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2009-56-Minutes for Meeting January 26,2009 Recorded 2/11/2009DESCHUTES COUNTY OFFICIAL RECORDS CJ ~009'S6 NANCY BLANKENSHIP, COUNTY CLERK COMMISSIONERS' JOURNAL 02/11/2009 10;14;54 AM IIIIIIIII Ilfllllllllll III III 2008-sd 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.ora MINUTES OF PUBLIC HEARING (CONTINUED FROM WEDNESDAY, JANUARY 21, 2009) DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, JANUARY 26, 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 and other representatives of the media and six other citizens. The purpose of the meeting was to take additional testimony on an appeal of the Hearings Officer's decision on files CU-07-102, SP-07-46 (MA-08-3, MA-08-4, A- 08-14 and A-08-20), for Latham Excavation, regarding expanding mining activities at a site located off Johnson Road. The hearing was continued from Wednesday, January 21, 2009 to allow Paul Dewey to testify as agreed, since there was not adequate time for his testimony on January 21. Chair Baney opened the meeting at 9:01 a.m. Laurie Craghead said that any issue not being raised at the hearing would preclude it being considered at an appeal at LUBA. The purpose of the continued hearing today was to allow Paul Dewey an opportunity to testify, as there was not adequate time to take his testimony at the original January 21 hearing. She reiterated that submissions into the written record from anyone for rebuttal only must be in by February 11 at 5 p.m. Final written rebuttal from the applicant is due on February 18 at 5 p.m. Board deliberations would take place on February 23, with the final decision to be made within three weeks afterwards. Paul Dewey testified that his clients are associated with the Hoffman Construction Company of Portland and are not opposed to development, and are also familiar with the applicants. However, there are issues regarding the property that are a concern. Minutes of Board of Commissioners' Continued Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Monday, January 26, 2009 Page 1 of 9 Pages A complaint was filed with the County after a crusher was brought onto the property without a permit. Complaints were also filed with the DEQ (Department of Environmental Quality). The complaint process is not necessarily the best way to handle this issue. A letter was written to force cleanup the landfill area, but was not addressed for months. The number of complaints are down because the complainants have not seen any results of their previous complaints. His clients also see dust on the weekends when the DEQ is not around. The complaints are in limbo. Voluntary compliance is not working because enforcement is held off if there is a pending land use action. He would like to discuss this process at length at some time in the future. Commissioner Luke stated that the County does not have authority over much of the activity; most of it is handled by the DEQ. Mr. Dewey said it is not exclusive jurisdiction, but issues fall between the cracks between the DEQ, DOGAMI (State Department of Geology and Mineral Industries) and the County. The County is supposed to enforce the ESEE (Economic, Social, Environmental and Energy) analysis. There is no clear indication where one agency leaves off and another begins. Commissioner Luke pointed out that the County cannot tell the State what to do. Commissioner Luke said that often reclamation requires hauling in of material. Mr. Dewey said there was wood debris, possibly not garbage, brought in. He said that the Commissioners asked why someone would complain about activities when it has been going on for years. Mr. Dewey replied that the ESEE and Goal 5 in 1990 anticipated 750,000 cubic yards of material being removed. The applicant is now talking about 4.2 million cubic yards or more material, six times the amount of material that was contemplated to be removed in the original ESEE. This would include removing the hill. The rate of removal used to be 7-10 trucks per day; it could now be up to 36 trucks per day or a 100 truck trips. Commissioner Luke said that much of the material went to Deschutes Junction for hauling or processing. He asked if they are using both trucks and trailers; Mr. Dewey replied they have seen both. Some of the trucks are excavation trucks, so the noise and dust are markedly increased. Also, the headwall is a big issue. Cascade was going to slope it; the new application would expand the headwall but no reclamation is indicated. Minutes of Board of Commissioners' Continued Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Monday, January 26, 2009 Page 2 of 9 Pages They say that they can do this under DOGAMI rules if they show it is stable. It could continue to emanate dust for years; who regulates the dust? This would be a permanent dust problem. There has been no crushing on the site for 18 years. Commissioner Luke said that testimony was given that crushing occurred next door. Mr. Dewey said that the ESEE says what can go on there now. The bottom line is that there should be a post-acknowledgement plan amendment as part of the comprehensive plan. This has not been done. The Hearings Office misunderstood the point; she said there are no changed circumstances and it should only go through periodic review. They are changing the amount and type of material to be mined. ESEE's are meant to do a balancing of the resources in the area, but the only analyzed pumice was a scope of 750 cubic yards. The applicant argues that these are generic ESEE's. The Oregon Administrative Rules consider what you are removing. The applicant is saying that anything goes on this site; any amount of material can be removed, including the hillside. They are saying that once it is designated as a mining site, they can mine any and all material. He believes that this is not what the Commissioners wanted in 1990. They recognized the importance of the river and the local park. State Parks has also called for an ESEE. It is critical because of the role it plays. The applicant argues it is not that significant; that the Code implements the plan. However, the ESEE is referred