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2011-2944-Minutes for Meeting June 13,2011 Recorded 7/7/2011DESCHUTES COUNTY OFFICIAL NANCY BLANKENSHIP, COUNTY COMMISSIONERS' JOURNAL 11111111111)1111111111111111111 2011-21 4 RECORD CLERKS U 1011.2944 07/07/201108:30:39 AM Do not remove this page from original document. Deschutes County Clerk Certificate Page Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, JUNE 139 2011 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Tammy Baney, Alan Unger and Anthony DeBone. Also present were Dave Kanner, County Administrator; Laurie Craghead, County Counsel; Tom Anderson, Nick Lelack, Peter Russell and Paul Blikstad, Community Development; and approximately a dozen other citizens. Chair Baney opened the meeting at 10:04 a.m. Due to recording problems, the meeting began late, at 10:25 a.m. 1. Before the Board was Citizen Input. None was offered. 2. Before the Board was Consideration of Second Reading, by Title Only, and Adoption of Ordinance No. 2011-005, Amending Code, Creating Transportation and Land Use Policies for Deschutes Junction. Peter Russell gave a brief overview of the item. There have been no changes since the first reading. Commissioner DeBone said that he would like to have a date certain indicated, but was advised that there can be a way to do this through the use of a study area as a guideline. Laurie Craghead stated that the record is closed and nothing new can be submitted. Commissioner Unger voiced concern that ODOT has not been that involved in this process. He supports the idea but is not sure how to get there. Minutes of Board of Commissioners' Business Meeting Monday, June 13, 2011 Page 1 of 15 Pages Ms. Craghead said that Doug White's letter cannot be submitted after the record was closed but wording can be changed through reading the language into the record. However, there has not been public testimony on that particular language. It could make the Ordinance subject to challenge. No decision was made on this particular area and she is not sure if this is part of the previous record. Peter Russell said that Deschutes Junction has been defined as the rural industrial and commercial areas now in existence. They can go with what is already in the comp plan; or can use ODOT's standards that would include all four quads. Another option is something a bit bigger than that as a study area for the master plan. This could be more completely defined at the time the master plan is addressed. Chair Baney said that it appears that Commissioner DeBone wants a defined date, but it would not be necessary to have this in the Ordinance. Ms. Craghead stated that the comprehensive plan will need to be amended anyway when the master plan is addressed. The action plan can include dates. Commissioner DeBone does not want to lose track of the IAMP criteria. He would like to get a feel for the timeframe for the area. Mr. Russell stated that the larger comprehensive plan will be adopted, and as TSP and other plans and projects come together, the comprehensive plan will be adjusted as needed. Before the formal process begins, the boundaries of the local master plan will be introduced and discussed. Nick Lelack said that the boundaries of Deschutes Junction have not been subject to a hearing, but during deliberations the Board will have the ability to have the IAMP study areas defined. UNGER: Move second reading by title only. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Chair Baney did the second reading of the Ordinance by title only. Minutes of Board of Commissioners' Business Meeting Monday, June 13, 2011 Page 2 of 15 Pages UNGER: Move adoption of Ordinance No. 2011-005. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. 3. Before the Board was Consideration of First Reading, by Title Only, of Ordinance No. 2011-014, Amending Code to Change Comprehensive Plan Designation of Certain Property from Surface Mining and Agricultural to Rural Residential Exception Area. Suggested Motion: Conduct First Reading by Title Only of Ordinance No. 2011-014, Amending Code in regard to Property Designation from Surface Mining and Agricultural to Rural Residential Exception Area Ms. Craghead said the Board approved this change for the eastern portion of the property a year ago, with conditions. The conditions have been met at this time. No public hearing is necessary. Commissioner Unger stated that it appears that there has been no movement on some of these issues. Ms. Craghead said the Board decided to rezone this one and testimony has already been taken. This is just a delay of the reading of the Ordinance. Commissioner Unger said that this was being used as a carrot to get more action done in the other areas. There are two landowners, one of which is motivated and the other isn't. Ms. Craghead stated that this was already decided. Tia Lewis said that the Board already decided this, but the only thing missing was the legal description. Ms. Craghead said the Board already decided on this portion, and voiced concern about taking testimony or ex parte contact. The legal description has been provided. Chair Baney would like to have a work session on this property in general to help Commissioner DeBone have a better understanding of issues affecting the entire property. DEBONE: Move first reading by title only of Ordinance No. 2011-014. UNGER: Second. Minutes of Board of Commissioners' Business Meeting Monday, June 13, 2011 Page 3 of 15 Pages VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Chair Baney conducted the first reading of the Ordinance. The second reading will be conducted no sooner than two weeks from today. 4. Before the Board was Consideration of First Reading, by Title Only, of Ordinance No. 2011-015, Amending Code to Change Zoning Designation of Certain Property from Surface Mining and Exclusive Farm Use to Rural Residential. DEBONE: Move first reading by title only of Ordinance No. 2011-015. UNGER: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Chair Baney conducted the first reading of the Ordinance. The second reading will be conducted no sooner than two weeks from today. 