found to be the most important recreational feature in the County. 6. Social Consequences. The Board finds that the social conse- quences of protecting the mineral resource over the other natural resources would be negative. Surface mining would have negative impacts on wildlife and exacerbate an existing scar in the landscape. The impact would be felt primarily by those making use of Tumalo State Park and the Deschutes River. 7. Environmental Consequences. The Board finds that allowing surface mining activities would have adverse environmental consequences on wildlife habitat- *and the scenic qualities of the Deschutes River corridor. Surface mining activities would reduce the available cover and forage at the site, which would cause increased competition among deer for the remaining forage and cover. Some wildlife would be forced to leave the area to find other food sources and cover, thus adding more competition in other areas for these resources. Increased truck traffic associated with mining activities could increase the mortality rate for the area's wildlife. Scenic views from the Deschutes River corridor would be adversely affected by fugitive dust and by possible • increased destruction of vegetation and changes in topo- graphy. In some cases over the long term surface mining can be beneficial to environmental values in that it gives an opportunity for a site already desecrated by the actions of man or otherwise lacking in natural values to be improved as part of the reclamation process. There is no evidence to suggest that this is. one of those instances, since in any event the current operator would have to reclaim those portions of the site that are not grandfathered. 8. Energy Consequences. The Board finds that the energy conse- quences of protecting the mineral resource over the other natural resources would be to increase the energy consump- tion at the site due to fuel expenditures needed to run the heavy equipment and processing equipment as well as the fuel expended in transportation of the product to its end use. Although pumice is not as necessary a mineral as sand and gravel is, it is still a basic material and chances are that energy would be expended in obtaining a substitute material. There would be no negative effect in protecting the pumice resource. • 7 - ESEE FINDINGS AND DECISION - SITE NO. 303 EX~II{~ Paqe _...~of_ r 0- Protection of Goal 5 Resources 9. Economic Consequences. Protection of Goal 5 resources could preclude or curtail mining at the site. Deer habitat is in limited supply and the proposed surface mine would cause displacement of wildlife and increased competition in remaining unaffected areas. The scenic views in the Des- chutes River corridor could only be fully protected by precluding or placing limits on mining. The Board finds that pumice resources are a commodity with a market value. Failure to allow mining of such resources would prevent the value.of such resources being realized by the local economy. Although the number of jobs represented by the local aggregate industry is small in number, manufac- turing jobs tend to pay at higher.rates than those found in the service sector. Pumice is not thought to be-in short supply in the County. This coupled with the fact that pumice is not as essential a mineral as is aggregate would make for much less of an economic effect if conflicting resources were to be pro- tected. Still, pumice does have.value as a material for building blocks and as an export for the local economy. w 10. Social Consequences. Considering the fact that pumice is in relative abundance in Deschutes County, the social conse- quences in protecting the conflicting Goal 5 values at the expense of the pumice resource would not have the same kind of social consequence that failure to protect aggregate sources could. In general, whatever the social consequences of not allowing increased pumice mining at the various pumice sites,, the effect would not be great. 11. Environmental Consequences. Protection of the natural resources would preclude mining at the site. The noise, dust traffic, human presence and disruption of habitat associated with surface mining is inimicable to the protec- tion of scenic resources and wildlife habitat. Therefore, protection of the natural resources by precluding mining would have positive environmental consequences. As with mineral resources, wildlife resources and scenic resources are limited by.locational factors. Wildlife habitat is continually shrinking in the face of increased development. Scenic views cannot be recreated by the-actions of man. 12. Energy Consequences. The Board finds that the energy consequences from preserving the conflicting Goal 5 resources would be neutral for the reasons set forth in paragraph 8. • 8 - ESEE FINDINGS AND DECISION - SITE NO. 303 DNA 8 _32_5 • 13. Relative Values of the Conflictin Resources The Board finds that based upon the ESEE consequences discussed above, the Goal 5 resources and the aggregate resource are impor- tant relative to one another. This finding is based upon the following facts: (a) Pumice has value for the economy of Central Oregon as an economic commodity. Given the quality and quantity of pumice present at this site, this is a significant pumice site. (b) This site has been a mining site of long standing. (c) Deer habitat is continually shrinking in the face of new development.. .(d) The Deschutes River is among the most important natural features in the County, as has been demonstrated by the Ragatz survey and by the designation at this site by state and federal designation for Scenic Waterway status. (e) Preserving the natural qualities of 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 of the aggregate resource shall be limited by protection of the Goal 5 resources. Conflicting Uses Protection of Mineral Resource 14. Economic Consequences. The economic consequences of pro- tecting the pumice 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 values. This same analysis shows that there has been no appreciable decline in sales of these or similar types of properties. 9 - ESEE FINDINGS AND DECISION - SITE NO. 303 EXIUbit, Page ` of The most significant impact to surrounding property owners would be if regulations to protect the mineral resource were enacted that would make surrounding properties unbuildable. One potential cost to the community at large is the cost of road repairs necessitated by increased heavy truck traffic on public roads. Another potential cost to the community at large is the possible effects on the region's tourist indus- try. Tumalo State Park is a major recreation site in the County, and adverse impacts to the park could have an effect on visitor's attitudes toward the region. Allowing surface mining activities at this site could have some short-term negative impacts on the ability to utilize this property for other uses. However, there is no shortage of land in the County available for development for the uses allowed in the zone. Furthermore, surface mining is a transitional use, and after reclamation the land surface would then become available for other uses. • 15. Social Consequences. Preserving this site for the produc- tion of mineral and aggregate resources would have a major impact on the-quality of life associated with the other land uses in the area. The negative impacts of noise, fugitive dust emissions, and increased truck traffic would adversely impact the livability, scenic quality and compatibility of other uses in the vicinity of the project as set forth above. Such impacts may be mitigated, however,. through environmental controls on the mining operation. 16. Energy Consequences. The Board finds that preserving this site for the production of minerals would most likely have neutral or slightly positive energy consequences. As stated above, the energy consumed on site by mining equipment is likely to occur at Oome'source in any event. To the extent that surface mining-would preclude or discourage development of the surrounding rural lands, the energy consequences would likewise be positive. 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 11 above. The Board further finds that such impacts can be mitigated. Protection of Conflicting Land Uses 18. Economic Consequences. Most uses in the surrounding zoning designations are classed as noise sensitive uses for pur- poses of DEQ noise regulations. Farm uses may be noise sensitive uses in certain situations, such as with livestock operations. Protection of surrounding conflicting uses can have the effect of precluding or limiting further surface 10 - ESEE FINDINGS AND DECISION - SITE NO. 303 • :V Ejb{ Page mining activity due to noise regulations. Likewise, dust, traffic and aesthetic impacts can place constraints on surface mining operations amongst conflicting land uses. 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 impacts associated with surface mining would be prevented. However, protecting-the conflicting land uses, especially in rural sites such as this can also have negative environmental impacts. Thus, if the site and surrounding areas become developed, they, too, can have a detrimental impact on wildlife habitat, reducing the overall supply of food and cover and increasing competition for adjoining undeveloped habitat. Likewise, scenic values could also be negatively affected by development where there is none now. 21. Energy Consequences. Allowing development that would preclude or curtail mining at this site could create greater overall energy consumption. Increased development at this rural site would increase energy use from those living in or patronizing the allowed uses. Such development would likely lead to a long term energy commitment because of the life span of such development. 22. Relative Values -of Aggregate Use and Conflicting Uses. Based upon the analysis of the ESEE consequences of protect- ing the identified conflicting uses and protecting the mineral resource and the relative weight of the conflicting uses and the mineral resource, the Board finds that with respect to existing development both the mineral resource and the conflicting resources and uses are important rela- tive to one another. This finding is based upon the follow- ing facts: (a) Facts Ja) and (b) from the paragraph 13 above; (b) Existing conflicting residential uses are important in that they represent an economic commitment to occupa- tion and development of individual parcels of private property.- Associated with such commitment are econo- mic, quality of life and health and safety expecta- tions. 11 - ESEE FINDINGS AND DECISION - SITE NO. 303 ~]Ib~ page_'e (c) The use at Tumalo Park and sites along the Deschutes River are 7 important as a major recreational site in the County. Accordingly, the Board finds that pursuant to OAR 660-16-010 it will limit the use of the mineral resource and the existing conflicting uses surrounding the site in favor of each other. Potential development in the impact area is not significant enough to be considered to be a use that would limit the use of the aggregate resource at this site. The displaced future uses can be accommodated on other lands in the County.. There is no compelling need for them to occur at or near this site. PROGRAM TO MEET THE GOAL 23. The Board finds that in order to protect both the aggregate resource and the conflicting resources and uses, the site on top of the plateau will be zoned for surface mining, subject to the following ESEE conditions: (a) Setbacks shall be required for potential conflicting residential and other development; • (b) Noise and visual impacts shall be mitigated by buffer- ing and screening, with particular attention paid to screening from Tumalo State Park or the eastern, north- eastern and southeastern boundaries; (c) Hours of operation shall be consistent with DEQ stan- dards and applicable county ordinances; (d) Wildlife restrictions set forth in ODFW's letter of August 10, 1989, shall apply; (e) Excavation shall be limited to five acres with ongoing incremental reclamation (subject to DOGAMI review and approval); (f) Mining operations, including placement of processing operations and equipment and excavation and transport of material shall meet all applicable DEQ noise and dust standards. The Board finds that processing on site will be allowed. Conflicting Resources 24. The Board finds that surface mining use of the site will be limited by conflicting natural resource considerations by 12 - ESEE FINDINGS AND DECISION - SITE NO. 303 Exhbit _JQfi. Page ` of ~a'~- the provisions for screening and buffering to mitigate noise and visual impact. The Board further finds that the winter closure of the site will offer protection for deer herds. The Board finds that the screening and buffering ESEE requirements are met by the screening and buffering require- ments in the Deschutes County zoning ordinance, as amended by Ordinance 90-014. The Board finds that such mitigation will not prevent the County from achieving its goal, since the site will be allowed to be mined. The Board finds that the winter closure will not be unduly restrictive, since it occurs at a time of the year when road construction projects are not typically underway. Mineral Resource 25. The Board will protect the mineral or aggregate resource by zoning the site SM to allow for surface mining activities. The Board finds that Surface Mining Ordinance 90-014, adopted as part of this surface mining package, allows mining activities such as extraction, processing, crushing, batching, and other mining-dependent uses as permitted or conditional uses and activities in the zone. Conflicting uses, such as residential uses that would irretrievably commit surface area to other uses and otherwise conflict with surface mining are not allowed uses in the zone. Agricultural and forest uses are allowed in recognition that such uses can occur without irretrievably committing the property to uses other than surface mining. In this manner the surface area of the mineral or aggregate resource is protected against establishment of uses that would prevent mining of the mineral or aggregate in the future. Such protection advances the goal of protection of sufficient mineral or aggregate resources to meet the County's mineral or aggregate needs.--- 26. The Board finds that imposition of a Surface Mining Impact Area (SMIA) combining zone as a one-half mile buffer sur- rounding the SM zone, as set forth in Surface Mining Ordi- nance 90-014, will further protect the aggregate resource and the Board so zones the one-half mile area surrounding the SM zone, except to the extent that such buffer area would extend inside an adjoining county or the urban growth boundary of the City of Bend or Redmond. The Board finds that the SMIA zone limits conflicting uses as follows: (a) New conflicting "noise-sensitive" and "dust-sensitive" uses, such as single-family dwellings, may be sited within the SMIA zone only if the applicant has signed a waiver of remonstrance precluding protest of any surface mining activities, and closer than one-quarter 13 - ESEE FINDINGS AND DECISION - SITE NO. 303 Page.W-L.o ` • mile to storage and processing sites only if the applicant can demonstrate that the proposed use will not cause a mining operation to violate the siting standards; and (b) In all cases new conflicting "noise sensitive" and "dust sensitive" uses must be located no closer than 250 feet to an SM zone. The Board finds that these provisions satisfy the ESEE condition that residential and other development be subject to setbacks. The Board finds that such a provision is sufficient to protect the aggregate resource from conflict- ing future development. 27. The Board finds that, in combination with the action-taken on other aggregate sites, zoning the site for surface mining and protecting the site from future surrounding conflicting land uses, the County's goal of preserving sufficient aggregate resources to meet the needs of the County have been met. Land Uses 28. Existing conflicting land uses, if any, are protected by the requirement that newly sited surface mines or expansion of existing surface mines meet screening requirements, setback requirements, noise standards, adhere to limits on maximum area of surface disturbance and other limitations. 14'- ESEE FINDINGS AND DECISION - SITE NO. 303 a EW1WAt page . -t,- ment Reproduces Poorly (Archived) NEIGHBOR TESTIMONY Transcript: David Whistler 35-37, 87-89 Lynn MacNeill 37 Eric Hoffman 37-38 Helen Whistler 38-40, 94-96 David Newbold 40-41 Paula MacNeill 41 Gretchen Valido 41-42 David Adams 42-43, 89-94 Ronna Hoffman 43,110 Peggy Davenport (by Randy Miller) 43-46 Dr. Ray Tien 46,109-110 Patrick Todd 46-47 Chris and Steve Cranston 47-48 Mike VanWaas 48 Rex Gibson 49 Chris Lomax 50 David Bilyeu 50 Oregon State Parks (by Chris Parkins) 77-78 Tom Triplett 96-98 Craig Davenport 98-100 Donna McGovrin 100-101 Patrick Gisler 105-109 • Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 look at the new application, but it sounds like the proposed mining of the • tuff is going to be removing substantially more material than what was originally proposed in the ESEE analysis. And what I'd like to suggest tonight is that the surface mining area was granted on the basis of an ESEE analysis that only analyzed 750,000 cubic yards of material, and of pumice in particular, and if the applicant is interested in expanding what they are doing then a new ESEE analysis is probably warranted at this point, specifically there is new information, not just about the resource that's going to be removed, hence requiring a new balancing, but there's new information about the significant impacts that could have to surface water or ground water in the area given the fact that there's new information regarding the flow, the underground water, towards the wells. At the time that the original application was granted and that the original ESEE analysis was done, and the DOGAMI report was written, the DOGAMI reclamation report was written, the only information about the flow of underground water was "unknown". That information is now supplied and given the fact that there is new information, there's a new proposal to significantly go beyond the old ESEE analysis, it's entirely possible that a new balancing would come up with a difference balance, that given the importance of the drinking water supply in that area and the impact to the recreation and the impacts to the homeowners that we would have a difference balance today than we did then. I look forward to reading the new application and submitting to you comments that are more appropriate only to that • application, but I would like to welcome, I have several people here who have been very concerned about this proposal. Briggs: And very patient and I appreciate that. Hardy: And give them an opportunity to tell some of their stories. Do you have any questions right now? Briggs: No. Whistler: Good evening. I'm David Whistler, W-h-i-s-t-l-e-r. I live at 64194 Tumalo Rim Drive. I'm here representing the Tumalo Rim Water Improvement District. We are an Oregon 554, I'm representing the District and all 53 members of the District and at the behest of the Board of Directors of that District this evening. I do have written materials which Pam will submit and it has my background in there. I am a geologist with 40 years experience so. We are a 544 corporation incorporated in 1982 for the purpose of providing water to the Tumalo Rim area. We have priority water rights in this regard. In 2003 the State of Oregon, Department of Human Resources Drinking Water Program defined a water protection for our wells as Ms. Hardy has already pointed out to you. This is summarized in what's called a SWAR report, a Source Water Assessment Report, as part of my • submittal that I'm giving you tonight, but it is a State document also. The 35 important thing is that our water comes from directly under what is now proposed to be an expansion of a mining area and what, until four hours ago, was going to be a great expansion of a processing area and everything else, and we understand that that's been modified somewhat, but it's still the mine and now apparently a lot of material being brought into the mine, which is of great concern to us. It's still sitting right on top of our water supply and within, mostly within the two year time of travel zone of our water supply, so any contamination that might be inadvertently added to the water supply there