to often in Code, and ESEE should trump Code if it is not clear. Other aspects of Goal 5 are the two other Goal 5 resources; state scenic waterways and Tumalo State Park, and the resulting new conflicting use with those Goal 5 resources. Commissioner Luke stated that you have to go to State Parks if you want to do anything within that scenic area. Mr. Dewey said that dust from the site blows into the scenic waterway. Commissioner Luke stated that the dust blows into areas from a lot of places. Mr. Dewey said that it was pointed out that farming also does this, but this mining site would be a permanent source of dust, which will increase substantially. Mr. Dewey said that when talking about hydromulch, DOGAMI thought this would not work on a vertical headwall. It has been spayed onto about 10% of the property, but there is no way it is going to remain stable. Minutes of Board of Commissioners' Continued Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Monday, January 26, 2009 Page 3 of 9 Pages Code allows crushing if the ESEE designates it, but ESEE only allows processing. He feels this is exclusive of crushing and should be specifically designated to be allowed. The applicant said that if the County interprets this in that way, there won't be any sites allowed to do crushing in the County. Mr. Dewey differs in that he feels there are no other sites comparable to this one, which has not had crushing on site for 18 years. The others will keep crushing if they are already doing so. The Board needs to talk about the scope of the inventory as well. The noise level from crushing is what spurred his clients into complaining, along with the increased dust. There is admittedly very little aggregate on the site but they may want to crush the excavated material. It is hard to know what can be enforced as it will be hard to know if they are crushing material that is there or has been brought in. He asked whether DOGAMI has exclusive jurisdiction of the site. There cannot be any more than five acres being disturbed at any given time. The consequences of this are quite large. The lack of information in management plan is an issue. A letter to DOGAMI that was acknowledged by DOGAMI indicates that DOGAMI will require a new reclamation plan and permit. The problem for the County and his clients is that this information is needed now. Otherwise it is hard to know what is being assessed. Commissioner Luke asked if there is something in the record that says that anything in it is not acceptable to DOGAMI. Mr. Dewey said that there is a letter of September 15, 2008, saying that a new plan is needed based on new activities. There are substantial disagreements over what is being done now and what they want to do in the future, including equipment on the site. Mr. Dewey also explained that he does not believe there is an adequate traffic study in the record. The study assumes the activity will be about the same. There is particular concern about truck traffic at Cook Avenue and O.B. Riley Road. Commissioner Luke said traffic could go on Johnson Road or another direction. Mr. Dewey said that there is also some reference in Code that the County should be compensated for increased truck traffic on County roads. Minutes of Board of Commissioners' Continued Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Monday, January 26, 2009 Page 4 of 9 Pages In regard to fugitive dust, Code 18.52. 100 requires that ESEE identified impacts be addressed. Equipment dust is monitored by the DEQ. Hydromulching should be replaced every six months. (He submitted a photo taken from a client, from the Hoffman's, north, on the weekend, November 8 and 9, 2008.) Mr. Dewey said that the dust is coming from the pit. The concern is not just with the headwall, but the flatter area too. Hydromulching helps but is not a permanent solution and needs to be reapplied. Commissioner Baney said that the dust could have been from a backhoe or other equipment, or it could be coming from a stockpile. Commissioner Luke stated that the hydromulching done along roads usually includes some native seeds. Commissioner Luke said it is hard enough to get three Commissioners to agree on some things, and it is even that much more challenging to have different agencies agree. Mr. Dewy stated that an air specialist has advised that the studies done should be updated since the standards and methodology have changed. What is needed is additional testing with the use of off-site buckets so the silica can be analyzed. Even in 1997 the land use approval called for monitoring of the dust. None of this monitoring was done. Given the risk and concerns involved, and the lack of monitoring, this needs further study and potential health issues need to be considered. The dust is a concern for his clients, for people as well as horses and other animals. The ESEE was concerned with fugitive dust in regard to the river, park and livestock. This issue has not been adequately addressed. A subject regard inadequate approvals in the Hearings Officer is included in Mr. Dewey's notebook. Two issues that were not included in the notebook were in regard to the Hearings Officer's notation about stockpiles within '/a mile of conflicting uses, but this should not be limited to residences. There is one residence built in 1990 that is within that area. The clients are concerned about the current stockpiles as well as the future stockpiles, and the applicant has not shown where those stockpiles might be. The quantity has not been explained either. The major concerns are the noise and dust from the stockpiles, as well as the visual blight. In regard to noise, the noise expert for the applicant said that the only impacts subject to noise standards are the campgrounds. The ESEE is concerned about noise impacts to the park itself. At one point these noise rules were enforceable by DEQ. Minutes of Board of Commissioners' Continued Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Monday, January 26, 2009 Page 5 of 9 Pages Commissioner Luke asked if Highway 20 is closer to the mine than it is to the park. There is some noise from the highway that impacts