5. Before the Board was a Public Hearing on a Conditional Use Permit and Site Plan for Mining Activities at Site No. 303 on Johnson Road (Latham LUBA Remand). Chair Baney read the opening statement on this issue. In regard to ex parte contacts, bias or conflicts of interest, the Commissioners indicated they had none. There were no challenges. Paul Blikstad provided a brief overview of the item, referring to his staff report. This has been subject to several appeals. There is a 90-day review period, which runs out Friday, July 29. A second hearing on this matter would be a potential problem. The LUBA record is over 4,000 pages. Ms. Craghead stated that the Board received an electronic version of the record previously. Mr. Blikstad referenced Bruce White's letter from last week, along with ESEE findings and decision, and a definition of the surface mining zone. Minutes of Board of Commissioners' Business Meeting Monday, June 13, 2011 Page 4 of 15 Pages He said his staff report will reference the Hoffman assignments of error and then the Latham assignments of error. In regard to the Tumalo tuff mineral and pumice, the primary question is whether mining of the tuff requires an amendment of the ESEE, adopted in 1990. All the County's mining sites were subject to ESEE analysis. LUBA found that the County was correct in regard to mining of the tuff and conflicting uses in the area. LUBA thought it might need a post-acknowledgement plan amendment (PAPA), but the County could explain why this does not change the Goal 5 program. Requiring a PAPA would necessitate an application from the Lathams, and a subsequent hearings process. This could result in an Ordinance amending the ESEE; or it could be that the County made adequate findings that mining the tuff does not affect the previous decision. Chair Baney asked if, per page 17, if the quality and quantity was not known at the time, or if there are findings at the time that this was known. Mr. Blikstad stated that there was not necessarily a geologic study done on mining areas, and the County relied on the owner of the property to provide information on what material they thought was on the property. It is clear that the Tumalo tuff has to be removed to get to the pumice. Ms. Craghead stated this was testimony at the previous hearing. They were not required to know, per LUBA, but if they had known should it have been in the ESEE. Mr. Blikstad referred to the matrix. Another issue is the Tumalo State Park issue. Protecting the headwall would be exempt from screening to benefit the Hoffman's. It is known this is a topographic issue and cannot easily be screened due to the terrain. The findings need to more clearly state details regarding the headwall. It may be difficult or impossible to screen it. He said he has walked the upper reaches and the proposed headwall, and he could not see much of the Hoffinan residence, except perhaps the top of the roof. It is not clear in the record as to what can be seen from the Hoffman residence. Ms. Blikstad stated that he has also been all over Tumalo State Park and it was clear in the original proceedings that the only visible location where the headwall can be seen is from the knob. LUBA found the findings confusing in regard to screening the headwall. They may want to require screening regardless if it is effective, or want an explanation of why it can't be done. Minutes of Board of Commissioners' Business Meeting Monday, June 13, 2011 Page 5 of 15 Pages The 4th assignment of error relates to the storage of materials not being sold, in this case mostly topsoil. (He referred to an oversized map) The map shows pre-1990 houses and those built since that time. There are two stockpiles; one to be removed and one left over from Bend Aggregate mining activities. You can tell that one has been there for a while as it is growing vegetation. The piles have to be moved or be found as exempt. The applicant proposed to move the pile that they created. The 5th assignment of error has to do with ongoing incremental reclamation. It is only shown in the ESEE analysis. LUBA spoke about DOGAMI being involved. A condition could delegate this reclamation to DOGAMI, or they need to try to figure out what the meaning of incremental reclamation is in this context. Mr. Blikstad said he feels the reference to DOGAMI is the better option. It has not been addressed in any prior County decision, so it would be difficult to define. In regard to the Latham assignments of error, included are proposed crusher locations on the site. County standards require them to be placed no less than 1/ mile away from a sensitive use. LUBA found no basis for this because DEQ indicates they meet noise limitations. The crusher can be located at all three sites per LUBA. Ms. Craghead said that it apparently makes it more efficient to not have to move the crushers around; that it is more efficient to crush in the same place and then get the materials off-site. The 2nd assignment of error relates to the other crusher sites. LUBA said the County's findings were unclear, and wants the Board to examine all three crusher sites. LUBA says that if they are to be there longer than 18 months, they need to be screened from visibility. Another issue is the dust impacts of excavation. These do not exceed DEQ emission standards. One standard requires that regional precautions be taken. No further mining of the headwall can occur until it can be demonstrated that the dust can be controlled. LUBA found that they don't have to keep material from becoming airborne, and basically took no position on this. Mr. Blikstad then went over the possible options to address this issue. Discussion occurred regarding limiting testimony time so that there will be adequate time for rebuttal. Minutes of Board of Commissioners' Business Meeting Monday, June 13, 2011 Page 6 of 15 Pages Pat McClain, one owner of Latham Excavation, came forward with Bruce White, attorney. Mr. White had additional submittals (attached for reference). Clarification was discussed regarding when new evidence can be allowed. Chair Baney said there would be opportunity to offer new material in rebuttal. Mr. White referred to a bullet point summary. He said that they are open to Board members making individual site visits if desired. In regard to whether the ESEE included the headwall, he said that no mention of this was made in the ESEE. It is not correct to say it did not cover the headwall; it covered the entire site. Condition #23 allows for mining the headwall if there was additional dust control. He referred to pages 2 and 3 of the document, and said there is a legal context for making ESEE decisions. The important thing is that the ESEE's are not required