will reach our wells in two years, at which point our wells will become worthless to us and we won't be able to use them. What those 53 homes that we represent I won't know, will do without their water then. The activities that are currently going on and what was proposed, but even what they're still proposing to do, and the materials their bringing in create a great risk to our water supply we feel and the Department of Human Resources Geologist has provided for us, and it's in our report, specific recommendations that he makes that what should be done in the case of this mine based on his experience all over the State of Oregon if there's going to be continued processing of materials on this, on this site. Based on these things we think these issues need to be addressed. Water issues definitely need to be addressed. We would actually recommend a repose to any further activity on this site until all of these are addressed. And I'll keep it very, that's, I do have my report. It's about 50 pages long and I'm sorry you have to read it. I wrote it, but you have to read it. Briggs: I will read it. Whistler: I'm a retired academician so what can I say. So, I'd like to also quickly comment, and other people will add additional comments, Mr. Dewey has already pointed out that there seems to be a large volume of foreign material being brought onto this site, possibly within mind at one point that they were going to crush and process this. I have actually spent seven hours in the last two days sitting on a tree stump across from the mine counting trucks and counting what's in those trucks, so this is direct observation on my part in those seven hours. And I did it, I spread it over the whole day, over two days, an hour here, an hour there, morning and afternoon. There was 109 trucks that either entered or exited the, the parcel in those seven hours. Of those trucks 48 of them contained debris from constructions sites that appeared. Things like chunks of asphalt, chunks of concrete, dirt, grass, you name it, was in the things there. I'm not sure what they're doing with that material. If you extrapolate that over a one week time and number of people, and you'll hear from other people who made observations, we have been making photographs of these also, but that's 2,500 tons a week of material, conservatively, which is, these are all, all of the trucks but one were single ten ton bedded trucks, would be 2,500 tons of material a week is being deposited at this site. We've been observing this going on for two months, so if you extrapolate that over two months, that is 10,000 tons of 36 material had been dumped on that site in the last two months. This clearly is • a risk to our water supply. This is unknown material from unknown places. We don't know where it's coming from. We don't know what it might contain, and the Department of Human Resources Geologist, who is in my report, has addressed the fact that that kind of material is a great concern to a water supply. With that I will fill my name out here and get out of the way here and let some other people, since the evening, it is in my report, and I've made a copy for both of you. Briggs: Okay. Whistler: One for you and one for you. Briggs: So, if you could, thank you very much. And thank you for making a copy for me. It's very hard to read on the County's web site. And if you want, as one person is speaking if the next person would come up and sign in and then wait, so it might make things go a little bit quicker. MacNeill: For the record my name is Lynn MacNeill and I live at 64228 Tumalo Rim Drive. I don't intend to have any remarks whatsoever about what's been said already. I want to add one more issue. It has to do with the traffic safety. My hair might not show it, but I do like to ride my bike in that loop that goes around, includes Johnson Market road. I'm sure that if you were • able to get in touch with all of the other hundreds of bikers who ride that loop on a very, very regular basis, they will tell you the same thing I have observed and witnessed is material being spewed from these trucks and falling on the road. I don't know of anybody who personally has been hit by the material. I have ridden by recent spills that included rocks, asphalt, tree limbs. Had they fallen close to me it would have not only been a safety issue, it could have been deadly. I'm sure the other bikers who could come up here and testify, there may have been some that have been knocked off. That's not entirely the applicant's fault with his increased trucks because there are others doing it too. None of the loads that I observed personally are covered. That doesn't say that some are not covered. I just have not witnessed any recently that have been covered. So that material spews out on the road and it affects more than just Tumalo Rim homes. Briggs: Thank you. Hoffman: My name is Eric Hoffinan. I live at 64000 Johnson Road, Bend. I want to give you some of my observations that closely parallel the observations of the various people that have already talked. However my property or my wife's and my property border this monster, the way I would like to call it, about three quarters of a mile, so I get to look at it all, every time I drive into the property and every time I drive out of my property I got to look at this • mess. When you talking about, I had no idea that there was 25 trucks 37 coming in there every day and he mentioned only for two months, but believe me they've been coming in longer than two months. Since these people took over this property in the winter of 2007 it never remotely resembled the type of operation that was there for the eight years prior. I bought my farm in 1997 and the only reservation I had when it came to whether I was really going to buy it or just look at it was what was going to happen to that property. It turned out that the owner at that time was a family by the name of Criswell and she was an environmental attorney who was obviously greatly concerned at exactly what type of operation was going to take place there. It took almost a year for this application to be approved and in our discussions and my subsequent conversation with the Cascade Pumice I was relieved to know that at the end of eight years it was going to be finished and put back in good shape and probably would be developed in some kind of a house, farm or a house development, but certainly not a, continue as a mining operation. When this property was sold last November, December, I did not come back from, I don't spend all my time in Oregon. When I came back in April or May I couldn't believe what I, what I saw. These people are not mining people. As some other people have said at this podium, they are excavators. And I don't know why, how all of a sudden they decided to become mining people, but they're not mining people. I've been in the construction business for 60 years. I know a little bit, don't know all that much about excavators, but I know a lot about them and I'm not too proud of a lot of them that worked for us, but this guy that's working over there now, he has no regard for the law, he has no regard for any rules. I complained to the Deschutes County, went out there and determined that they were in violation of their permit, wrote them a letter, they didn't do a darn thing about it, they just kept going. They don't care what goes on. They don't care about the neighbors. They don't care what their property looks like. They are just one big pain in the you know what. And it's just a shame to have a beautiful place like we have and have to put up with that sort of thing. And here they are asking for a permit to do something that they've been screwing up out there for 14 months and now they're coming around and asking for a permit. It just seems ridiculous that people can get away with that and disturb as many people as you have seen are disturbed. And they are, they have every right to be disturbed. And if you or somebody in this County doesn't do something about it, I've had to bring suit against these people and if this doesn't work I'm going to sue them. There's no other way to stop them. They don't, they don't play by any rules. They just play by the rules that they make and it's really very, very upsetting. So before I get even madder I'm going to stop. Briggs: Thank you. Next? Whistler: My name is Helen Whistler. W-h-i-s-t-l-e-r. I live at 64194 Tumalo Rim Drive. • 38 Briggs: Any relation to David? Whistler: Yes. I'd like to say that I have been a resident of Tumalo Rim Drive for six years. We have owned property on Tumalo Rim Drive for 14 years. So we are quite well acquainted with the ins and outs of the traffic and what happened with the prior land use approval. I actually have numerous areas of concern regarding this particular land use application, but I wanted to make a couple of remarks about some of the testimony you've already heard. There are currently double unit trucks going in and out of that property. In fact one of the double unit trucks is the only truck I've ever seen covered. And he stops before he exits the property and puts his tarps on. No one else has ever been tarped. The other thing I'd like to remark is it's interesting that when the phenomenal pictures were shown of the mine they showed a lot of pictures of the water tower, of the water pipes. We never saw a picture of the mine. So it's not available to we common folk, but I would be very interested in seeing some of that. Actually there are very serious implications to proposed mine extension and the expansion. And I realize that site 303 is zoned surface mining, however we as neighbors and taxpayers expect that laws in place to protect our health on all levels are enforced and that our property values are protected to the fullest extent possible. Without observance and enforcement of environmental laws, lifelong health issues could result without observance and enforcement of required mitigation, the law benefits only those with an imminent power base. For example I am concerned about the continued mining of pumice, which during the mining process produces pumice dust. Pumice dust of the type mined at site 303 is composed of between 66% and 72% Silica. Silica has been identified as highly carcinogenic, particularly in the dust form. It's very well documented on line. I will, when I submit my letter, provide some written documentations and annotations where that can be found. This particular concern increases when I note huge clouds of white colored dust arising from the mine and the cliffs next to the mine resulting from the mining activities. Even when the mine is not in operation or when there are winds, particularly in the summer and fall. This is particularly notable as you're traveling O.B. Riley Drive above the State Park, can look out towards the left and be able to see the clouds of dust rising. And I think it's notable that the clouds of dust are not coming necessarily from the mining area, but the open face of the mine, which is a very perpendicular area. And I don't see any way that they could possibly mitigate the dust with that. The original permit under which Latham is operating was granted. It was for a specific period of time To extend this permit to mine a known carcinogen is not acceptable. I mentioned rie y that the clouds of dust are very notable, particularly in the summer when it's dry. We of course cannot document this because this application was made when the rainy season has started and when we started having snow. We were not notified of this, by the way. The Water Association was not notified of this hearing nor were very many of those in our Homeowner's Association. However, I am a 39 fairly avid hiker and bird watcher. And I know that more than, I've got pictures of four different locations within the State Park when the mine is clearly visible and during operations when you can hear the noise. The noise tends to come across that valley and up into the State Park area. However, one of my main concerns is that the transportation of excavated materials from off-site locations on mining site 303 is not included as an activity permitted as part of the permit under which Latham is currently operating, yet this has been observed and documented tens of times a day. Also the loads of these trucks are not covered and this does not prevent the escaping debris and we were assured as residents when we had the hearing in 95 and the Hearing Officer concluded that they would be. In fact the then permit holder assured them they would be. They simply are not. Actually this knowing pursuance of activities outside of its conditional use permit does not lead me to believe that they will follow the requirements set out in any new conditional use permit. I don't get as angry as Mr. Hoffman about it, but I would say that they are, I would say their attitude from what we have seen with the number of trucks, where they're bringing their materials from is it's better to ask for forgiveness than permission. And I think that is the attitude they have. Thank you. Briggs: And you wanted to submit some items. (Inaudible) Is Newbold: My name is David Newbold at 19615 Tumalo Rim Court. Briggs: And how do you spell your last name? Newbold: N-e-w-b-o-l-d. Briggs: Okay. Newbold: I'm going to be very brief. I didn't anticipate how long we were going to run here. Briggs: We never do. Newbold: Also made the same sort of mistake in 1996. We didn't anticipate the, I was part of the protest for the, or at least the review of the operations of Cascade Pumice. They seemed very responsible relatively speaking. And we were led to believe that there was going to be something like eight years of mining operations and then things were going to cease, and it's interesting to see that, no reference to that, in the staff report. Any case, as a Board member of the Tumalo Rim Water Improvement District I also am very concerned about the water situation and it was only until testimony tonight that I realized the severity of what's going on there. And I can also say that 40 my wife and I can hear heavy equipment sometimes as early as four o'clock in the morning. Briggs: Okay now where do you live in relation to the site? Newbold: We live almost directly north, north and a little east. And I can't say for sure that it's Latham, but I don't know who else would be, where else that noise would be coming from. So I'm really just want to, the many residents of Tumalo Rim subdivision, that is very concerned for what may occur in the near future. That's all I'm going to say. Thank you. Briggs: Thank you. MacNeill: My name is Paula MacNeill. M-a-c-N-e-i-1-1. I live at 64228 Tumalo Rim Drive. And I am associated with the other MacNeill who spoke. I will be briefest of all. I just want to say that I have lived there for 12 years and I am very concerned about the air pollution, the danger to our water, and the fact that we have unknown materials being brought in and dumped into that site. Thank you. Briggs: Thank you. Valido: I am Gretchen Valido. I live at 19681 Ridgewood Drive. Briggs: And how do you spell your last name? Valido: It's valid with an o, V-a-1-i-d-o. Briggs: Okay. Valido: Okay. My main concerns revolve around water, noise, air quality, and possibly cutting of trees. I am concerned about the quality of life for the wildlife in the State Park and the surrounding open space areas. The noise, the trucks, the movement, the traffic will all disturb the wildlife. I wanted to bring up the fact that a private school has purchased property near the State Park and they have plans to build in the future, which would bring a lot of young children into the area who would be affected by the air quality. Briggs: Okay. Which part of the State Park? Across the river or south? Valido: It's off of Tumalo Reservoir Road so it's north of the bridge. Briggs: Okay. Valido: And I wanted to say that my husband has asthma and takes medication every day and those kinds of fine particles in the air do affect his breathing ability. 41 And I'm sure that with the surge of asthma there will be a number of children at the school who might be affected by that as well. I just feel as though this activity is inappropriate for this area and would ask you to deny the permit. Thank you. Briggs: Thank you. Adams: My name is David Adams. Middle initial A. There are about four or five David Adams' in Bend and you occasionally get each other's medical bills from Bend Memorial Clinic. I live at 64222 Tumalo Rim Drive. I had prepared written comments, but two of my major concerns were eliminated with the modified application and Mr. Bernstein very ably addressed my third concern. In the meantime I thought of a couple of other things that should be mentioned having to do with the area of traffic safety. Johnson Road is a very popular route for bicyclists. Some people have mentioned that they bike there. In addition to that it's a very popular area for organized rides. You already see bicyclists out now even with the slightly improved change in the weather that we've noticed in the last few days, but during spring and summer months, and even into the fall, many of the bike shops in town such as Sunnyside Sports and various other sports shops organize rides, and these don't always occur just on weekends when you might expect that there would be limited mine activity if any at all. Sometimes they organized what they call lunchtime rides, which can take place you know around the middle of the day during the week. So you can expect to see a lot of bicycle traffic as the weather gets warmer and the concern here would be traffic safety where the bicyclists are mixed in with trucks. Also the Cascade Classic bicycle race typically has one of it's stages at, utilizes Johnson Road typically from Shevlin Park Road up to the Tyler Road intersection down Johnson, past the mine, through the intersection of Tumalo Reservoir Road with Johnson Road onto O.B. Riley and then up the hill past the Tumalo State Park, and so they're making several loops there. And again depending on the day that that particular stage was run there might be bicycle traffic mixed in with trucks. Briggs: When does that typically... Adams: It usually occurs in July. Yes. There was in 2004 a fatality, a motorcyclist was killed in a collision with a cement truck near the intersection of Johnson Road and Tamoli Lane, which is close to the entrance of site 303. It was not related to any mine activity or mine traffic, but the reason I'm mentioning that is of course one fatality is too many and anything that's done to increase truck traffic without changing any other parameters can only increase the probability of truck involved accidents. So again that would be a concern. And also someone else may have mentioned this, but with regard to their previous traffic study I don't know if there are any changes in the modified • application, but that traffic study stated that it did address wet conditions, 42 • but it didn't appear to address any packed snow or ice conditions and just a few weeks ago we did have those conditions and can and typically do get packed snow and ice conditions on Johnson Road anywhere from the fall into spring during some years, so that would be another concern. And that's all I have for now. Thank you. Briggs: Thank you. Hoffman: I'm Ronna Hoffman, 64000 Johnson Road. Briggs: Relative. Hoffman: I'm not, a lot has been said about mining and all of that, but I'm going to tell you we basically moved here from our operation from California because we cared about the quality of air, the quality of water, and we wanted to have something very special, and that's what we started out with. Now our horses, our beautiful babies their eyes are all covered with mucus and stuff because of all the, the quality in the air's not good. I'm worried very much about the water. The water's a major concern. Our land is, we've never had so many deer, coyote, rabbits, all the wildlife is totally disoriented and they're, they're, I mean you look out every day you see at least 12 deer. And this never was before. And I'm, just this whole area has been disturbed and it's not the way Oregon should be. I mean we come here because of the • quality, the air, the land, the water, and I would like to see this preserved. Briggs: Thank you. Miller: My name's Randy Miller and I'm here on behalf of Craig and Peggy Davenport who have a working ranch directly across the street from the entrance to the mine. I'm at 19452 SW Amber Meadow Drive