the park. It also appears that Knife River is fairly close, with the same type of equipment. Mr. Dewey pointed out that this is right next door. He does not know if the Knife River site is close enough to the park to be a problem. Mr. Dewey stated that his clients are frustrated because the applicants got what they want but don't like the few conditions applied. The applicants seem to want all or nothing. Under condition # 12, the applicant argues noise and dust sensitive language comes from DEQ regulations and the 1990 documents. It really comes from the ESEE, which also refers to dwellings and being on the property. The applicant referred to protecting a driveway. It is not just a driveway; the Hoffmans actually use it as a trail. Having a buffer on the north side of the property is supported; however, it is not known what the buffer might be. It was not stated if it was to be landscaping or something else. It would be nice for the County to specify this. The amendment excludes garages and workshops from the rule; but the exclusion just got rid of other noisemaking rules. Garages and workshops generate noise themselves. The other uses need to be protected. Another condition of approval is that the crusher be limited to the southwest site and be below grade. The applicant is seeking to have up to three different sites, and they are much closer to the Hoffman's property and the park. Condition # 17 talks about expansion of the headwall. The reason it is not good is that the ESEE identified visibility from the State Park. It will expand up the hill, getting wider and taller, and the visuals and dust are very real concerns. The scale is much greater than a road cut. The trail in question is one of the better used trails in the park. This is why a new ESEE is needed. (A photo was submitted in this regard.) He said he included a lot of testimony from the original hearing before the Hearings Officer because so many people could not come to the Commissioners' hearing since it started early, at 4:00 p.m. Most hearings start at 6:00 or so to allow time for people to get there. Minutes of Board of Commissioners' Continued Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Monday, January 26, 2009 Page 6 of 9 Pages Commissioner Luke asked what material has been already taken out. Mr. Dewey said that the applicant had some records from DOGAMI but the records appear to be incomplete. It is not clear how much has been removed. The approval for Cascade Pumice is much different than the one for this purpose. Commissioner Luke asked that since there was prior approval for a certain amount, he assumed they could take over that operation. Mr. Dewey stated that the original ESEE contemplated 760,000 cubic yards. This new proposal is so much different that they should have to get a new approval. Commissioner Luke asked if any other counties have ever taken over DOGAMI responsibilities. Mr. Dewey replied he did not know. Commissioner Baney continued the hearing until the last portion of the recording of the minutes of the January 21 hearing have been reviewed regarding the parameters of leaving the record open. This was being done. At this time the Board went into its 10:00 a.m. regular business meeting. At 10:15 a.m., after the audio minutes were reviewed, it was determined that submittals into the record from all parties would not include any new evidence. Bruce White said he would not rebut the information from the neighbors but might need new evidence for something that came in today that he had not yet had a chance to review. Ms. Craghead said that it was for rebuttal evidence only, not new evidence. Commissioner Baney stated that she didn't remember this requirement at other hearings. Commissioner Luke said that the timeframe was the issue. If the applicant is allowed to put in new evidence, everyone needs an opportunity to respond to it. Commissioner Baney stated that Mr. White chose not to have the rebuttal that night but should have been able to. Commissioner Luke said that if new testimony is allowed, everyone has a right to rebut that testimony, so the record would have to be extended for another week. Minutes of Board of Commissioners' Continued Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Monday, January 26, 2009 Page 7 of 9 Pages Ms. Craghead stated that notice would have to be sent to the parties if this is changed. She asked if Mr. White would be willing to extend the time since he didn't get to hear Mr. Dewey's testimony prior to today. Commissioner Luke said if the Board does this, it would have to be extended to give notice to those who were at the hearing. Commissioner Unger supported just accepting written rebuttal only, with no new evidence. The applicant gets the last chance at rebuttal. Commissioner Baney said this excludes including new information for rebuttal. Mr. White feels it is his right to do this after Mr. Dewey's testimony. Commissioner Luke said that he cannot envision needing further new evidence; that given the size of the record, there is probably nothing new to be added. He was surprised that at the January 21 hearing, the applicant did not say he wanted to testify orally after Mr. Dewey's testimony. That is what he understood and it was agreed to. Commissioner Luke said he does not feel he needs additional new evidence that isn't already in the record to be able to make a decision. Commissioner Baney stated that the record is open until February 11 for written testimony. The oral record is closed. DATED this 26th Day of January 2009 for the Deschutes County Board of Commissioners. (J)i L 1 Tammy Baney, Chair ATTEST: /LI Recording Secretary Dennis R. Luke, Vice Chair alax Alan Unger, Commissioner Minutes of Board of Commissioners' Continued Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Monday, January 26, 2009 Page 8 of 9 Pages Attachments Exhibit A: Exhibit B Photograph of dust blowing Photograph of mine from the State Park Minutes of Board of Commissioners' Continued Public Hearing regarding an Appeal Concerning Expansion of Mining Activities - Latham Monday, January 26, 2009 Page 9 of 9 Pages 1 T 26M ~~F A u~ o ~ ~ ca