to be very detailed. There was no reference of the final configuration. There were some dust and visual issues related to the headwall, but he believes the Board got most of the way there in its decision. He said the Andy Siemens letter refers to this, and it was all of the same volcanic action. There is pumice within the tuff itself. He summarized LUBA's decision and believes the Board can make adequate findings. He referred to an oversized aerial map, and stated that the Board made a comparison between three sites, 303, 304, 305 and 306. All are very close to the Deschutes River. State Parks supplied a letter regarding sites 303 and 304 not being an issue. The figure given for mining would be the entire property. There is more opposition now than there was when the sites were first considered in the 1980's as a resource. If the ESEE situation is not acceptable, it would require an amendment, and the rules have changed since then. There are no sites in the County that have inventoried tuff. This could come up in other sites where this material is available. Scenic issues are off the table except for the waterways. It was found not to be a visual impact. Minutes of Board of Commissioners' Business Meeting Monday, June 13, 2011 Page 7 of 15 Pages Regarding the issue of dust, additional information from the geotech has been provided. The dust does not come from the headwall in general. There is an area that might have been a problem, but the face, once hardened into a shell, does not promote dust. Mr. Siemens said that if the face is watered when excavation is done, this would help to mitigate. Mulch would not be effective on the face. An earthen berm has vegetated. There might be other areas such as stacks and a pointed stockpile, which can be mulched. Watering and mulching can be applied in some areas. In term of the stockpiles, there are three sets. One could be moved (he referred to exhibit 4 in Mr. McClain's letter); but others were moved by Cascade Pumice and the new owner inherited this. Some is within the Todd and Hoffinan quarter-mile circle, but the Board could make a finding of an exception. If not, it will be moved into the middle portion. Some exceptions were already granted due to the topography of the land. There is another stockpile, which is a formation left over from Bend Aggregate in the 1980's, which may require excavation. Mr. McClain provided testimony about what could be seen with binoculars. The correct finding is a topographical exception. LUBA seems to feel that there is no option to screen on the north border due to the ridge, making any screening ineffective. Trees cannot be grown tall enough to screen this. In regard to the issue of screening for the State park and two residences nearby, the topographical exception should apply. The Ordinance is not clear on this. He suggested a berm of twelve feet that would not screen the headwall but might screen part of the excavated areas. They would need vehicular access, however, proposed further away from the Hoffman residence. In terms of the three processing sites, they are needed in part because of the cost of fuel. If the processing can be done closer to the excavation sites, it is better for costs and keeps the noise in one area. The noise study requires a five-foot berm or depression in the northeast processing site. That could be a condition of approval. No other noise mitigation was required. They propose berms of at least fifteen feet as the equipment is 13-1/2 feet tall. Initially they will screen the southwest processing site with the existing tuff pile or a free-standing screening berm. The processing sites are staked and photos are contained in Mr. McClain's testimony. The eastern boundary of the property has also been staked. Minutes of Board of Commissioners' Business Meeting Monday, June 13, 2011 Page 8 of 15 Pages Mr. White emphasized that even if the application is not approved, there is still a site plan that allows mining to an extent and the headwall would be exposed at some level. The question then becomes the economic viability. There is a market for this product and a different business plan from the previous owner. He supports staff in its opinion on how this should be handled. Incremental reclamation is too vague. They may want to operate in different locations at different times, and may have to work on this with DOGAMI. They have the right to amend a reclamation plan with DOGAMI. Chris Parkins indicated he is neutral, but is testifying because Oregon State Parks is not against Mr. Latham and the other owners. Any change in activity should not justify a new ESEE permit request, but consideration should be given to impacts to the Park. This was brought up previously, and he committed to speak up on behalf of Park visitors in relation to mining in the area. The last time he testified, he was the High Desert District Manager. Since then he was assigned to cover the North Central District. Tumalo Management is no longer in his prevue, but he agreed to come to the meeting because he is familiar with the area. The Parks is not against Mr. McClain, and they have been cooperative. The purpose of his comments is to say that any expansion or change of use of site 303 might affect Park users. In 2010, there were 251,000 day users and 45,000 campers. They want to make sure that effects on the Park are considered. The site is visible from a designated interpreted Park area. Also, besides visibility are the effects of noise and dust. There have not been any complaints regarding noise, but increased traffic and equipment should be assessed in regard to the Park experience. The Commissioners called for a five-minute break at 12:00 noon. Paul Dewey spoke on behalf of the Hoffman's, and provided a handout. He noted that several others could not be here today, but will likely want to present written testimony. Minutes of Board of Commissioners' Business Meeting Monday, June 13, 2011 Page 9 of 15 Pages He wanted to talk about two different ways mining sites are regulated. One is the comprehensive plan through the ESEE, which lists restrictions. The other way is by zoning ordinance. The last go-round they argued for an ESEE analysis, which shows conflicts. The Board elected to not go with a new ESEE, but to try to regulate use of the headwall. LUBA said there is not much flexibility for the County to do this; ESEE has the most authority. The question is whether a