in Bend and Craig and Peggy are at 63895 Johnson Road, and again just as I said directly across from the entrance. And I noticed that earlier in tonight's presentation by the applicant there weren't any yellow dots, although maybe it was used for a different reason, but there weren't any yellow dots to indicate the proximity between the operation and the Triple D Ranch, which is the name of the, not only my clients, but my Aunt and Uncle as a matter of fact, and their property. So I anticipated summarizing their testimony for you, but to be honest with you I've actually timed it and I think if I read it will be actually, it'll actually be more efficient for you, so with your permission I'll do it. Briggs: Okay and you'll submit it into the record so I don't have to take notes? Miller: She may have done it and I'm not positive, which is why I'd kind of like to read it not to mention it's a public hearing and I think if anybody thinks of anything they haven't, they haven't then maybe it'll help. 43 Briggs: And that's fine too. It's just, should I be taking notes or are you going to be giving... Miller: I will if they don't. Briggs: Okay. Miller: And I'll make sure of it so. Briggs: Okay. Miller: So their testimony is as if they were here is our working ranch, the Triple D Ranch at Johnson Road dates back to the 1800's and is approximately 300 acres with 100 acres of water rights. We have owned it for 17 years, raised three sons on it, and slowly changed it from a tired grass hay operation and dilapidated houses to its current state. In 1992 they renovated the 1940 house and they replaced the original homestead house, which had been built around 1900, and they did so in 1998. We are in the business of growing and selling orchard grass hay and breeding horses, goats, and cattle, and long the way we have followed every land use law and zoning restriction and complied with our EFU wildlife overlay and landscape corridor restrictions. As ranchers we have a unique ability to experience chan e in g the neighborhood. During the growing season we are out on our ranch many hours per day to change water as we grow our crops. When the growing season is over we spend many days repairing or replacing irrigation systems and parts and we move our hay from September through March and then the new growing season is upon us and the cycle begins again. These activities have us working out on the ranch year round and we are able to experience, hear, and feel the difference in the neighborhood. As I mentioned the ranch is located just west and directly across from Latham Excavating's property and their entrance is opposite, the Davenport's entrance is opposite the entrance to the mine and borders Johnson Road for approximately one mile. In fact as you head up south, actually southwest to the Tyler interchange or Tyler junction, that's the corner of that property, so you can imagine that one mile leading from just below their entrance, past the mining operation, and on up. And so that location gives us a unique perspective from which we experience the operations of a pumice mine, both historically and currently. The previous owners, Cascade Pumice, had permission to mine pumice and agreed to remediate the property fully upon completion as a part of the permit process with the County of Deschutes. We have experienced the difference between compliant land use practices and zoning restrictions by Cascade and those of the new owners that apparently believe it is easier to ask for forgiveness than permission with their noncompliant uses of their property, which is a theme I heard at least 0 stated exactly the same way once tonight. Apparently without permission 44 • from the County Latham Excavating, the new owner, was able to bring in material from other sites rocess it d d i b , p , an sen t ack out all the while being noncompliant with land use and zoning restrictions. It was necessary for the Hoffinan's of Tailwind Farms to file suit in order to stop the violation by Latham and the Davenports remember when Cascade Pumice agreed to mine pumice without drilling, blasting, or crushing on site and then remediate the site fully upon exhausting the pumice source. To our knowledge Cascade was compliant with intended and allowable uses of the property. Cascade was attentive to the agreement with neighbors to manage traffic, air braking, hours of operations, etc. While living next door to a mine is never desirable it has been tolerable because we knew we had negotiated the prior permits through the County with Cascade and it was just a matter of time before the final step of full remediation would occur. We have been patiently waiting for this to occur and when Cascade was granted the current permits we did not object because we understood and relied on the limitations of the operations. Upon the sale of the property to Latham we have experienced the difference. We have seen the increase in truck traffic, picked up the garbage along the road that comes with it, we have paid thousands for untold repairs to fences when people drive off Johnson and the incidents of this is increasing. We have heard the increase in air braking as the trucks roll down Johnson along the one mile stretch of that road where it borders our ranch and we can see it from our home. We have counted the increase in dead deer as habitat further fragments and they try to • cross a now busier road. We have felt the differences, loaded trucks pass us by on the road, and we sense tremendous disappointment in the prospect that this application should be granted. Of course my aunt and uncle don't have the benefit of knowing, at least not as we sit here today, that the application apparently is completely different than it was yesterday. In fact I'm encouraged by some of the comments that have been made that maybe it won't be as invasive, but I'm not ready to bank on that and the only clear thing is we don't have an existing application to deal with. We don't know what it's going to be, what it's going to entail. We certainly have seen before, at least those of us that do this for a living, the reasons, the various reasons that someone might in fact change an application and so I'm not ready to bank on the idea that there won't be additional items that come later in what could be along process. So I'll be sure to inform them when I talk to them, but as long-time ranchers who have a tremendous respect and love for the rural ranching lifestyle and year by year, permit by permit, we experienced the change on our ranch. Of late these changes have been palpable. If this permit is granted we can only imagine the difference felt on the Deschutes River by the visitors to the Tumalo State Park whether they are there for picnics, tubing, or other recreational uses. Granting the requested permit would further impact our area. We see the decrease in deer and elk herds due to noise and further habitat fragmentation. We don't see any wild turkey anymore and the number of bald eagles is declining. We • see the spook factor in our livestock when we are about the ranch. The 45 noise levels and traffic are at an all-time high. Our ranch and our neighboring ranches and homes need the protection that the County can give it by denying the application. This should include crushing, drilling, blasting, and striking any building to house their headquarters, and to include the parking of many trucks and/or cars on the site. We are very concerned that these activities and approval of the permit will increase the noise levels additionally to the point to negatively impact our breeding horses, goats, and cattle and we hope the County requires the owners, the new owners, to complete the last step of the current permit to fully remediate the land. It's what we all agreed to when the original permit was granted and what we all counted on when we did not oppose it in the late 1990's. Thank you for your attention. And again I'll make sure to get this to you if she confirms to me she hasn't sent it to you already so thank you. Briggs: Okay. Thank you. Tien: Hi my names Ray Tien. Last names spelled T-i-e-n. I'm at 63890 Johnson Road and so that's the piece of property just to the south of the development, the EFU property. I'll be brief. It's, I'm a new resident to Tumalo. I moved my young family there for a lot of the qualities that the long-time residence of Tumalo have just spoken about and I'm disappointed to hear two such disparate stories tonight, one from the applicant and one from everybody else it seems. But, my issue is one ground water. We may actually have the well that's closest to the mine and it's a well that's shared by three properties. The Kemples, the Cranstons, and the Gibsons, and so I'm very worried about our ground water supply. I think another issue that maybe hasn't been brought up is if there is a lot of material being brought in, what impact that has for the surface water because of its proximity to the Deschutes River and you know I think that, the truth needs to be found out about what's coming into that area and if there is going to be an impact to the surface water. The last point I would make is the noise studies. I actually got home from work early today and although the noise levels aren't great, what is impressive about the mine is the low frequency vibration that you get from the mine. So it's not necessarily something that you hear, you do hear a low frequency rumble, but it's also something that you really feel in the property. You feel it in our house quite profoundly and that probably, I suspect, has an impact in terms of wildlife in the area as well as certainly the enjoyment for me at our property. So thank you. Briggs: Thank you. Todd: Hello my name's Patrick Todd. I'm co-owner with Alan Todd. We own the, our property borders the east property line of the mine. It's about a quarter mile worth. Our property borders the mine as well as a quarter mile of Deschutes River frontage. Not, I agree with all the other statements out . here, but without going back into that one of the big topics for us is we're 46 high end builders, residential construction. We bought that house for the • intention, it, I did two weeks due diligence on that property prior to buying it. It's got major overlay zonings, it's got landscape management, it's got Deschutes Scenic Byway, and surface mine overlay. We bought the property in 2005. At that time I met with the manager that was running Cascade Pumice. I spent half a day with him, walked the mine, took me to another site and showed me what the circumstances were. The biggest concern to buying our property was that mine. He basically told us what his permit allowed. He gave us a timeframe in which he felt that that pumice would be removed, and now those perimeters now are basically changing. Our biggest concerns is our property value. Our intentions with that property pretty much gets thrown out the window if this mine is allowed to increase in size as, and longevity as far as work being performed. So that's our big concern and I also have a letter that was written from Alan Todd I'd really like to submit as well. Briggs: Okay. Thank you. Cranston: We're Christ and Steve Cranston. We own and live on the property adjoining. And we have owned that 80 acre piece which has now been divided since 1975. We have many concerns which have already been mentioned and I'll submit my letter and then I'm getting the feeling that I'll also have the opportunity to submit additional... • Briggs: Oh year. Cranston: As this changes. I'm just, I am, just from what I've heard tonight a lot of stuff that I didn't know about that was happening down there. I can't believe the County hasn't shut `em down since it's a mine not a, it sounds like it's turning into a dump. And when this was opened back in 95, 96, they predicted that there was going to be probably two trucks an hour coming in and out of there. And one was going to be going, filling up going to Cascade Pumice and that one would empty, come back, while the other one was filling, so it was just kind of a constant flow, two trucks an hour, and now there's trucks going everywhere. These two trucks were going on one path straight down the road, left, down O.B. Riley, across the highway, and now they're going up Johnson Road towards Shevlin Park. Sounds like they're coming that way also. They're going up the State Park, up the road that goes in to Bend, up O.B. Riley, so they're, so the traffic is, you know, the traffic is totally changing from what it was back in 95. And the noise study that was brought to our attention by the expert, we can, I can sit on my front porch and hear the workers talking down in the pit, so we're kind of like a funnel. Every, all the noise that comes, so it would, so the decibels that are coming out of • the rock crusher would be like we were right there, so I don't think they've 47 studied what the noise is going to be like up where the people are up on the rim `cause the noise just kind of travels up there and so it's like a funnel. What else was I. And I'm hoping that before you guys make a determination you guys go out there with the County and look at the site, see what's being done, `cause it sounds like, I'm not the type of person that trespasses so I haven't gone over to see what's going on, but it sounds like there's a lot of stuff going on. The County should be out checking to see why stuff's being brought in, so much stuff's being brought in and left there. And that's our concerns. We're just hoping that the eight years is up and things are going to go back to the way they were before 95. VanWaas: My name is Mike VanWaas. Last name is spelled V-a-n-W-a-a-s. Address is 64274 Keith Court. That's, now I don't have the Google maps in front of me, but that's roughly three quarters of a mile to a mile off site. I'd like to just say a couple of things reinforcing some of the testimony that you've heard today. I'd like to reinforce what Dave Newbold said about sounds on, off the site, in the early morning hours. We will often hear heavy construction equipment at five, six in the morning. That could be because we are somewhat higher than the rest of the subdivision, but it's coming from exactly that direction. I can't imagine anywhere else it could be coming from and the idea of yet more of that would seriously impact quality of life. I'm also one of the folks that bicycle that loop all the time and one of the things that I'm concerned about is with the expansion of operations they are proposing, not only is there going to be more debris, which you've heard testimony about, but that there is a major bike lane, and a marked bike lane right in front of that entrance to the pit. And therefore even more of the, more traffic is going to increase danger for us. But mostly what I'd like to do is emphasize or request that the trail along, from that, that was pointed out, from the State Park along the river, in the river itself be considered noise sensitive areas. We will often hike that trail up there and it is, you know it's sort of funky to say it's a wilderness experience within Bend, but it's awfully close to that. And expansion of mine operations is going to hit that. Despite my mother's fondest hopes for me, I never became a lawyer, but if you're talking about how is this being noise sensitive areas, the trail really has to be considered that as well. That is used for recreation by hundreds of people. The other thing that I would like to propose is that you also consider the river itself to be noise sensitive simply because there are a lot of boaters on that river, particular the white water kayakers. They are using that for the same reason that we are using the trails. It's a great place to be, great place to get out. They are also going, and I can't speak to them, that level of white water, but that's certainly a noise sensitive area in terms of how people actually use it. And therefore I believe that all the requirements for noise pollution, long-term perhaps, but those two areas, both the river and the trail, be considered noise sensitive areas when you're evaluating the, the application. Thank you. 48 • Briggs: Thank you. Gibson: Hi. I'm Rex Gibson. 63870 Johnson Road. Briggs: And where are you? Gibson: I am right between these two guys, so I'm between the Cranston's and Ray Tien. Briggs: Okay. Gibson: Even though I'm not a yellow dot on there I share the same well. Briggs: Okay. Gibson: As those two other families. And I have a letter that I have submitted that I want to give to you tonight so I'm not going to belabor all the other comments `cause I agree with everything that's gone on tonight as far as in opposition to this particular application. My biggest concern and the one thing I think that we really need to be focused on is air quality and noise pollution, certainly are a high concern for me on a day to day basis, but you turn off the machines and the dust settles and the noise goes away, but if we're bringing in, or if this operation is bringing in asphalt that contains • petroleum products and different things like that and we don't even know what's going on, and it does end up leaching into our well systems, that's irreversible. Water's our one renewable resource that won't be renewable in this particular case. It will affect several, you know, however many families in this area, I mean you're talking about 52 up on the Tumalo rim area as well as the three people, three families that live on this particular well, and anything else in this area. Once it's polluted, I mean, those people won't be able to live there any longer, including myself. And if it isn't caught soon enough I have a two year old and a four year old, I don't know what's going to happen in their health life, and so it's very concerning to me that irreversible damage may be done to our water supply. And so with that I'll respectfully submit this. I also have the Cranston's as well. Briggs: Okay. Great. Lopez: Hi my name is Javier Lopez. I work in there for seven years and I never have problems in riding the horses. And right now have a lot of problems from the noise. So and the other thing I have two kids and I know one of the kids drink the dirty water, whatever you call it, so I think it's. Thank you. Briggs: Thank you. Anybody else. • 49 Lomax: My name is Chris Lomax. I live at 64224 Tumalo Rim Drive. I would also i like to, as opposed to just beating this horse over and over again, just add the water issues and the noise pollution and the air pollution. And a real concern about compliance it sounds like tonight. Thank you. Briggs: Thank you. Bilyeu: David Bilyeu. The last name is spelled B-i-l-y-e-u. I live at 64217 Tumalo Rim Drive. I would also like to add my testimony to the amount of noise I can hear early in the mornings from the site. My bedroom window faces that direction. I can hear the trucks backing up. It starts very early. I'd like to also mention the number of trucks is, the volume has increased dramatically over the past few months. I often see trucks, four in a row, going into that site. I use to be on the pedestrian/bike committee for the County when I first moved to the area. I was on that committee representing that area of the County. It used to be a relatively safe place to bicycle. I have sold my bicycles. I will not ride that road any longer. It is patently unsafe. Those are my comments. Briggs: Okay, thank you. Anybody else? Going once, going twice. Paul. Blikstad: We just need to figure out a time. Briggs: Okay. Paul: I don't, I hope we don't get any rebuttal testimony tonight. Briggs: I am going to have very limited rebuttal and request that we hold that off. Mr. White. I can't hear a word you're saying. White: I'm not going to test your patience so I guess, are we going to try to determine how we're going to proceed from here? Briggs: Yes. Ann I thought that after that first hearing where we continued it I thought Bruce that you submitted a letter tolling the 150 days, but I could not find it. White: I didn't. Briggs: Yeah. I thought we had talked about that and I was going to nail you if, if we didn't get it. White: Yeah I'm nailed. Briggs: So are you submitting a waiver of 150 day? 50 Page 1 of 1 Paul Dewey i From: "Rex & Emily" <rexandemily@gmail.com> To: "Paul Dewey" <pdewey@bendcable.com> Sent: Wednesday, January 21, 2009 11.:43 AM Subject: Re: hearing tonight looks like the last email address was weird. send to rexandemily@gmail.com On Wed, Jan 21, 2009 at 11:42 AM, Rex & Emily <rexandemily@gmail.com> wrote: I did not get the suggested changes can you please resend...rexandemily@gmail com Rex On Wed, Jan 21, 2009 at 11:06 AM, Paul Dewey <pdewey(a bendcable com> wrote: Yes, I got your documents and sent an email back suggesting potential changes in the letters to update f them for the commissioners. Let me know if you didn't get it. Yes, it's at the same place, at 4:00. Original Message From: Rex & Emilv To: pd~wey(@bendcable.com Sent: Wednesday, January 21, 2009 9:17 AM Subject: hearing tonight • • Hello, Did you get my documents? Is the hearing at the same location as before? Rex Gibson 1/21/2009 Briggs: Yes. Anyone else wish to speak in favor of the application? Can I have the gentleman from the Parks Department come forward. Parkins: Thank you. My name is Christopher Parkins. C-h-r-i-s-t-o-p-h-e-r P-a-r-k- i-n-s with Oregon State Parks, High Desert District Manager out of Bend. Mr. White had mentioned that he had expected written response or comment from Oregon State Parks. I wanted to refer to that first. And perhaps this is something to address to Mr. Blikstad, but actually I was not aware of the meeting until. just a couple of weeks ago and that was because Mr. Levi McClain and a couple of the neighbors adjacent to the park informed me that the hearing had been set. So I have not had much time to review the materials. I've been on the road for the last two weeks. But I have looked at them and have reviewed them as well as our Program Coordinator Leatha Crawford. So I'll be brief. The first thing I want to point out is part of the reason I'm here that we went through master planning process in 1986 that included the Tumalo State Park property and surface mining operations was brought up as a concern in our master planning process and at that time we committed in that document to be present at any public hearings that relate to that type of activity in the area. Hence my presence tonight. Also to answer Mr. White's comments about whether the State Park is a noise sensitive or dust sensitive use. I'm not, I'm just a layman so I don't know the definitions of these rules by DEQ standards and that type of thing. So the only reference that I have is the ESEE and according to that when I refer to Section 4 Findings and Decision it mentions under noise sensitive uses all possible uses in the surrounding zones would be noise sensitive uses and then under dust sensitive uses indicates that the Board finds that all commercial, residential, park, or community type uses are dust sensitive uses. So that's all I have to go on and my own personal opinion as well as the opinion of our park users. Tumalo State Park saw 107,248 day users last year, 27,232 campers, and that is about normal for the park. Briggs: How many overnight, I'm sorry. Parkins: 27,232. Briggs: Okay. Parkins: Of course there's a formula for that. If you stood there with a counter I'm sure we'd be off by a few. A couple of other points I'd like to bring up are, that pertain why we have not produced a written comment yet, are that though Mr. McClain was gracious enough to send us some materials to review it did not seem to coincide with what I've seen in the staff report today, for example the introduction to Mr. McClain's materials uses the phrase that there will be no structural accessories or supporting facilities, mentions withdrawing construction of office, shop, and other buildings, but the staff report makes reference to constructing a scale house. So to put the 77 • park perspective as simply as possible, once again in layman's terms, is this crushing an activity that did not previously occur on site? Does it increase dust? Does it increase noise? And if yes then we believe that there is an adverse affect to day use users, campground users, trail users, and state scenic waterway users. And although Mr. Blikstad mentioned that the term processing might include crushing, as far as I know the activity did not occur previously so to us it is a new activity and would be considered a change of use as far as the state scenic waterway is concerned and we would require a review on that as well as change of use if there were any construction planned. That's all I have unless you have any questions. Well I would do one other small comment. Briggs: Okay. So it would be viewed as a change of use under the Scenic Highway or Scenic River and that would be a State Parks review process. Parkins: Yes. Correct. And I believe that I submitted my notes from the last time I was here, but I would like to, if I can leave a copy of that here and the reason that I do that is because it has contact information for both myself and Leatha Crawford, the Program Coordinator who would be the one to conduct the scenic waterway review. Briggs: Okay, Parkins: I don't know that that needs to be entered as evidence or whatnot, but I will just leave it here. Oh so my last comment is also the mining activity may or may not be visible from park property. I would say off-hand for most of the park users would not be able to see any of the mining activity. So our biggest concern is really the increase in the dust and the noise that, excuse me, would be visible and noticeable. Briggs: Okay. Did you want to give me that. Any other agencies here that want to get their words in now. Okay. Moving to folks who aren't necessarily in favor or in opposition you just want to know what the heck's going on. Okay. Turning to folks who are in opposition. Mr. Dewey. Dewey: For the record Paul Dewey, attorney for Eric and Ronna Hoffman. I want to begin my comments actually by jumping to the state parks issue. Then I'll go back to my prepared comments. The ESEE does in fact emphasize the concern for the State Park for obvious reasons and it does state contrary to both the staff and the applicant that the site is visible from the developed portions of the park and that doesn't necessarily mean where they're operating right now, but the area they wish to mine is and in fact I was at one of the campgrounds near the amphitheater and could see the ridge and it is of particular concern. I don't think people realize the impact, I mean people are quite aware of the impact right now with the mine. But what is • happening now will pale in comparison to the areas they are planning as 78 they cut into that slope and that plateau up above. And when you go out to the site as I assume ou will ou can see d i f t I hi k h , y , y , an n ac t n t ere was a reference tonight to cutting, to the applicant wanting to reserve the right to cut down more trees and vegetation as it cuts into that slope. That's a very prominent slope easily seen from the park. The amount of dust, the scarring, as well as the noise of the equipment as that equipment brings down that material is going to be dramatic. So there really has been no good analysis. I don't think that site plan is frankly adequate to show exactly where the plan to be mining. In their February 19 materials they say something to the effect that it is not possible to show their proposed slots because it really depends on the ground. They know the ground. They should be able to show where exactly they are mining now and where exactly they're going to be mining in the future because otherwise it is going to be impossible to people to really see the true affects and particularly the affects on the State Park. And I also want to point out to their program to beat the Goal called for special concern for noise and visual impacts with particular attention paid to the Tumalo State Park as well as the eastern and northeastern boundaries of the mine. One initial concern I have, it feels like a dump truck has just backed up and dumped on us an entire new set of material. This is about the third time this has happened, so we are going to be requesting additional time to respond. But I must say it's been quite frustrating. Pretty unique in my experience to have so many changes from application to modified application to modified application to this hearing in • an application of this kind. Mr. Standlee I believe referred to the fact that he didn't think that his draft report was going to be submitted, that it was drafted, that is was stamped draft. That's what the applicant submitted for his noise analysis, as part of the record. We gave it to our experts for them to analyze. It's not the fault of our experts that they gave us a draft report. The night of the first hearing we were sandbagged, frankly, with an entirely new proposal. They knew that they were going to come in with a new proposal weeks before. And all this starts really almost a year ago when my clients filed a code compliance complaint because they were operating a crusher, handling this material that was being brought in from excavation sites around Bend, and then the applicant filed this application to cure, to do a voluntary compliance with the code enforcement complaint, and it involved rather dramatic proposals for drilling, blasting, crushing, activities that have never occurred on this site and the State Parks person is correct. Crushing has never occurred on this site. We responded, we called in experts to respond to this rather radical proposal only to find that the applicant then changed the application. All this excavated rock that it was crushing. The whole purpose, the whole basis for the code complaint, all of the activity that they were doing at the time, suddenly was of no interest to them any longer. Actually they then considered it to be, no we're bringing in the rock for reclamation. That's what we're intending this to be even though no reclamation plan mentioned bringing in all this rock to be used • for that. So it was a 180° shift for us. And at that hearing they said we 79 • don't need a rock crusher any longer we're just going to be crushing pumice. And then on March 20 they submitted another modified application of sorts saying well actually we do need a rock crusher on site. And we need a rock crusher to deal with those incidental aggregate materials that we're going to be coming across in the pumice. And we are left with the feeling well is, so, how are we ever going to know what is actually being crushed on this site. Is it going to be this incidental aggregate or is it going to be the excavation rock that they were bringing in, in the first place for that purpose. There is no way anyone is ever going to be able to tell whether or not they are crushing their excavation rock or crushing their incidental aggregate. And you have to wonder why on earth would they need to crush everything on the site. If it's just incidental aggregate why don't they add that to the reclamation pile. Why do they have to use excavation rock for the, for reclamation but they can't use what's on site. And relevant to that it used to be, in the reclamation plans and what was submitted by Cascade Pumice, that the top soil and the overburden was what was going to be used for reclamation. That was providing the soil for the grasses and the other vegetation that was to be part of the reclamation and now we're getting proposals to mine the top soil and the overburden. And because they haven't clearly identified on the site plan where the reclaimed areas are, existing reclaimed areas, or where they plan to reclaim, we don't know whether they're mining the top soil and the overburden of the reclaimed portions of the property or how they're going to substitute those soils. Are they going to be bringing, mining these soils and bringing in other soils. It leaves us with, as I say, with a feeling of a shell game of sorts. Something is presented, we respond, they shift and say oh no we're not intending to do that after all, we're going to do something else. And it's been very frustrating to respond to that, but let me go on and try to respond to what has lately been presented. On the issue of crushing, the Code DCC 18.52.140a actually requires that a site be designated, as in designated, and it's site specific ESEE for crushing. This one does not do so. The applicant looked to the Code definition of processing, which does include crushing, and the staff states that the plan says look to the Oregon Administrative Rule definitions for the purpose of plan policies, not for the purpose of the ESEE, but for the purpose of the plan policies. Both of their approaches ignore the fundamental PGE vs. BOLI method of analysis which is you look at the document before you, you look at the text and context of the language of the document. Neither the applicant or the staff have really done that. And if you do look at the language, not only the requirement that it be designated specifically for crushing, but the language of the ESEE, the next page, refers to a variety of activities such as processing, batching, crushing, mixing. It uses crushing and processing as if they are separate terms. There would be no reason to use, to mention crushing if it was included in the term processing. So we believe that a PGE vs. BOLI analysis shows that no crushing was intended here and actually no crushing • has gone on here. Basically what the applicant needs to do, and it feels like 80 • a post-acknowledgement plan amendment to amend the ESEE, but it's in the guise of a site plan and a conditional use permit, they are asking for uses and activities that are not discussed in the ESEE. And where the ESEE noted how sensitive this site was, not only for the Tumalo State Park but other uses in the area, we believe it would be a violation of the ESEE to go beyond what was contemplated in that document, and particularly with regard to these new affects of crushing and going up into that slope even further and selling the entirely new products that were obviously not contemplated in the ESEE. We would also hope that a new ESEE analysis would look at the loss of the reclamation materials, the soil, and the overburden. Would look at additional dust that would be generated by these new processes and additional traffic. Regarding the site plan, I mentioned earlier a few elements that are missing from it that would really help in an analysis of it and that is where exactly is the current slot on this map, exactly where is it defined. Where is the equipment being kept. I think the staff report noted that the equipment was not where it should have been. Again where the property has been reclaimed, where it is being reclaimed, what part of the hillside is going to be brought down, etc. The staff and the applicant stated that they did not see, again, any mining activity from the park. I was out there one windy day fairly recently. The amount of dust in the air could easily be seen from the park and I believe people will bring photos showing the extent of the dust storms, and I use that term literally, that come off this property. Briggs: So you're point is you may not be able to see actual equipment doing the mining, but you can certainly see the dust coming up. Dewey: Huge amounts of dust. And that is a visual bite as well as a health concern. We agree with the staff report that all vegetation should be retained. And there, Mr. White mentioned that it is up to DOGAMI as to what happens in reclamation. And maybe that's the case with regard to final reclamation, but the County has very clearly stated in the ESEE that there is to be ongoing, incremental reclamation that only up to five acres may be disturbed at any one time and we believe that this operator is out of compliance with that rule, that far more than five acres is disturbed and that they are not performing ongoing, incremental reclamation. That's a County requirement not a DOGAMI requirement. I have more to say, a lot more to say, but I will do that in writing and let other people speak. I would like to invite you. I don't know whether or not you're going to be doing a site visit, I assume you are, and if you do so the Hoffman's would like you to, would like to invite you to also go onto their property for a perspective or a view of the mine land and the entrance is right next to the mining entrance. We can give you the address and a suggested route. And I would also recommend, I know you're in Portland, if you can pick a windy day it would be very eye- opening. • 81 • Briggs: Aren't there a lot of them in the spring? Dewey: No, it's a good time to see it. Briggs: Yeah. Hardy: For the record my name is Pam Hardy and I'm here representing the Tumalo Rim Water Improvement District and the Tumalo Rim Property Owner's Association. And if you look on a map of, you'll see the larger maps in the area, you can see on the smaller one here, the color one, this is a subdivision that is just to the north of the mine. So many of the points that Mr. Dewey made so deeply resonate with the homeowners in this district. The problem has been that for so many years these homeowners have counted on the fact that this mine was governed by an ESEE analysis that only anticipated the removal of a certain amount of pumice. People have counted on the fact that over and over again there have been representations made that the removal of the entire, the entire resource was only going to take approximately eight years, and I know many people who were actually at some of those hearings previously will be testifying to that tonight. But that really gets to the point of what I want to say about the ESEE analysis. Goal 5 essentially recognizes that some uses of land are going to have inherent conflicts and mining, surface mining is simply one of those. And so instead of Goal 5 my, or instead of Goal 5 zone designations, meaning that an • owner who purchases a piece of property in a Goal 5 zone designation can really expect to be able to do anything and everything that is allowed under that zone. Goal 5 specifically says that you have to resource the inven, or you have to inventory the resource and then you have to balance the value of hat resource against the value of the uses that it's inherently going to conflict with and then write up an ESEE analysis looking at the environmental, social,... Briggs: Economic and... Hardy: (Laughing) Briggs: We've been using that acronym for too many years. Hardy: For too many years indeed. But you have to look at the value of the resource then. You have to look at the value of the conflicting uses. Briggs: So is your point then essentially that the ESEE analysis is a site-by-site conditional use permit process that does that balancing, evaluates the impacts, makes the decision to allow, not allow, or to conditionally allow the use and so the conditions are spelled out in the ESEE document? 