new ESEE should be required. LUBA basically felt it was unconceivable to them that there is an unidentified material not noted within an ESEE. They looked at gravel and pumice in a much smaller quantities, and now tuff is included. It means dismantling of the headwall that will impact the Park and nearby residences. If the ESEE allowed mining of the entire site, much of the site is basalt, and it would have to be blasted off the top of the hill and dug down 80 feet to get to the pumice. In the recent past, mining of the flats was done and tuff was incidental. Once you start going up the hillside, it is 30 or more feet and is not incidental. If the Board finds that mining of tuff is incidental, care must be taken that it is minor. This much material is not incidental in any way. The only effective means to do this is an ESEE analysis. There is not enough time to discover the impacts and tradeoffs. And ESEE would allow for a review and balance of the interests in the area. There is not enough flexibility under zoning code to do this. He said that Mr. White indicated the ESEE did not mention the headwall so he feels it is automatically included. Mr. Dewey feels that bringing down the headwall was not to be included. Past mining was in the pits. The Board stated that with the exception of the headwall, the other mining was anticipated by the ESEE. This was not appealed by Latham at the time. He stated that the subject of reclamation is another issue. Cascade Mining had a plan in place, but it was a fundamentally different operation. They were not going to remove the tuff but were going to use it for reclamation. Thirty or thirty-five feet would be removed and then reused. There would be incremental, ongoing reclamation as they moved around the property. What was proposed and anticipated previously was not taking away the tuff but mining only the pumice and going thirty-five feet, and reclaiming the headwall with the tuff. Latham wants to create a large headwall and not restore the slope. They want to leave the headwall as is because they say it is stable, and sell off the tuff. This will be an ecological and social scar with huge ramifications. Minutes of Board of Commissioners' Business Meeting Monday, June 13, 2011 Page 10 of 15 Pages This needs to be reviewed in an ESEE and not within the County's Code. Just because DOGAMI controls how reclamation happens does not mean that the County has no authority. Mining is a passing use and eventually the land will be used otherwise. This can only be done in the scope of an ESEE, and the only flexibility the County has is to request a new ESEE. He said an analysis of whether it is appropriate to operated under SP-95-10 was also done. Mike VanWaas said he lives in the area, and indicated it is not clear whether the record will be left open. He will defer his comments if it will be. Chair Baney said that the record will be left open for a period of time. Sanders Nye said he would like to defer his testimony at this time as well. Skip and Karen Grossman came before the Board. Mr. Grossman said they live off Johnson Road, and bought the property in 2009 based on knowledge of the area at the time, including the mine. He tried to understand what was going on, but it is rather complicated. With the application expanding the scope of work, they are concerned about noise, dust and traffic. He is not anti-growth or anti- jobs, but feels an updated environmental analysis should be done in light of proposed expanded operations at the mine. Danielle Nye of 63890 Johnson Road said she lives directly behind the mine. She has three children, two of which have health issues, so she is concerned about air quality, dust, noise and traffic. Cascades Academy is building a facility nearby as well, and children will be in the area all the time. She is concerned about her property value being affected by the mining being closer to her home. She feels the priority of the community should be environmental impacts and what the tradeoffs are. As a board member of Cascades Academy, she is dedicated to the future of the community. She wants the Board to consider how this will affect the future of the area. She indicated she purchased her home in September 2010; the Tiens were the previous owners. Chair Baney pointed out that the use is an approved use and resource land is highly protected by the State. Minutes of Board of Commissioners' Business Meeting Monday, June 13, 2011 Page 11 of 15 Pages Helen Whistler explained she has owned property in the area since 1994. She indicated that dust is a big issue, and one of the things that has become common are the dust-driven winds. The neighborhood tried to file DEQ reports but those were not acted on adequately. The fact they have not filed recently does not mean there are not substantial times when dangerous dust storms have occurred. She knows that dust happens in general, but the amount of relief provided is inconceivable if this continues. She does not think this was considered in the ESEE. The County and area has changed, and other things need to be taken into consideration. The other issue is the reclamation of the land. It was required by DOGAMI and the County added to it. That's what the owners should operate under now. Nothing has been reclaimed under the new owner. Even the pit area needs to be addressed. A comment was made that the new owner inherited the problem. However, it is their problem now and they need to take care of it. She said that last Wednesday she attended the County Planning Commission meeting, at which it was said they have a lot to do and a heavy workload. In every instance they wanted the easy way out, but the easiest way is not always the right way. David Adams of the Tumalo Rim Drive Homeowners Association stated that he participated at all the hearings through 2008-2009. (He provided a handout at this time, photos of the site.) He asked how they can possibly reclaim something like this big pit in the ground. It will probably be impossible. He would like to see the ESEE amended. They are dealing with a long-term industrial operation that will result in heavy truck traffic, and more noise and dust issues. He said that 3.4 million cubic yards of Tumalo tuff being mined and hauled away is a big operation. At ten yards per load, he computed that will be 340,000 loads, at six loads per hour, eight hours a day, and will go on for nineteen years. There would