82 • Hardy: It's very similar to that except that it's written into the Comprehensive Plan because each of those analyses, each of those sites are actually inventoried in the Comprehensive Plan and then the ESEE analysis essentially isn't a subset of that comprehensive plan, so it's essentially Code that goes to a site specific place. Now the significance of that in relation to this particular place is the fact that this particular site specific analysis only contemplated the removal of 750, 000 cubic yards of pumice and 10,000 cubic yards of aggregate. That's not very much. And when it only contemplates that limited amount of removal that inherently creates either a time limited event or an intensity limited event. And the surrounding property owners have a right to rely on the expectation that the adjacent surface mine, or the local surface mine is either going to be limited in time or intensity. The applicant says that there is no time limit and I'd like to refer you to an assumption on page ten of the ESEE. Although no time limit specifically was listed on the flow sheet in his chart in the program to, the program at the end of the ESEE, time was, and the fact that this was inherently considered to be a short duration of that, is actually considered as such an underlying assumption of the ESEE that's not even put in there. And the point that I'd like to, I'd like to refer you to is on page ten in the third paragraph down, the very last sentence. Furthermore surface mining is a transitional use and after reclamation the land surface would then become available for other uses. When you combine this basic assumption with the fact that this ESEE analysis on page two very clearly only says that it's analyzing the impacts of the removal of 750,000 cubic yards of pumice and 10,000 cubic yards of sand and gravel it becomes clear that one of the basic assumptions that was in the Commissioner's minds when they approved this ESEE and probably all of the ESEEs like it was that this was going to be limited in quantity and quality and that ultimately this use was going to come to an end. And the proposal that's been made here tonight, according to the geotechnical analysis regarding what kind of resource is actually available, suggest that millions of cubic yards of material are going to be removed from this site. This is an order of magnitude difference than anything that the neighbors had ever been contemplating. Further this ESEE analysis as it says clearly on page two contemplates pumice. And the very next paragraph on page two after describing the 750 and the 10,000 cubic yards it says sand and gravel resource has largely been mined out. Therefore this analysis will focus on the pumice resource. Hence there is a huge difference between pumice and tuff and there is a huge difference between pumice and some of the other things that the applicant is proposing to crush on site. Those other things will require substantially larger machinery and substantially louder noises. The ESEE analysis did not include contemplation of crushing any other minerals or even processing any other minerals besides pumice. Further a new ESEE analysis, if the applicant really is intent on going beyond this ESEE analysis, and actually crushing more than 750 cubic yards of pumice, and I would actually, let me back up for just a moment, I would • actually propose that it is entirely likely that this ESEE analysis has been 83 entirely exhausted, that the entire 750 cubic yards of pumice has actually been removed from the site. Briggs: I was going to ask that question. Do you have any estimation of how much has been removed? Hardy: I would like to know exactly the answer to that. We have, the only way that we can come up with an estimation that I'm aware of at this point is to look at the number of trucks that have actually left the site and the approximate loads that were in them. Turns out that I called DOGAMI to ask this question and DOGAMI told me that although they do have annual reports of how much material has been removed from the site that that's the one piece of information in the reports that they are not allowed to release to the public. I would suggest that perhaps the Planning Department could call DOGAMI and ask for a confidential quote or maybe even just a statement as to whether or not it's above or below 750 cubic yards. Because they won't tell me. But moving on, it's possible that the ESEE analysis has been entirely exhausted, but what we'd like to suggest here is that the neighbors in this area if these applicants are really intent on doing more at this mine site than is actually allowed for in this particular ESEE analysis that what they need to do is analyze the impacts of additional things at this mine site. For example they need to analyze the impacts of all of the additional traffic that will be created by mining the tuff. They will need to analyze the • impacts of the sound of the processing, how much noise that will make, how much additional dust that will generate, so on and so forth. They need to analyze the impacts in light of current conditions. It turns out that there are three critical things that have come to light since this ESEE analysis was done that really make a new ESEE analysis absolutely essential if this applicant is going to go on beyond the 750,000 cubic yards that were originally allowed and analyzed. The first of course is just that Deschutes County has changed. Our economy, which maybe used to be based on resource extraction and mining, is simply no longer based on that. The current economy of Deschutes County is much more substantially based on recreation and the scenic beauty of the area. That's just general knowledge. What's now general knowledge, but what has a huge impact on the analysis, any analysis that might be done on the adding to this original ESEE analysis, are two critical things. The first of course, which we've already discussed frequently to night, is the fact that this mine sits directly on top of the source water area for the Tumalo Water Improvement District. Tumalo Rim Water Improvement District. DEQ has put together a survey showing that the water from this mine is going to percolate down into this, into the highly permeable soils right underneath it and within two years be at the ground, be at the wells serving the Tumalo Rim area. The second critical thing that has come to light is the fact that pumice dust, and this hasn't been discussed very much tonight, is largely composed of Silica and Silica, it has • come to light only recently, has been shown to well first cause Silicosis, but 84 • second to be potentially seriously carcinogenic. It's currently, there's currently a large debate going on in the scientific community as to whether or not to call it a known carcinogen or whether just a highly suspected carcinogen. The International Association for the Research on cancer, which is one of the main scientific standard making bodies under the World Health Organization that designates these things, has determined that it is a known carcinogen. And all this citation is in both my documentation and a more specific description of the problem will be given in just a few moments by Helen Whistler. But pumice dust is, at the very least even if it's not necessarily a known carcinogen, pumice dust is at the very least very hazardous to health. And the State of Oregon actually right now is in the process of a rule-making procedure considering whether or not to reduce by half the permissible exposure levels of pumice dust. Briggs: Is that DEQ? Hardy: Um, no it's actually OSHA. Briggs: Okay. Hardy: And I have the, I have the documentation on that. It's associated with my letter than I'm going to be submitting before I walk away. So three new things have come up that were not information that was simply not available • at the time that the original ESEE analysis was done. And I understand that new information of this sort may not necessarily be the thing that says they have to re-inventory, but what does say that they have to redo this is the fact that the Board of Commissioners at the time of this ESEE analysis was written only considered the impacts of the removal of 750,000 cubic yards of pumice. That's all. It did not consider what the impacts would be of having a mine in a residential area that would remove several million cubic yards of material. That's the most important point. And one other, I'd like to address a few other little small points before I go ahead and turn this over to everybody else. First of all whether, the question has arisen whether or not ground water needs to be considered. And even though the word ground water is not actually in the Deschutes County Code, the Deschutes County Code does require that DEQ, all DEQ standards are met for all surface water management. Whereas here surface water management means that all of the water will be contained on site. That necessarily means that the water at some point is going to have to settle and that if that water doesn't leave the site it's going to be settling down into the ground water. The applicant has stated in a few different places that all of the water will evaporate. First of all the applicant hasn't shown any actual data on which they may come to that conclusion. They haven't discussed what the evaporation rates are in Deschutes County in comparison to the rainfall and they haven't considered the evaporation rates in comparison to the amount of water it's going to take • for the washer, the crusher, or the suppression dust. And all of these things 85 • need to be considered before the applicant can come to the conclusion that all of the water on site is simply going to evaporate. Further, that evaporation doesn't account for times when soils are saturated and when there're storm events or substantial of snow sitting on the site that would allow the water to sink in. As it stands the uncontroverted evidence about the geology in the area is that it's highly permeable soils and that the ground water flows directly from this mine to the Tumalo Water District's wells. Because the Deschutes County Code specifically requires consideration of surface water, and in this case the surface water runs to ground water, ground water has to be considered in this case. Further the State of Oregon has very clear, very strong standards on the pollution of ground water. Ground water may not be polluted below existing ambient levels. Especially not by new uses. A couple of other very small points, the applicant has tried to argue that Tumalo tuff is the same as pumice. An error in another application does not make it true for this application. We'll have at least one geologist testifying later that at least in the geology world and in the vast majority of areas Tumalo tuff is very clearly a distinct kind of rock and has a very practical difference and that is that it's substantially harder than pumice and as a result any processing would have a very different impact on the local area. It doesn't matter that it's a part of the same eruptive event. It's different rock. Clean fill brought to the site, I wanted to point out that the ESEE analysis does not consider the impact of bringing fill into the site. And when it was only 750,000 cubic yards that • were going to be removed there was only a limited about of fill that might even potentially be needed to fill the hole that would be created by that. I would also just like to mention ground water best management practices and spills, we really appreciate that the applicant has said that they would be willing to create a spill response plan and use best management practices. The only thing that we would ask in addition to just having a plan available is having some kind of a verifiable way to show that the staff is actually trained in a spill response plan and actually knows how to use it so that it's not just a dusty document sitting on a shelf. And the scale house. If the scale house is ever, is actually approved under any of these applications it should be limited to trucks removing material from the mine only. It should not be a scale house that any commercial truck from anywhere can come in and be weighed on. And finally I would just like to say that based on the foregoing statements, particularly regarding the essential exhaustion of the original ESEE analysis, we request denial of this application, but if it's approved we request public verifiable on-going monitoring of the water and the air quality and the noise standards with specific actions to be taken if monitoring shows that the mine has fallen out of compliance with these standards. And unless you have any questions? Briggs: No. You have a written submittal? • Hardy: I do. 86 • Briggs: Okay. Whistler: I'll let you make your notes there before I. Briggs: Thank you. Then I'll let, well I'll let Pam sign in. Okay. Whistler: For the record I'm David Whistler. W-h-i-s-t-l-e-r. I live at 64194 Tumalo Rim Drive. That's Bend 97701. I'm here representing two groups tonight. I'm representing the Tumalo Rim Water Improvement District, and that's 53 properties and the people who live on those properties, and in a separate little comment I'll make after the talk about water I represent 30 neighbors, most of whom are on the Tumalo Rim Drive, but some who are even outside of that area, on a concern about the lack of reclamation and the fact that leads to an awful lot of dust and other things so. I will first address water. I did submit to you at the last hearing a letter on water. I will say that some of the scaling back of the plans that Latham has now said they're going to scale back would satisfy some of the concerns we expressed, but no where near all of them and they still have not really responded to some of our principle concerns that we expressed in those letters. I am led to believe from what I heard tonight maybe they're going to. Maybe something's coming in on the record, something's been given to you, but in the absence of that I had. to respond to what's already in the record. As Mr. Dewey has pointed out this • record seems to bounce around a bit so it's difficult. We expressed, as a Water District, concerns about their well and how their well is protected. The well is probably the single worst portal to the ground water in terms of some kind of contamination. We are required as a water district to have very stringent well protection on our wells. Whether or not they have it, I asked that question. I'm asking it again tonight. Do they have well protection. I think they should. It would only be prudent to do so. We'll all concerned, they tonight simply tell us again, and I already knew that, that they have a water right to a certain amount of water. To tell us they have a right doesn't solve the problem. How much are they actually using it and is it being monitored and are they reporting their use. They're not to exceed that amount of water and they are to have metering devices on their wells to report that amount of water. I don't know if they do. They have not responded to that. With regard to the potential pollution then beyond just the well, their geology group, Siemens and Associates, did write a letter, and it was in Exhibit, I think 7, to the report. They did not reference it. Mr. White did not reference it in his report, but it's there so I responded to it and it's in my written thing here. I do respond to that. They somewhat belittle the whole fact that the State of Oregon has a water protection program and that they have a department that does that, Department of Human Services, and has a plan. It sounds like even Mr. Blikstad, Paul here, is aware that possibly they're going to be writing another letter. They wrote one bel.ore. I submitted it last time. So, spelling out what they think should be done. 87 • I'm also concerned that the County of Deschutes has a water program and a person and people in that water program who are available to make best judgements on how to protect water resources and what might be the best things to do or not do in the case of this mine. And to my knowledge that department has not been contacted by the County, by any people here. And they've not been asked for an opinion and I believe if they were contacted they are more than prepared to provide some recommendations. The individual that I've been in contact with has actually been in contact with Dennis Nelson who was the one from the State that provided information and they had a meeting together and I was led to believe they were going to produce a report from that meeting and I haven't seen it. Have you heard anything more about that Paul? Okay. I would ask that the record be held open for that report. So. Briggs: Do you anticipate that it's going to be produced? Whistler: I anticipate that it is. I can't make it happen. I'm a citizen. They are government employees so I can't tell them what to do. If it isn't, I mean, I've covered what I can in here. So that the water things I will not, but I would say until these questions are answered I am not satisfied to say that I think we have everything and it's been appropriately addressed that addresses the concerns. So that was that. Then the 30 neighbors that I represent, we actually did file an enforcement complaint about the lack of reclamation and the fact that it was leading to dust, with the County of Deschutes. We have heard nothing from the County, what, if anything they have done, except some anecdotal things that we just heard again here tonight that people have been out looking and so forth. But contrary to what Mr. White said and I think Mr. Dewey said it very well too, is my reading of the ESEE report, the Hearing Officer's finding, everything that preceded this with Cascade Pumice, they all agreed and it was signed off by everybody, including the attorney representing Cascade Pumice, that disturbed areas would never exceed five acres, and I don't, let's not play games about what's a road and what's an access road, and what's a, what's a pile of dirt, and so forth, disturb, and I think any normal person can recognize what disturbed is, would not exceed five acres and inclemental reclamation would take place before you, if you do five acres then before you start the next five acres you start doing reclamation. We've heard a lot about the fact oh that's DOGAMI's problem and it's only DOGAMI that does this, well as Mr. Dewey pointed out DOGAMI only deals with reclamation at the end of a project and that end is, in fact, in my discussions with DOGAMI, is defined by the owner of the property. When they say they're through mining then DOGAMI comes out and say yes you have reclaimed, no you have not. It was the County that set, and the ESEE, and Hearing Officer's finding that set the five acre and the inclemental reclamation. Therefore we 30 neighbors ask that before any more permits are given to Latham to do any more expanding of this mine, that this 88 • previous condition be met. There's at least 20 to 25, possibly 30 acres, of disturbed land down there. I will give them five of that to work in. I'll give them the roads if they want to. There's an awful lot of ground that has not been reclaimed in any way and it's a blight, it's an eyesore. And it's, it was until just two days ago, three days ago, a very significant source of dust. With'this hydro mulch that they just put on there it seems to have done a pretty good job on that and it's, it's interesting to me that it took a lot of banging of heads to finally get a little something done on that, so. So I will not say any more `cause I know there are other people who want to speak tonight. I do have, again, materials for both of you. Briggs: Good. Thank you. So this is my own, my very own. Whistler: That's your very, very own. Briggs: Okay. Adams: David Adams. I live at 64222 Tumalo Rim Drive. It's Bend 97701. I'm a member of the Tumalo Rim Property Owner's Association and we get our drinking water from the Tumalo Rim Water Improvement District. I have written comments, which include an appendix consisting of photos and I'd like to have you look at the photos while I, may I approach. 0 Briggs: Oh please. Adams: I've always wanted to say that. Briggs: We're not that formal here. Adams: I watch too many lawyer shows on television. In my written comments I have two concerns, some of which have been talked about tonight at some length. I'll go over the first one just very briefly. I'm not going to read from what I presented, but just refer to it. The first one was the open ended operation, or what appears to start looking like an open ended operation. And I believe that's counter to the site 303 ESEE where it states and has been quoted, and I have a more specific reference to it, that the surface mining is a transitional use and available, should be available for other uses after reclamation. In the staff report on page 23, item 11, with reference to the site reclamation plan, it basically says that the plan must be approved by DOGAMI and implemented in order to maintain the State's approval of the mining operation. So those are my concerns with regard to the open ended nature of the operation. So to get to my second concern here, which involves pictures. I know you'll be reading a lot of material and it might be restful to look at pictures every now and then so feel free to look at them as often as you like. • 89 • Briggs: I love pictures and maps. Adams: Let me way at the outset that Mr., or Dr. Whistler made reference to it, that the dust conditions have improved since they put down the hydro seal, or hydro mulch, and I do acknowledge that. One might ask well then why are you going to show all these dust pictures, and I'll get to that later, just to keep everybody's interest. Briggs: I'm looking behind Tab F, is that... Adams: Yea, Tab, I'm sorry, Tab F, and there's a cover sheet that explains something about the photographs and I'll be essentially going through that before we start looking at the individual photos. And we're not going to look at all of them. There are a few representative ones that I'll be talking about. But my concern was that their dust abatement program was not being effective and this was after several days over a period of time of observing and finally starting to photograph the dust conditions. It turns out, and you can probably agree that anytime you start complaining about dust, dust doesn't hang around very long. If you don't happen to have a camera with you, you probably can't capture the event. Briggs: And if you have a camera like mine dust just means it doesn't work so. Adams: Right. And if you call the DEQ office and say get down here there's a lot of dust, by the time they get there it might not be there, so it turns out that as a result of these hearings and gathering evidence on various issues, a lot of us have just started making sure we have a camera with us when we travel around, walking the dog, or driving through the neighborhood, or something. At any rate, I think we know that the ESEE and the SP-95-10 requires the operator to meet applicable DEQ standards. However the applicant's revised, I think that's the February 19th burden of proof, states that the only DEQ air quality standard applicable to the mining operation is OAR 340-208-0210(2), which I'm not a lawyer, in layman's terms I would say states that if you're going to store something or make a pile of something you need to take reasonable precautions that particles aren't released into the atmosphere. Okay, if we take a look at these photos now they were taken on various days and from various locations around the Johnson Road mine site. Some of those locations were the Tumalo Rim Water Improvement District well site, Tumalo State Park trail above the campground amphitheater, a, from the home of one of our Association members who lives on Ridgewood Drive in the Tumalo Rim subdivision, from the Highway 20 lookout point above the Deschutes River and Tumalo State Park, and also from the Hoffman property with permission, which is adjacent to the mine site. We took these photos on various days, which included a Monday, a Friday, a Sunday, another Friday, a Sunday, and a Thursday, so we got photos when the mine was in operation as well as on 90 weekends when there was no apparent mine activity. Also by being able to get onto the Hoffman property on days showing when there is a lot of dust, we were able to go onto the Hoffman property and note that dust abatement was in progress. They had, in one case, two water trucks working, but it appeared that they just weren't able to keep up with the dust. The, I think Mr. White mentioned their program to determine when they needed to shut down operations or start employing their dust abatement procedures and having to do with getting a reading on wind speed and humidity. If one were cynical, one could envision a scenario where an employee goes over to get a reading and when another employee asks him what did it say he said I couldn't tell there was too much dust blowing. Quite, you know, rather than strictly rely on those readings, sometimes just observation will do the job. And it, I don't know, they may take a look and just see what the situation is and start their watering, you know, based on what they see. At any rate, let me get to these photos. The first I think I I here are just representative of the smaller photos that occur later on. The smaller photos capture intervals on these various days when the dust was kicking up and in several case, one case, on one day, I think it was April 4th you could just really, from our well site, the Tumalo Rim well site, you could track the dust as it blew up out of the mine site and traveled across and down, across the Hoffman property and the Todd property, and then into the State Park area. So that's what I was doing and that's why there are so many pictures because a lot of these were taken as the dust traveled across the land. But starting with the large pictures, on page, the one labeled page one in the upper corner, which if you turn it horizontally would be the lower right corner, that was taken from the Hoffman property and simply shows how the dust can kick up off the piles of material there in that particular case. That's not a lot. But sometimes, depending on the wind conditions, this is cumulative. On page two this is an example of the, what we have in the larger collection of photos where we show what the camera viewpoints were and in this particular case it points out the, where the camera was stationed when we took the pictures on April 4th when we got the really bad dust conditions going straight down and across the Hoffman and Todd properties and into the park. And page three and four are pictures taken from that series of shots that show the dust rolling down the hill and across the end there of the, where you see the horse standing under the tree, that's the Hoffinan property and just to the, above that and to the left a little bit is the start of the Todd property. Page four is a similar shot or the next shot in the sequence. Page five is, shows the camera position in Tumalo State Park. This photo was taken from Tumalo State Park. It's at the, on a trail, State Park trail above the campground amphitheater. The amphitheater sits in between Loop B and Loop C and it is elevated, so if you're down below you probably wouldn't see this. But it is, it appeared to be a well-used trail when we were there. Page seven is the camera viewpoint for the next photograph. This was taken by one of our Association members who lives on Ridgewood Drive looking straight south • towards the mine and you can see that that is a significant dust cloud. This 91 • was taken on Easter Sunday, which I believe was the 23`d of March, at about 4:00 p.m. And given the geometry here, if you look to the left over that nearby hill, if you were to, you know, put this on a Google map and draw a line from the end of Ridgewood Drive, you would see that that cloud easily is traveling down into the Tumalo State Park area. The camera, on page nine, it shows the, where the camera was for the pictures that were taken from the pullout on Highway 20 above the Deschutes River and Tumalo State Park. And here again this was a windy day. But you, there's a series of photos in the smaller photographs that, these are just a couple of them, that show the dust blowing up out of the pit and then one case looks like it's traveling to the southeast up the hill. And there are two photos taken there. So these photos demonstrate that at least up until recently there was a dust problem, what I would consider to be a dust problem and other people have complained about the dust. Now given that they've taken another step and significantly reduced the dust, for the time being at least, why do we want to bring these up. There are two elements here. One is that in their burden of proof the applicant has stated that the only applicable DEQ requirement is this 34208, the one I quoted before? Briggs: Um hm. Yeah. Adams: You know, which says try not to let the stuff escape into the air and get, and here's a recommended list of procedures to follow. The second element here is that in their, one of their documents, they state that they thought that their dust abatement program was working because they hadn't received any complaints. My comment would be that there, the DEQ requirement that they claim they're, is the only applicable requirement, is not contingent on complaints. It doesn't say you'll do this if and only if complaints are file. They have to do this regardless. And that leads me to a couple of questions then. In looking up these DEQ requirements on line I probably learned just enough to be dangerous so I did come across from the DEQ Division 208 Visible Emissions and Nuisance Requirements, and that's contained in the appendix of my letter, a different appendix, there are two requirements, 340- 208-0110(1) and (2). Number 1 has a requirement depending, that states that, it actually provides a measure by which a, the visible, it's under the title of visible air contaminant limitations. And this applies to existing sources outside special control areas and I'll just quickly read it. "No person may emit or allow to be emitted any air contaminant into the atmosphere from any existing air contaminant source located outside the special control area for a period or periods aggregating more than three minutes in any one hour which is equal to or greater than 40% opacity." Opacity is the degree to which light is blocked. A clear window pain would have 0% opacity. A brick wall would have 100% opacity. Item two under that requirement states new sources in all areas and existing sources within special control areas, essentially repeats, no person may emit or allow, etc., 0 etc. for periods aggregating more than three minutes in any one hour, which 92 is equal to or greater than 20% opacity. So that's a more stringent requirement. So my question is why is not either 340-208-110(1) or OAR 340-208-110(2), why are they not applicable to site 303 as appropriate, depending on whether it's an existing source or a new source. It would seem to me that, and I again am not a lawyer, so I don't know if there's something in that that excludes these, it doesn't appear to me that these only apply to point sources such as smoke stacks. But unless there's some legal reason why these requirements can't be applied I would request that the appropriate requirement be designated as an applicable DEQ standards in your decision, if this is application is approved, and I've incorporated in my written testimony and other appendix E1, which is a 2001 case before the Hearings Officer panel for the Oregon DEQ, which demonstrates the use of the opacity requirement. Now this was not a surface mine case. It was a point source case, however it does show how the opacity requirement is used and explains how personnel in DEQ are trained, tested, and certified to, by site, estimate the opacity of a cloud say, or smoke, and so forth. And in this particular case the person who observed this case and determined that it was a violation was one of those people who had been trained, tested, and certified to be able to estimate the opacity, you know, based on his observation within a certain percentage and his testimony was important in the resolution of this case. So that's my basic question, is can these DEQ requirements be applied and is the only reason that the single DEQ requirement, which the applicant feels that they're, they have to abide by, is that because, you know, that was the only one that was called out in the 95- 10 decision, or, or is there some other legal reason why these other two couldn't be applied. So, and I also I want to point out that as I mentioned we do acknowledge that the dust situation has gotten better since they have applied this material to the ground and, however getting back to their statement that they thought their plan was working in the previous case because they had not received any complaints, I'm concerned that their application of the best management practices and compliance with the standards may be complaint driven and that they'll do, you know, what they feel they have to do, but if it, if it gets, if those procedures don't' seem to cut it, then it might, my concern is it might take a complaint before they would add procedures which would then improve the situation. Briggs: So essentially you want compliance regardless of whether or not there's complaints. Adams: Oh yes, yeah. Gee you could have saved me like 20 minutes here in front of the mic. Okay. Well I can't talk. Briggs: I want you to have your day in here. Adams: Thank you. Well I can't top that so I think I'll quit. • 93 Briggs: Okay. Adams: Thank You. Briggs: Thank you. Anyone else? Oh yeah. Pick one, and what you can also can do is sort of get lined up at the table to one person can be signing in while the next, while the person in front of you is talking. Whistler: For the record my name is Helen Whistler. I live at 64194 Tumalo Rim Drive. We've lived there for six years. We've owned property on Tumalo Rim for 14. Briggs: Any relation to David? Whistler: Yes I am related to David for not quite 45 years now. I have kind of modified what I had planned to say. We've gone along because in many cases I don't feel you need to hear the same thing many times. I actually have numerous areas of concern regarding the current request, which is a modification of the modification of the modification and I must say not being used to these types of hearings I finally sat down and drafter, okay this is what they asked for the first one, this is what they took away the second one, this is what they added the third one, and which exhibits did they provide, and now of course we have... i Briggs: A few more. Whistler: More. In any case I re-realized that site 303 is currently zoned surface mining, but as I have said in the past we as taxpayers and neighbors expect the laws in place that do protect our health on all levels are enforced and that our property values are protected. One of my key things is with that observance and enforcement, and that is the key word, a required mitigation the law benefits only those with the imminent power base. And one of the things of the notes that I've made in my margin here was one of the common statements that Mr. White made was it's feasible, it's feasible, it's feasible. Doesn't mean it's being done and I think that is a real problem. As you've seen, current control of dust up until very recently is abysmal. The dust itself is a contaminant as stated in OSHA and MISHA laws. Lack of dust control has been ongoing weekdays, weeknights, holidays. They are required to mitigate dust control whether or not they are in operation during all of those times. And as Dave so eloquently put it just because there isn't a complaint doesn't mean the problem, that there isn't a problem. Dust is a problem and all this dust is created without a crusher, without a washer being on site. Dave provided some extremely good photographs. I'm just going to hold up a couple of the ones. The rest of mine are included in my testimony. (Inaudible) . This was taken at Easter morning from the home of one of our homeowners. That is not a forest fire. 94 Those are clouds of dust. This is a patch together series of photographs that h . s ows how this dust migrates down the canyon toward the State Park. This was a windy day. I'd like to also make the point that 20 miles an hour is quite a high wind speed and we have been there in the past with great amounts of dust kicked up at 10 miles an hour. This is a picture, also taken on the same day. It shows the dust crawling down, again the canyon, interfering with the livestock that are on the Hoffman property. And this one is the one that Dave mentioned that was taken from Highway 20, moderately windy. I would have said probably 10 to 12 miles an hour dust. And you can see how the dust flows right across the river into the State Park. But actually it's the type of dust that makes it more of a problem. OSHA has a slogan that is used to stamp out dust related diseases. It isn't just dust. And this dust is not just dust. I'm concerned about the continued mining for pumice, which during the pumice mining process produces pumice dust. Applicant's Exhibit E from, I think it was the first hearing. identifies the pumice and the tuff at this mine as ax avo day site. Rayo daN, site by definition by petrographic definition is composed of between 66 and 72% Silica. The dust coming from this mine has that same content. As Ms. Hardy mentioned in 1997 the International Association for Research on Cancer, a part of the U.N. World Health Organization, classified crystalline Silica dust as a group one human carcinogen. That's their highest rating. With this publication OSHA's standard, hazard communication standard, began to regulate the substance as a carcinogen. In fact any material containing 1/1 0th of 1% of crystalline Silica must label it as a carcinogen. The standard for exposure was set, in effect this exposure level has, I understand, recently been cut in half by OSHA and the State of Oregon is also contemplating the same. I won't continue with the facts and details from the reports because you're going to get to read them yourself. But I would like to note that the MSDS's for this material all identify it as a carcinogen and I'd also like to present a number of quotations that hit closer to home because they aren't done in scientific terms. Activities which generate large dust clouds, even in open air, can be hazardous. That's from the World Health Organization fact sheet. If dust clouds are seen in the air it is most certain that dust of potential size as 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, again from the World Health Organization. Public concern may be raised about potential health affects from brief exposure to airborne Silica or residence in locations where prevailing winds carry Silica particles from natural or industrial sites, from the American Thoracic Society. Residents near quarries and sand and gravel operations are potentially exposed to respirable crystalline Silica, U. S. Health Department, 11th Report on Carcinogens. 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 still affect populations who are not otherwise considered to be at risk, World Health Organization. California aggregate producers are now required to warn 95 • employees, consumers, and neighbors of potential health hazards linked to crystalline Silica, that's from the U.S. Geological Survey Minerals year book in 1999. I could go on with many additional quotes from a lot of different sources, but I think the primary point I want to make here is that, let me back up a minuted. Based on the amount of dust that we have seen generated off this mine site, I myself filed a complaint with the DEQ. That was when Latham Excavation did something about it. Homeowners filed a enforcement complaint about the amount of brush that was brought in both from outside and from on site that was piled and created what we felt was a fire hazard and furthermore they were doing, bringing in materials that were not permitted. We filed that complaint. We've not heard from it. But they immediately got permit, or got caused to do something about it. We filed a complaint form, or rather at the last hearing we spoke to the issue that none of their pumice trucks were covered. Three days later three quarters of them were. DEQ learned that they had, were required to have a permit to move the rock crusher on site for their test. They did not. It was brought to their attention. Suddenly they are, they have moved that rock crusher off site and got a, what do they, what is the call, they got their hands slapped with a letter. We know that they already had a fueling station on their site. Looks to us as though it were something less than 1,000 gallons, but right around 1,000 gallons, 800 to 1,000 I would say. We began inquiries with the fire department, with the State, could not find out whether or not this was a permitted activity and whether or not it was protected even if it were • something that was permitted. We ended up talking to CDD who forward our queries to Latham. The fuel tank disappeared. Was it permitted? We have no idea if it needed a permit. Was it protected? We have no idea if it were protected. When I spoke with DEQ they indicated that it wasn't a problem of course, unless there is a spill. Our point is it should protect it before there is a spill. And I think one of my concerns is that any requirements put on, if this is ever granted, which of course I don't believe this expansion should be, but if it is granted very specific requirements that are documented and certifiable that they be held to because the series of interactions that we have had with the complaint and doing the requirements as they should has not made them good neighbors. It's made them complaint driven. If someone finds out good, if they don't so what. My favorite word the last time was let's not ask for permission, let's ask for forgiveness afterwards, and there is no meat in anything that may happen afterwards. That's it. Briggs: Thank you. Triplet: I'm Tom Triplet. And I am an attorney. But if you think I know anything about land use then you also think that going to a podiatrist for a frontal lobotomy makes sense. Briggs: I know there's only a few sick ones of us that do. 96 • Triplet: I live at 64075 Tamoli Lane, which is directly north of the subject property. I grow orchard grass there and I hope sometime to actually make a profit doing so. Briggs: Ever the optimist. Triplet: I, I got involved, became concerned, initially when visiting the Hoffman's home and seeing this horrible scar in the earth, which the mining has caused. When you drive along their driveway you see this area that reminds you of the worst clear cuts, the worst of