undoubtedly be noise and dust issues, crushers, loaders, trucks, and more. The point is that noise and dust don't have to violate standards to be a nuisance. Everyone has head the beeping noises from trucks backing up and how annoying that can be. Long term, it would take years to mine the property, and is a big problem. Minutes of Board of Commissioners' Business Meeting Monday, June 13, 2011 Page 12 of 15 Pages He pointed out that if there are concerns by residents, they'd be subject to complaints to DOGAMI, which has not acted in a satisfactory way in the past. If this happens without an ESEE amendment, the applicant can come back for more site plan changes or conditional use permits as they expand operations. If this is to take 19 or 20 years, the County would be dealing with an ESEE from 1989 or 1990. For that reason, it needs to be amended so that future Boards will find this an easier process. Another reason is that there will be more parties involved, not just the current ones. At the intersection of Johnson and Tumalo Reservoir Road, a church has purchased a property and they plan to develop it within three to five years. Cascade Academy is also in the area, and the Coats gravel mine property was rezoned for residential use. There will obviously be additional flavors in the area impacted by changes to the mine. These need to be considered as well. At this time, the Board decided to: • Leave the record open for new evidence until 5 PM Monday, June 20, 2011. • Accept rebuttal from the applicant by 5 PM on June 24, 2011. • Review and deliberate on Wednesday, June 29, 2011 at the 10 AM business meeting. The clock runs out on July 29, 2011 so a decision will need to be made early enough in the month to allow for findings to be written. Before the Board was Consideration of Approval of the Consent Agenda. UNGER: Move approval, excluding the minutes of June 8. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Consent Agenda Items 6. Board Signature of a Letter Thanking Jack Blum for his Years of Service on the Local Public Safety Coordinating Council 7. Board Signature of a Letter Appointing Shelly Smith of the KIDS Center to the Public Safety Coordinating Council, through December 31, 2012 Minutes of Board of Commissioners' Business Meeting Monday, June 13, 2011 Page 13 of 15 Pages 8. Board Signature of a Letter Accepting the Resignation of Patricia Kuratek from the Deschutes County Children & Families Commission, and Thanking her for her Service 9. Approval of Minutes: • Business Meeting: June 8 • Work Session: June 8 • Public Hearing on Comprehensive Plan: May 31 CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 10. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District. None were available at this time. CONVENED AS THE GOVERNING BODY OF THE EXTENSION AND 4-H COUNTY SERVICE DISTRICT 11. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District. None were available at this time. RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 12. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County. None were available at this time. 13. ADDITIONS TO THE AGENDA None were discussed. Minutes of Board of Commissioners' Business Meeting Monday, June 13, 2011 Page 14 of 15 Pages Being no further items discussed, the meeting adjourned at 12:55 a.m. DATED this z,7 Day of 2011 for the Deschutes County Board of Commission s. Tammy an y, Chair Zoo Anthony DeBone, Vice Chair ATTEST: Alan Unger, Commissioner Recording Secretary Minutes of Board of Commissioners' Business Meeting Monday, June 13, 2011 Page 15 of 15 Pages Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., MONDAY, JUNE 13, 2011 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend 1. CITIZEN INPUT This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues that are not already on the agenda. Citizens who wish to speak should sign up prior to the beginning of the meeting on the sign-up cards provided. Please use the microphone and also state your name and address at the time the Board calls on you to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing will NOT be included in the record of that hearing. 2. CONSIDERATION of Second Reading, by Title Only, and Adoption of Ordinance No. 2011-005, Amending Code, Creating Transportation and Land Use Policies for Deschutes Junction - Peter Russell, Community Development Suggested Motions: • Conduct Second Reading by Title Only of Ordinance No. 2011-005, Amending Code to Create Transportation and Land Use Policies for Deschutes Junction. • Move adoption of Ordinance No. 2011-005. 3. CONSIDERATION of First Reading, by Title Only, of Ordinance No. 2011- 014, Amending Code to Change Comprehensive Plan Designation of Certain Property from Surface Mining and Agricultural to Rural Residential Exception Area - Will Groves, Community Development Suggested Motion: Conduct First Reading by Title Only of Ordinance No. 2011-014, Amending Code in regard to Property Designation from Surface Mining and Agricultural to Rural Residential Exception Area Board of Commissioners' Business Meeting Agenda Monday, June 13, 2011 Page 1 of 7 Pages 4. CONSIDERATION of First Reading, by Title Only, of Ordinance No. 2011- 015, Amending Code to Change Zoning Designation of Certain Property from Surface Mining and Exclusive Farm Use to Rural Residential - Will Groves, Community Development Suggested Motion: Conduct First Reading by Title Only of Ordinance No. 2011-015, Amending Code in regard to Property Designation from Surface Mining and EFU to Rural Residential. 5. A PUBLIC HEARING on a Conditional Use Permit and Site Plan for Mining Activities at Site No. 303 on Johnson Road (Latham LUBA Remand) - Paul Blikstad, Community Development Suggested Motion: Conduct hearing. CONSENT AGENDA 6. Board Signature of a Letter Thanking Jack Blum for his Years of Service on the Local Public Safety Coordinating Council 7. Board Signature of a Letter Appointing Shelly Smith of the KIDS Center to the Public Safety Coordinating Council, through December 31, 2012 8. Board Signature of a Letter Accepting the Resignation of Patricia Kuratek from the Deschutes County Children & Families Commission, and Thanking her for her Service 9. Approval of Minutes: • Business Meeting: June 8 • Work Session: June 8 • Public Hearing on Comprehensive Plan: May 31 CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 10. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District Board of Commissioners' Business Meeting Agenda Monday, June 13, 2011 Page 2 of 7 Pages CONVENE AS THE GOVERNING BODY OF THE EXTENSION AND 4-H COUNTY SERVICE DISTRICT 11. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 12. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for Deschutes County 13. ADDITIONS TO THE AGENDA PLEASE NOTE: At any time during this meeting, an executive session could be called to address issues relating to ORS 192.660(2) (e), real property negotiations; ORS 192.660(2) (h), litigation; ORS 192.660(2)(d), labor negotiations; or ORS 192.660(2) (b), personnel issues. Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY. Please call (541) 388-6571 regarding alternative formats or for further information. FUTURE MEETINGS: (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572) Monday, June 13 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, June 15 10:30 a.m. Oregon Youth Challenge Graduation - Fairgrounds, Redmond 2:00 p.m. Administrative Work Session - could include executive session(s) - note later time Board of Commissioners' Business Meeting Agenda Monday, June 13, 2011 Page 3 of 7 Pages Friday, June 17 7:30 a.m. Chamber of Commerce Town Hall Breakfast - State of the County - Bend Golf & Country Club Wednesday, June 22 7:30 a.m. Legislative Update (conference call) 10:00 a.m. Board of Commissioners' Meeting - includes budget adoption 11:30 a.m. Central Oregon Visitors Association Luncheon - Riverhouse 2:00 p.m. Administrative Work Session - could include executive session(s) - note later time Monday, June 27 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, June 29 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, July 4 Most County Offices will be closed to observe Independence Day Wednesday, July 6 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, July 7 8:00 a.m. Regular Meeting with Sisters City Councilors - Sisters City Hall Monday, July 11 3:30 p.m. Public Safety Coordinating Council Meeting Board of Commissioners' Business Meeting Agenda Monday, June 13, 2011 Page 4 of 7 Pages Wednesday, July 13 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, July 14 7:00 a.m. Regular Meeting with the City of Redmond Council, Redmond City Hall Friday, July 15 - Tuesday, July 19 National Association of Counties Conference, Portland Wednesday, July 20 1:30 p.m. 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, July 21 4:00 p.m. Bend Metropolitan Planning Organization Meeting Monday 25 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, July 27 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, August I 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) 3:30 p.m. Public Safety Coordinating Council Meeting Board of Commissioners' Business Meeting Agenda Monday, June 13, 2011 Page 5 of 7 Pages Wednesday, August 3 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday August 8 - Tuesday, August 9 Association of Oregon Counties Regional Summit - Silverton Wednesday, August 10 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, August 15 10:00 a.m. Board of Commissioners' Meeting 12 noon Commissioners' Meting with Department Heads 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, August 17 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, August 18 4:00 p.m. Bend Metropolitan Planning Organization Meeting Monday, August 22 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday August 24 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) i Board of Commissioners' Business Meeting Agenda Monday, June 13, 2011 Page 6 of 7 Pages Monday, August 29 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, August 31 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY. Please call (541) 388-6571 regarding alternative formats or for further information. Board of Commissioners' Business Meeting Agenda Monday, June 13, 2011 Page 7 of 7 Pages v~J-ces co` BOARD OF COMMISSIONERS' MEETING o < REQUEST TO SPEAK Agenda Item of Interest: Art 1" Date: L3 sic Za( t Name Y(OW- ~141L~ Address 9 J 4 8 Phone #s `q ~ -3t2. IMS E-mail address hww tkv~f (A_,,l ao, co w~ ~In Favor ❑ Neutral/Undecided ❑ Opposed Submitting written documents as part of testimony? [eYes ❑ No If so, please give a copy to the Recording Secretary for the record. v~0-res C', a A BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Date: (3 a i Name Pmt McCla rj Address y W 6'R , S'✓ too 9tw, oko_~', Phone #s r4 [ -3&-% Zk4-- E-mail address 20"",n Favor ❑ Neutral/Undecided 1-1 Opposed Submitting written documents as part of testimony? ❑ Yes ❑ No If so, please give a copy to the Recording Secretary for the record. G~v-ces co` BOARD OF COMMISSIONERS' MEETING a < REQUEST TO SPEAK Agenda Item of Interest: -*5 5:4e, 3o3 J-kmsdn i~4 P,K Date: Name C_6rt s parka's ore t3 l l Address Lo X 0 Ali Go•~Q 9.`v4r br `Terms boh~ t C> P, q-1-1 co Phone#s (59t) 9-77-606_7 Cell ~'ii) °I23- 755, E-mail address c~svls . 0grkk'~Ns sfa}I- . or. v 1-1 In Favor a Neutral/Undecided ❑ Opposed Submitting written documents as part of testimony? F Yes F;TNo If so, please give a copy to the Recording Secretary for the record. J-res e uJ°jU~ 0`2-1 a < BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Name PAUL 0rwEY Date: ' -311 Address 15'3 g New v;,,V, 4,s~g G,sotJ n2 477ol Phone #s 5 y t- 3- 3 E-mail address 0 C IC ""y -C-- U _ ^J I. S. <a 1-1 In Favor F~ Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes r-] No If so, please give a copy to the Recording Secretary for the record. v~v-ces co` o Z{ BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: - Y Date: Name':: '2~ Address Phone #s ~ 7P E-mail address yr L if ,,t F, In Favor ❑ Neutral/Undecided M-Opposed Submitting written documents as part of testimony? F]Yes P No If so, please give a copy to the Recording Secretary for the record. J-Ma C, 00i; A BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Date: Name J aAa, Address ~-2, o 0 TMz ZZ5::j ~ Phone #s 5;~J~- 14D ~2M D E-mail address F] In Favor F-] Neutral/Undecided F/1 Opposed Submitting written documents as part of testimony? F] Yes ETNo' If so, please give a copy to the Recording Secretary for the record. G~J-ces co` 0 2{ BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: S7m t _CV ha (y\ L'y a'4 Date: 6 - l 3 - 20 C Name ~ k, i Address S~ a m d r n -716 Phone #s S-g l- (0,11- 2 q± 9 E-mail address S c ,_~L,/ - d _fV Perw+, In Favor Neutral/Undecided Opposed C, J Submitting written documents as part of