anything imaginable that is destroying the rural and somewhat beaucolic nature of the neighborhood. That was certainly my initial concern. And then as I saw the clouds of dust that caused me another concern and that is that I have a four-year-old grandson who has an asthmatic condition who visits our property at least two days of the week and I am concerned needless for him with his condition. It's not comforting to hear that after their caught with emissions they do something about it. It's the exposure in the first instance which is concern. I would if I were practicing law here today refer to the Miscoff laws. They violate the law and then they hurry to cover up what they've done by putting a band-aid on it. Not surgering it, a band-aid. We've now heard that they're planning to create a cloud Silica, which is a carcinogen, and you know several years ago Reynolds Metals had a similar experience in The Dalles where it's emissions caused half the cows in the county to die. And the Court of, the Supreme Court found that there was strict liability vested in Reynolds for the death of the animals and the illnesses that were caused to the people who lived near by. Quite frankly if I were hired as the attorney for Latham I would recommend that they get themselves a mine far from any place where humans and animals are close at hand. I think they create great risk to themselves, great risk to the community, great risk to the children, great risk to the animals that are there. We've heard about all the violations. Can we truly expect that if they are granted a permit that they will be violation free? I mean if you violate the law once, okay, if you violate it a second time shame on you. How many times do you violate the law when the pattern is so overwhelming that they ought not to be allowed to violate it again. You asked a question early on about the amount of pumice that has been mined. I can't give you the metes and bounds of it, but I can report that the prior owner advised that they were at the time of sale within one month of having mined all of the 750 million tons, or whatever it was that they were allowed to. So from that point of view it's spent, it's used. When I read through the staff's report, I was very surprised to see that on the one hand when the permit was approved there was clearly a contemplation that within eight years all mining would be finished and that at the same time remediation would take place. We are now 13 years past that, 13 years into this and this proposal has no end. It certainly exceeds my life expectancy from what I read. And I think if this is approved there should be a very short life 97 expectancy, like two or three years. Secondly I thoroughly agree that they • should be required to remediate as they proceed. If not, what assurance do we have as a community that it will ever occur? As far as I know there's on bonding requirement that they put up a bond for $50 million to remediate. And so what assurance do we have. Right now what we're hearing is we don't want to remediate until we're done, whenever that is. Perhaps Methuselah will see it in his time. Finally, I'd like to suggest that there be a remedy in the event that you allow some portion of this application and the remedy is that in the event they violate any of the conditions that the permit is automatically rescinded. We can't live in a society where we have to catch them. They need to get the message that a single violation and this permit is done, it's over, it's rescinded, and it will not be restored. I know that's a harsh condition, but we have listened time and time again to the mistakes and the violations of law that they have created. I did submit a letter on January 8. I don't know whether it's part of the record or not. I brought another copy in the event that it, like that four inches of material, disappeared. Briggs: Thank you. Davenport: Good evening. Briggs: Good evening. • Davenport: Thank you for the opportunity. On behalf of all of our neighbors and those here who are opposed I'm delighted to see you. My name is Craig Davenport. I'm the owner of the Triple E Ranch at 63895 Johnson Road, 97701. I'm again delighted for those of that here, for those I've never met, my apologies. This is the most significant threat to this property that we've owned in 17 years. Make no mistake about it. And that's my message tonight. My neighbors have described, I think in great detail, what we consider to be the threats. I'm reminded of something I learned a long time ago, and I wish I remember who the author was who told me, that you can't pick your neighbors. And I've live by it in real estate forever. I've also expected the County and those people that we elect to kind of help us in that regard. This property, interestingly enough, we've owned our property since 1991, this property first came to my attention when we found out, Tom Triplet and I, and not notified by the County, that Cascade Pumice was in negotiations with a potential purchaser. I wrote the County and told them that I consider myself to be a very qualified prospective purchaser, and if the County is going to become engaged in any way in the sale of this property I want to be notified. And I gave them our attorney's number and my name and number too. Subsequent to that we met with Mr. Dugan Pearsall, God rest his soul. We talked about this mine and I'm not one as a landowner to ever try to assert to someone that now that I'm here I want to make some • changes. That land held legitimate, as far as I know and I'm not an attorney, 98 I'm in the medical business, had a legitimate approved purpose, surface mining. We never, Tom Triplet and myself and the other neighbors that got engaged with Cascade Pumice, said we want that changed. No, what we really asked them was if you're going to do this it has a sunset and whether it's technically, as we've heard tonight and I guess was asserted previously, was ever stated in there I know what the intent was and the intent was this has a sunset on it. Period. The County, we ended up purchasing a portion of it that's on our side, the west side of Johnson Road. That allowed, and boy do I regret it now, Cascade Pumice access to Johnson Road. Yeah, I'm one of them, I'm one, now looking back on it. Now I sit here, we've had another, the second really threat came when the County, and I appreciate it rather than being taxed more, when the County has excess land they want to sell it. We had 160 acres that also bordered our property and is recorded in here our property is listed on the flow sheet in his chart at 200 acres, it's actually 300 acres, and I love central Oregon real estate, but I can tell you sandy, loamy soil has no value. We purchased it defensively because it too was landlocked, 160 acres, so our good neighbors from all the way around it decided you know rather than have it developed, or something else, we all bought it. Second time I've been involved with the County. Now tonight I sit here and we're considering and the County is basically saying they're going to approve it, granting of an expansion on this mine. Now 300 acres, I could probably have 5,000 cattle out there, just let them run over everybody. We could probably put 1,000 pigs out there `cause it's • agricultural use, right. I could go and I could do that. We've tried to be working with the County and for them to think now that we're going to have a mine that expands, crushes, washes, pollutes basically the environment out there, it truly is the greatest threat our property has ever seen. Truly. I've heard tonight really more and more examples of what I consider to be pretty outlandish in terms of behavior, I really do. And I, I'm very careful about that. In business we'd call it bait and switch. Where you offer one thing but with the full intention you know you're going to go that direction or vice versa. I don't know if it's a switch yet, but it sure feels like we're being bated. And I don't appreciate it. So I'll choose to believe that we're not. You aren't the County as anybody else. When I hear others sit up here that are going to go home after six o'clock at night and tell me that the DEQ, this will not apply because noise abatement doesn't apply, because we already have lots of trucks running on it, we're now going to put scales out there, we're going to have residential people coming in there and buying who knows what, birch mulch, rocks, volcanic rock. I don't know what they're going to do and based on their behavior I don't think we should ever nor should anybody else ever approve that they should have that kind of ability to do that. So for me it's really this simple. To you as the Hearings Officer and to the County don't do it. There's a side of me that sits here, and it's probably the Irish side of me, that says you know what we should be doing is we should be talking about closing the thing down. But again I think • that's unreasonable. The previous owners, Cascade Pumice, I don't know 99 how many complaints they received. I don't think many. The current • owners have received probably more than ever took place since Cascade started mining it. There's a behavior there. So to you I ask of the County, don't, don't expand this approval. And hearing what I heard tonight I also would ask that we, we really do, we need compliance that's verified and certified. Much like remember Russia and the United States, let's verify, just don't tell me you're going to do it. `Cause I think there's enough there. We have a weather station, never put up, year and a half. The wind out there is, is quite amazing and I sit here and listen to these people talk about how they're going to do it, and I don't know who's going to do that. I can tell you we get 60 mile an hour winds at our house. We had it built to withstand that out there. There are days when it may just be a light breeze. We've had tornadoes touch down (inaudib C) There's so much going out there that doesn't come up here in this, in this particular setting. So again, I'll conclude you've heard a lot tonight and we appreciate the time. It's just this simple. Please do not expand this application and grant this request. Let `em do what they already have, that's fine, that's reasonable, I don't like it, but as a landowner I don't think it's my place to now come in and try and change those rules. A lot of people might disagree with me, but I don't. They bought that land, we bought ours in 1991, but to grant them that extension, then I need to come and talk to some County people about some other things I'd love to do on our 300 acres. So, that's, it's just that simple. Truly Ms. Briggs. I just don't think there's anything • more to say. The rest of them can talk about the other things they want to do, but don't grant this application and expand it. If they want to surface mine it, continue to do it, and then remediate it and shut it down and turn it back, to have people sit down in Tumalo State Park, and I hope you do go out there and see it, if will be a absolute blight to that hillside and to think we have Oregonians sitting in Tumalo State Park trying to get a view of the Sisters Mountain and looking at an entire landscape that has been torn up and we're waiting to get remediated with no sunset, it will probably out live me Tom. So I think you for your time, I thank you for listening, and again I thank you just for the opportunity. Thank you. McGourin: Good evening. Briggs: Hello. McGourin: My name is Donna McGourin. Last name spelled M-c-G-o-u-r-i-n. 64119 Tumalo Rim Drive. I am President of the Tumalo Rim Property Owners Association and I would like to read my comments if I may. Our subdivision was established in the late 70's and the Homeowner's Association established on January 25, 1977, long before the existence of the current mine. My husband and I have been property owners since 1996. I am in complete agreement with everything that has been stated previously . by the opposition, but I wish to emphasize one particular subject, our water. 100 The Tumalo Rim Water Improvement District was established in 1982 and • currently serves 53 families. When the homeowners purchased their property they had an expectation of continued reliable water service of potable water. David Whistler in his report listed many ways in which our water source could be compromised. There should be a balance between business and residential rights. In this instance the rights of one business seem to out-weight the rights of the Tumalo Rim Property Owner's Association 53 owners. This is a permanent residential area. The mine can be closed or abandoned at any time. Our Association does not want to see an oops moment down the road in two years if we were to find that our wells had been contaminated. This would be a permanent situation that would adversely affect all of our homeowners and their property values. It would render them worthless. Our association does not want to gamble on the possibility of such an outcome nor should the County. I ask on behalf of TRPOA, the acronym, that Deschutes County should deny the Latham Excavation application. If Deschutes County should approve the application I ask that it should consider the gravity of the water issue. The County should enforce all requirements listed David Whistler's letter to the maximum extent possible under the law and should protect the water for citizens of the County and specifically the members of TRPOA. Latham Excavation should be required to provide appropriate safety measures and the County should establish a monitoring program to assure compliance. And on a strictly personal comment, I would hope, oh I forgot what I was going to say. Oh, on a strictly personal comment, just because something can be approved doesn't necessarily mean it should be approved, and that would be for the greater good. Thank you. Briggs: Thank you. Did you want to submit your letter? McGourin: Please. Briggs: Thank you. Good evening Miss Gould. Gould: Good evening Hearings Officer. Thank you for sticking with it. I know it's late. I write in reference... Briggs: We seem to be... Gould: My name is Nunzie Gould. Address 19845 J.W. Brown Road, Bend, 97701. I live to the north of Highway, of Highway 20 from this proposed development. I write in reference to the above application numbers for the exposed expansion of the surface mining operation at 63998 Johnson Road, proposed by Latham Excavation, Inc. I would like to introduce into the record a series of photographs taken of the HapTaylor operation taken at O.B. Riley and Highway 20. And maybe a map is in order here. (Inaudible) • -southern portion of their holdings which is O.B. Riley Road. 101 This is the Tumalo State Park. O.B. Riley crosses at the Tumalo State Park. Tumalo Reservoir Road comes off the hill. It then segways into Johnson (inaudible) Road, which is the site of access. Briggs: Um hm. Gould: What that map does not show is Highway 20. And Highway 20 is the major freight corridor for State of Oregon. Highway 20 would take a person to Sisters and over the mountains to Interstate 5, crossing Highway 20 would take a person to the Redmond area. It would take a person to adjacent resorts such as Eagle Crest or proposed Thornberg Resort. It would take a person to Deschutes Junction, which has a major intersection with the State Route 97. And it would also take a person to north Bend if you were to turn eastward on Highway 20 from O.B. Riley. And I'd like an extension on time to submit a map that would actually show that. I didn't bring it `cause I was hopeful that a global perspective of these types of applications would be included both from mapping and from site visits. So the photos I'd like to submit, the first series is a series of photos that show the HapTaylor site prior to the construction of their new 20,000 square foot office, which they requested per their application 06-25. And prior to the replacement shop, which had burnt. So these are photos A through G from the year 2006. The second series of photos were taken today and show the current use of the site now known as Knife River. As you may know Knife River is a publicly held company and it's headquarters are now located in Tumalo. Those photos 1 through 15. And I'm not techy so we don't have them up on the screen, but they are in color and I think it's very important if Deschutes County is going to reproduce the record they need to reproduce colored documents if they're so entered into, as exhibits, and they tend to have a propensity to not do that if documents are put on their CDD web site that's available on-line. Color documents are scanned in black and white and I find that not a true representation of what's submitted into the record. So I don't know if you rely on the paper record or on CDD scanning, but I will give you color copies so that you have... Briggs: I try to work from the paper record. Gould: Great. At the time of the application for HapTaylor and Knife River office, even though Deschutes County had requirements to demand a transportation impact analysis, they did not. And Deschutes County simply felt the office application would not generate 100 vehicles per day to meet the threshold for requiring the TIA. Today I counted over 80 paved parking spaces at the new Knife River office alone. In addition there are still scads of vehicles parked at the old office, which his still in use, and most of the rest of the entire site has heavy construction vehicles parked all over. Concrete trucks, red and white, low bellied dump trucks, blue and gray, white and orange, • long tongued double dump trucks, blue and gray, white and orange, 102 excavators, front-end loaders, yellow, heavy equipment, and all types of crushing equipment that are moved on and off the site as these are portable units designed to be located on site of heavy construction jobs. Briggs: Okay so this has to do with HapTaylor. Connect it to this proposal. Gould: Add to this the office staff, which are not shown in these photographs, add plant staff vehicles, truck driver's vehicles, and add to this the multiple truck trips per truck per day. This has amounted to enormous traffic within our community. I bring this up because the application for HapTaylor and Knife River was not required to contribute to the failing intersection at Highway 20 and Cook Avenue. They were asked to move their driveway a bit south on O.B. Riley and they were asked to add a turn lane on O. B. Riley. This incidentally has not mended the wide turning radius of long vehicles, which extend beyond the west side of O.B. Riley's pavement by at least five feet. So the global perspective is the existing condition in Tumalo with a failing intersection on a major freight route and you heard testimony in favor of this application from somebody from Tacoma. Now I don't know how you get to Tacoma from Johnson Market Road unless you travel or you cross Highway 20. Briggs: Okay. Gould: Okay? Now there is now over $10,400,000.00 estimated by ODOT for the grade separated interchange planned for Highway 20 known as Tumalo Interchange. And I attach a chart which is evidence by the modernization chart for Region 4 circulated February 14th this year at the Central Oregon Area Commission on Transportation Coact. In this ODOT has identified $400,000 just for environmental analysis to be performed under the 2008- 2011 State Transportation Improvement Plan step. Adjacent to the comments is identified developer cost-share likely. So what percentage of these costs will be contributed by Latham Excavation, Inc.? From the Latham site, as I mentioned you travel on Johnson Market Road to Tumalo Reservoir Road, to O.B. Riley Road, to Highway 20, electing to then cross Highway 20 to head to Redmond or turn right to head to Bend's north end, or you turn left to head to Sisters. So I think there is a direct correlation between transportation trips at the proposed expansion site and a failing current intersection with an outrageously large budget that is not funded for. What percentage of this developer's traffic will be heavy vehicles headed to the currently failing intersection of O.B. Riley, Highway 20, Cook Avenue? And I'd like to add that there is an entire system in Tumalo that is failing. There are three places where you can, actually there are five places that you can access Highway 20 and the idea of the grade separated interchange is to get an alignment for those intersections, and not have multiple intersections that access Highway 20 so you, right now on the south side there's O.B. • Riley and Bailey Road. Opposite O.B. Riley is Cook Avenue, which is also 103 known as Cline Falls Highway, opposite Bailey is 7th Street, which the • espresso joint is located on, Espresso Coffee Drive-up, and then further to the west is 5th street, which services a cut-through to the gas station and the veterinary clinic. Tumalo is located on the north and south of Highway 20 and these intersections, because of the directions of where people are tying to go, and specifically because of truck traffic, whether it be destined to Bend or to Johnson Market Road, or to Knife River's site, people are doing all kinds of crazy maneuvers because they can't safely get across Highway 20. So for instance they'll come down Cline Falls Highway and they'll turn right on 7th street by the vet clinic, then because of the new striping that ODOT has done they'll do a left turn into a refuge lane on Highway 20 to go right onto Daly Road. Now it used to be you just came down Cline Falls Highway, it became Cook and you crossed Highway 20 onto Highway, onto O.B. Riley. That is so dangerous now. It is difficult for truckers to maneuver now. And the solution is a long, in the future project called the Tumalo Interchange. So what I'd like to know is what measures will Deschutes County and ODOT use to assure the Tumalo community that by granting approval for this project there will not be a repeat of the adverse impact to the Tumalo transportation system created by Knife River with their simple addition of an office. My comments previously into the Taylor file indicated that there were plans to relocate the headquarters, and this indeed has occurred all under the guise of an office application. So what limit on truck and vehicle trips will be placed on the Latham application as a • condition of approval so that it, too, does not become a headquarters generating huge trips to this site in the future? What path will there be and who will be measuring? Will this again befall the residents of Tumalo? If you approve this application what assurance will Deschutes County issue the Tumalo community to improve the level of service of O.B. Riley Highway 20 above its current level of service F, which is the lowest level of service? I would encourage you to keep the safety and welfare of the existing Tumalo community in mind. Since 1997 when the Tumalo grade separated interchange was put on the drawing board it was identified it would be needed in 2005. It is now 2008 and the most recent date the community has been issued is perhaps there will be no action before 2013. So in my math that's another five years down the pike before anything might happen. So I question why are we approving an application that increases traffic if we have a failing intersection which is so crucial to this project? The transportation has been unacceptable to the Tumalo community. Here are some things we've done. We've lowered the State speed limit on Highway 20 to assist in mobility, but to little avail. The accidents keep occurring. Last year a Sheriff was involved in a three car incident. ODOT has informed us that a traffic signal is not an option. They want to keep the speeds happening. So how do you keep speeds happening if you keep adding trips, people wanting to get to this site? So I would ask you what safety measures will you, our Hearings Officer, issue to protect the • safety of our cyclists, children, school buses, and motorists who use these 104 • roads daily? And I might add that on the County's bicycle promotional system it has three routes through Tumalo. I'd like to add that at the end of last school year the children who attend Tumalo elementary school had their last day event at the Tumalo State Park and they crossed Highway 20 and that was a scary site to witness including the kids with their training wheels. That was frightening. Now I don't have this written in my testimony, but when you look a the photos of Knife River you can see runoff, you can see where there's been an effort to abate dust from flying off the piles of stored material, hence the watering and the spigots. And there have been two new excavated drainage areas that I do not believe have been approved to allow that water to seep. This is independent of the large drainage swale that is supposed to catch the runoff from the parking lot, that's on the very corner of O.B. Riley and Highway 20. And when I was doing research on the HapTaylor project I found a returned envelope, unable to deliver, a notice of a land use application to our Oregon State Parks Department, and they were the project adjacent to the HapTaylor project and I thought gee how difficult is it really to find an address for a State Agency. And is Deschutes County doing due diligence. And I want to introduce into the record that our County is complaint enforced and in learning of the complaints that have needed to be filed I think that is a statement both on behalf of our County that isn't out there enforcing. I don't know if there still are two enforcement people for our entire county, or whether those positions may have been cut back in recent cut-backs, but I do think that when it comes to the land use applications our community government is not doing good due diligence and for that I'm very saddened and I would encourage you Hearings Officer to take in what you've heard here because people are dedicating their time as are you. We're not paid on this side of the audience tonight, but we're here to highlight some of the deficiencies that are so egregious in this land use application and that our, in, in the case of the mining applications that have been happening in this county, not without precedent, and I just leave you with that and I thank you for your considering the record. Thank you. Briggs: Thank you. Gisler: My name's Patrick Gisler. I live at 64095 Tamaly. Briggs: How do you spell your last name Mr. Gisler. Gisler: That's G as in golf, i-s as in sam, 1-e-r. Briggs: Okay. Gisler: I previously submitted written testimony on the, at least one of the prior applications, I don't know if that transfers forward or not. 105 Briggs: It, it's all part of one file so long as it's, it's, pertains to the Latham 0 Excavation application it's in the record. Gisler: Okay. I, I've owned property there for about 18 years, but I've been in Deschutes County a lot longer. And one of the things about being around a long time is that you've developed an historical perspective. The other thing is that you get old. Maybe not as old as Tom, but. Briggs: He's the benchmark. Gisler: I, in past career I was Certified Engineering Geologist number 49 in the State of Oregon and one of the small jobs that I had was Deschutes County Geologist in the 70's when Senate Bill 100 was passed and the Comprehensive Plan for Deschutes County was written and the resource Goal 5 was considered. And I, I can state unequivocally that the surface mining zoning in this particular location, site 303, was to protect pumice resources and no other product was identified for that site. If you, I'll use a big word, palenspastically recreate the topography... Briggs: Thank you for the big word. Is that in written testimony so I can actually spell it? Gisler: I don't think that's in the past written testimony, but I can submit a note. • Briggs: Okay thank you. Gisler: You can estimate approximately the amount of material that's been removed from the site and it's about a million yards. And that's not to say that the 750,000 yard statement for the resource is somehow binding. But the Deschutes County Commissioners who made the quasi-legislative decision and the neighbors who may have limited their opposition at that time, contemplated that something like 750,000 yards or thereabouts was going to be removed and that the site would be remediated. And so now we have a headwall there and I can tell you even though I am no longer a Certified Engineering Geologist I can tell you that a headwall cannot be remediated. And so what, what is mined there from this point forward is the headwall increases in length and height will stay a headwall for a very, very long time. I'm very concerned about the expansion of mining from pumice to include the Tumalo tuff. I can state unequivocally that tuff, actual tuff, is not pumice. And Tumalo tuff is not an identified resource in Deschutes County. Both the County and the State prohibit the use of, of ash flow tuff, or Tumalo tuff, or tophaceous materials for a road base. There are some uses and that use is problematic. There are at least 50 square miles underlaying directly or near surface of Tumalo tuff and so it's not a particularly rare material in the Bend area. And it is not the kind of resource • needing preservation and protection under Goal 5 nor is the overburden, 106 which includes the topsoil on that site. I do believe that this particular site is ID sensitive given the location of the park and the, it is adjoining within less than a mile from the urban growth, current urban growth boundary of Bend and so it's, doesn't take too much foresight to realize that soon enough, probably sooner than many of us would like, that it's going to be in side the urban growth boundary of Bend. The overburden is particularly important for reclamation of the site and I was surprised and I'm not going to say stunned, but I was very taken back by the intention of the parties, and these are people that I know from this town and I personally know the McClain's, I personally know the Latham's, but I'm, I'm very concerned that they're not being a good neighbor by removing this overburden because that overburden is really the only thing that's going to be available in any quantity to, to heal this site. My impression is that it's, as far as pumice is concerned, is largely spent and I think it's time to look at some reclamation in the near future. You've heard some comments about dust control an the applicant's able counsel discussed the Mock Road standard and Mock is actually the name of the road, it's not meant to imply anything about those standards, but they are very, very old standards and in my opinion they're unacceptably poor standards for dust control. Homes within a mile or so of Mock Road are literally uninhabitable when the wind blows and if you choose to visit Mock Road and Tumalo Reservoir Road and the neighborhood of Mock Road you'll see that even though mining ceased there some years ago the road shoulders are still white from wind blown pumice dust and pumice dust is a particularly unpleasant dust because it's made up of, of broken glass bubbles, volcanic glass bubbles, and so it's very sharp and is a particularly unpleasant contaminant. From the prior testimony the current plan for dust control has, has been an abject failure. There, in the past anyway, there's been no dust control after hours or on weekends. And last time I checked the wind has been known to blow at night and after hours and on weekends. So dust control needs to be a 24 hour seven day a week-type operation. I'm also concerned about the discussion about water, at least water, the use of water on the site. In a quick view of the site plan, which I hadn't had a chance to view before, I see that there's not a settling pond for water. And if you use water to wash off dust rich materials, well, and the water washes that material, then the dust is entrained in the water. Well then you, if you, the normal procedure, and if you think things through from beginning to end, you have to say okay what're we going to do with that water, the normal procedure is to put that water into a containment pond and let the solids settle, and then the water, or at least some portion of the water can be reused. There's, there's no settlement pond here nor is there a discussion of what might be done with the material that settles to this in this pond. The applicant proposes to spray this muddy water on the roads for dust control and have the water evaporate. Well when the water evaporates, what're you going to have left on the roads but a concentration of all the dust that you removed from this material. And • I think that part of the plan is not thought through and perhaps there are 107 solutions. It's not too difficult to make a lined pond and to store the wash water there and to settle the dust or whatever's in the water out of it and then recycle that water and then use it for roads. But I don't see anything on the plan that addresses such a use for the water. There is some concern about the amount of water available. It doesn't take much math, 200 gallons a minute is 288,000 gallons a day. If you're running two water trucks 11 hours they're going to consume about 308,000 gallons, so you can't run two water trucks on that much water and in order to do that out of a 200 gallon a minute well you'd need a tank that stores oh approximately 180,000 gallons because the pump in order to produce 288,000 gallons has to run 24 hours a day seven days a week. And so if you're working during the day and consuming 300,000 gallons a day, which they may not every day. I guess if there's, if the wind's not blowing, it is a windy area though. Wind does come down that canyon pretty good. I think the most important thing for me as a neighbor, though, is the perpetuation of it as an industrial site rather than as a mine. It was already identified when I brought my property and I was in this surface mining impact area, and so on, and being in the business that I've been in, and I've worked in mining, not pumice but other types of mining, in several provinces in Canada, Nevada, California, Alaska, and the mining is something that we recognize, didn't care for, but it was there and contemplated they were going to remove that pumice, reclaim the site, and then that part of history was over. And, but if we're going to bring in crush, or rock to crush and I don't know what other kind of materials, and then . perpetuate it, instead of being a site that was preserved under Goal 5 for a resource, it has become de facto an industrial site. And I don't believe that was contemplated by the Deschutes County Commissioners. I don't believe that was contemplated by the neighbors at that time when the Comprehensive plan was approved, I don't believe it was contemplated by the Deschutes County Planning Commission who approved that plan. And so I don't think those uses are appropriate for this site. I think the applicant's bought a pumice mine, are entitled to remove a reasonable approximation of the anticipated resource, and then they need to undertake the responsibility of reclaiming the site. And it should not become de facto an industrial site at this location. The County needs to look to other appropriate land use zones for that site at such time as the pumice is exhausted, if it's not already exhausted. So if you have any questions, that's it. Briggs: Thank you. Did you have anything you wanted to submit into the record? Gisler: I don't have additional written comments at this time. Briggs: Okay. Gisler: I can provide you with some calculations if you care for `em. 0 108 Briggs: I'll take what you want to give me. • Gisler: Can I do that in the mail. Briggs: I'll be leaving the record open. Now for those folks of you who have hung in here it's 10:30 and, yeah, I was just going to say can I get a quick gander of how many other folks want to testify. One, okay, otherwise I'd take a ten minute break but if there's only a couple of you we'll just keep on going. Tien: This will be quick. Briggs: Okay. Tien: My name's Ray Tien, spelled T-i-e-n. I'm at 63890 Johnson Road, that's the Temple Property. Briggs: Okay. Tien: I want to extend an invitation, if you were going to do a site visit, come on out to our property `cause we border right along the mine. When I saw the staff report saying that really the only residence directly within the quarter mile impact zone for the dust sensitive and noise sensitive areas is the Kemple residence, it's kind of like a knife in my heart because while we live • in the house we sleep in the house, we actually live on the property so we are right up against the mine. I have a three-year-old and a seven-year-old and they are wandering those fields all the time. So my, I'm not, I'm a physician, I'm not a pulmonologist, but I actually am qualified to do lobectomies, so if anybody wants a lobectomy after this meeting, we can line up and for the applicant's or their attorneys I'd be happy to provide a deep discount, so. (Laughter) But anyway I want to make just a quick comment on the Silicosis issue. You know there are three types of Silicosis. There's chronic Silicosis, there is accelerated Silicosis, and then there's acute Silicosis. And most of what OSHA is protecting are the workers working in those particular areas, so the standards they set are really going to be designed to offset or mitigate the damages that occur with accelerated or acute Silicosis. And for all the residents in the area what we're really dealing with are what, what are the impacts of chronic exposure to even low levels of Silica. And there, we know that there is an entity of chronic Silicosis that leads to scarring of the lungs, it looks like a carcinogen as well, and with the, when we bought the property we knew that that surface mine was there, our expectation again was that it was going to close. Chronic Silicosis may not have been such a big problem if it was going to close down, but now with really no time limit being set we have to deal with what are the, what potentially could happen if we are impacted with the Silica. And so there will be no good studies out there to define a level for chronic Silicosis. I mean there will be levels that will be defined for 109 accelerated and acute because those are things that are measurable within a short period of time, but in terms of chronic Silicosis you're looking at timeframes of anywhere up to ten years. And that's time my kids are going to be there and that's a real concern for us. So I would hope that, you know, the arguments that you have heard here from the attorney's, they're very nicely boxed, you know, in a lot of way, but you know I don't live here in this room. I live out on that property. We all live out on that property and we have to deal with those impacts and whereas you might not get an exact level of what level of Silica is appropriate, I would hate for Tumalo Rim and all the Tumalo residents to serve as a test tube for identifying what exactly is the level of Silica permissible before you develop chronic Silicosis. Thank you. Briggs: Thank you. Hoffman: I'm Ronna Hoffman. And I live right next door. And you, I think all the testimony tonight has been fantastic and I thank everybody here. And I kind of hate to go last because there's been so many interesting things before me. But I do grow horses on the property next door and I have little, tiny, weanlings and last year I lost, I lost one due to very unusual disease and the vets were not able to identify it. We've been there since '97. We've never had anything like that and then two other of the babies got extremely sick and we almost lost them. And so there is, there is something in the air that is, is a little dangerous to these very young weanling horses. The dust is enormous. It's, it's very much like when Mt. St. Helens erupted on a windy, windy day and the noise is frightening. I mean you hear the rock crusher and that's, it's big noise, and then the trucks going down the hill and their brakes, and it's, it's frightening to the animals. And the sites bordering our property, we look right over and we see the trucks going, and then that's not good. We're going to have to reroute all our paths. And I'm most concerned about the water like everybody else. And I think we're going to keep, we're going to start testing our water on a regular basis and see what really is going on. So like everybody else I'm, I worry for the health and I worry for the future for what it's doing to our neighborhood and what it's making our neighborhood look like. It's very upsetting and this is suppose to be a beautiful area, Oregon's supposed to be very concerned with green, and this doesn't fit. This is just not right for this area. Thank you. Briggs: Thank you. Last call. Okay. Mr. Blikstad would you like to make any comment? Blikstad: No, but we sure need to decide what to do. Briggs: I think you're talking about schedules. Right, okay. Mr. White do you want to come forward and give some rebuttal, and talk schedules. r 110