testimony? F]Yes 2No new If so, please give a copy to the Recording Secretary for the record. v~v-res co` o A:Z{ BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: t:2 Date: kwlfV, CroSsMa ~I c Name )e.,~~ \ U Address \ 6V Phone #s `J ~ 1 - LA 7 D - t~;(FS-O 0 E-mail address U CC-0 - ' c,. ^ ~ C eux, In Favor Neutral/Undecided c Opposed Submitting written documents as part of testimony? F-] Yes ® No If so, please give a copy to the Recording Secretary for the record. ~~G~J-ces co`Z - o { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Date: Name 1-1eler, 1/j/Ihr Address 4 a L7 r Phone #s 6 z11 ~ 3 j? I" J / E-mail address F] In Favor ❑ Neutral/Undecided 91 Opposed Submitting written documents as part of testimony? Yes ~1o If so, please give a copy to the Recording Secretary for the record. ~G< `2 a { BOARD OF COMMISSIONERS' MEETING W REQUEST TO SPEAK Agenda Item of Interest: ":~C C a 3 Date: l ! Name1 k l --t) A. A A- m Address Z Z Zl,- 1 V`tl . Phone #s - 4-10 - "s C 6-7 E-mail address 6_v e c-aA (a Mac- C© M ❑ In Favor F-] Neutral/Undecided 12/opposed Submitting written documents as part of testimony? Yes F-] No If so, please give a copy to the Recording Secretary for the record. BRUCE W. WHITE, ATTORNEY, LLC June 10, 2011 Hand Delivered Board of County Commissioners 1300 NW Wall St., Suite 200 Bend, Oregon 97701 Subject: SP-07-462 and CU-07-102 for Surface Mining and Crushing Operations on Surface Mining Site #303 Please find enclosed Applicant's written materials in advance of Monday's hearing on the remand of the above-referenced land use permits. These materials consist of the following: • Memorandum of Bruce W. White and attached exhibits • Testimony of Pat McClain with attached exhibits 1-5 • Letter from Andrew Siemens of Siemens & Associate • Letter from Jerry Powell The Memorandum of Bruce White is arranged in order of the issues that were remanded back to the County and addresses legal issues associated with the remand. Similarly, the letter of Pat McClain is organized generally by topics that are implicated by the remand. The letter from Jerry Powell addresses his work in the field in defining the boundaries of the mining site and locating the processing spots on the property in the event the Board wishes to make a site visit. The letter of Andrew Siemens addresses issues related to fugitive dust emissions from the headwall. Following up on Commissioner Unger's inquiry about making a site visit, the applicant is willing to allow for site visits by individual Board members, but does not wish such a site visit to constitute a public meeting. Pursuant to MSHA mining regulations, a representative of Latham Excavation would need to be present for safety reasons, but would not otherwise communicate with the Board or explain the site. Sincerely, ,6 /L L L" • G4-,e-- Bruce W. White C. Latham Excavation Paul Dewey Dave Kanner Laurie Craghead Paul Blikstad P.O. BOX 1298 • BEND, OR - 97709 PHONE: (541) 382-2085 Analysis of Issues on Remand Mark Latham Excavation, Inc. SP-07-46/ CU-07-102 (Johnson Road Pit - Surface Mining Site 303) This memo analyzes the issues that were remanded by LUBA to the County. These are the issues that the County must address on remand. All other issues that were appealed and affirmed by LUBA or that could have been appealed and were not and that are not implicated by the remanded issues are not in play in the Board's consideration of the site plan and conditional use on remand. Those issued are as follows: (1) Whether Tumalo Tuff which overlies the Bend Pumice can be mined for sale under the 1990 ESEE; (2) Whether supplied screening is required to screen the Hoffman #1 residence from views of the mining site; (3) Whether supplied screening is required to screen Tumalo State Park and the pre-1990 residences across the Deschutes River from views of the mining site; (4) Compliance of the piles of top soil with the 1/4-mile setback; (5) Compliance with the incremental reclamation "requirement" in the ESEE's Program to Meet the Goal; (6) Compliance with air quality standards regarding the headwall; (7) Compliance with setbacks for the proposed northeast and southeast crushing sites; and (8) Compliance with screening requirements for the northeast and southeast crushing sites. These issues are taken up below in the order in which they appear above. I expect to supply a more bulleted version with references to helpful portions of the record at the hearing. Mining of Tumalo Tuff This issue involves whether the ESEE adopted by the Board in 1990 covers removal and sale of the Tumalo Tuff resource that overlies the Bend Pumice resource, which is the only resource specifically inventoried for the site. LUBA determined that the County's findings were inadequate to support the County's April 2009 decision to allow mining of the Tuff for sale. While LUBA indicated this issue could be resolved by conducting a new inventory and ESEE process specifically addressing the Tuff, it also left the door open for "a better explanation" for its determination that the Tuff, as well as the Pumice, could be mined under the existing inventory and ESEE determination for the site: "We do not mean to suggest that in all cases where a different, non-inventoried mineral is found at an inventoried mineral resource site that a proposal to mine that non-inventoried mineral will require an amended ESEE analysis. Mineral deposits are rarely uniform, and where incidental mining of a non-inventoried mineral resource is proposed, we see no impediment in Goal 5, OAR chapter 660, division 016 or elsewhere to a local government issuing a mining permit pursuant to its program to achieve the goal for that site that includes incidental mining of a non-inventoried resource that would otherwise not be entitled to Goal 5 protection. But the scope of protection for incidental mining of a non-inventoried mineral resource in the absence of a Goal 5 analysis of that resource must be sufficiently narrow, or the Goal 5 planning process loses all integrity. In our view, if mining of the inventoried resource requires removal of the non-inventoried resource, and the non-inventoried resource resembles the inventoried resource in economic use and value, the means of extraction and processing, and the type and intensity of impacts on pre-existing conflicting uses, then it is more likely that a local government can adopt a sustainable conclusion that the mining of that non- inventoried resource is incidental to mining of the inventoried resource, and therefore issue a permit for such mining in the absence of a new or amended Goal 5 analysis evaluating the non-inventoried resource. Stated in different terms, mining of an uninventoried resource can be accurately viewed as incidental to mining of an inventoried resource if the local government adopts a conclusion supported by the record that, had it known of the quality and quantity of the non- inventoried resource when it adopted the original ESEE analysis and program to meet the goal, the differences between inventoried and non-inventoried resources are sufficiently minimal in terms of extraction methods, conflicts, etc., that the local government would have chosen to balance the conflicts in the same way, and would have adopted the same program to achieve the goal. " (LUBA, p. 16.) LUBA also found that the quantity of an inventoried material set forth on the inventory did not preclude a mining operator from mining the full amount of the resource, even if, for example the real amount in the ground turned out to be two million cubic yards of material compared to an inventoried amount of 750,000 cubic years. (LUBA, p. 14.) Thus, in the absence of a time limitation, the impacts associated with duration of mining is not a factor to be considered. LUBA's primary concern was that in the absence of information about the extraction of the Tuff, the County's findings did not adequately address concerns that the ESEE may not have adequately accounted for issues related to the potential size of the headwall when viewed from Tumalo State Park and the amount of dust that might emanate from the headwall. (LUBA Decision, p. 20.) LUBA found unpersuasive the Board's comparison to the Program to Meet the 2 Goal for nearby sites 304 and 305/306, in particular because the Board had imposed specific, additional site-specific ESEE conditions for those sites where none been specified for the subject site (Site 303). Latham Response on Remand: Latham believes that consistent with LUBA's decision, the County can make findings that the ESEE is consistent with incidental mining of the Tumalo Tuff. LUBA correctly noted that the Tuff must necessarily be excavated and removed in order to expose and excavate the Bend Pumice and that the general nature of the excavation activities and their impacts was the same or similar to the impacts of mining the Bend Pumice. The issue for LUBA was the headwall - both visually, particularly as it related to the Park and as a source of dust. However, the generic nature of the ESEE gives no basis for the Board to have made a different decision than if the Tuff had been explicitly considered for mining. The Board's deliberations and findings in this and the ESEEs for the other nearby mining sites did not give any consideration as to what form the excavation might take nor how much material the cut might expose. (See ESEES for Site 303, LUBA Record, p. 1368; Site 304, 1556; Site 305/306, 1570.) If the Board had been particularly concerned about the landform that might be left by mining at Site 303, and its impact on the view, it would have been expected to have done something more than parrot the same generic, non-prescriptive language of concern about visual impacts it expressed in Condition No. 23(b) to pay "particular attention to screening from Tumalo State Park or the eastern, northeastern and southeastern boundaries." That exact same language is found in the visual impacts finding for Site 304 (Condition 23(b) and for Site 305/306 (Condition 23(b)). Sites 304 and 305/306 were inventoried with considerably less resource than was Site 303 (225,000 cubic yards for Site 304 and 125,000 cubic yards for Site 305/306). Site 303 had 3 times as much resource as Site 304 and 5 times as much resource as Site 305/306 and yet the Board applied the same general ESEE condition language with regard to visual impacts for each of these sites. Furthermore, the Board's decision resulted in applying the same basic level of scenic protection found in the ESEE's for virtually all the various ESEEs - the generic standards of the visual screening criteria of DCC 18.52.110(B). In the absence of specific information about how the resource might be excavated - because there was none of the information that we now know about the stratigraphy of the site, the Board had absolutely no basis for making any judgments whatsoever about the nature of the headwall or landform that might result if more material than just that assumed to be encompassed by the pumice resource were to be excavated. For all the Board knew, the resource might have been located primarily away from the ridge area to the south, which might have resulted in more of a hole in the ground than a side-cut excavation that had potential implications for views from the park and river. Contrast this with the very specific additional conditions that were attached to Sites 304 and 305/306. Site 304 had two specific conditions that went beyond the generic ESEE conditions of approval: a prohibition on crushing and a prohibition on accessing the site at any point other than the northern boundary of the property. The prohibition on crushing was based upon the site being in close proximity to Tumalo State Park. This was a relationship that the Board could clearly see from the facts: how far away the site was from the park and the river. Similarly, the site specific condition relating to where access could be taken at the property responded to a 3 physical relationship that was evident to the Board: where the property was in relationship to surrounding streets. Again, with regard to Site 303/306, the site-specific conditions directly related to observable physical relationships. In its condition 23 (d), the Board placed a limit on blasting, realizing that the mine butted directly up against a residential subdivision with smaller lots (as opposed to the larger EFU-zoned lots that abutted Site 303). In addition, again in responding to the observably close proximity of mining to the Tumalo Rim subdivision the Board placed a specific time limit for excavation of one year. The facts are much more developed today than they were in 1990 a nd therefore i t is not appropriate to import the specifics of the impact arguments made by opponents today regarding mining of the Tuff as a measure of what the Board would have decided back in 1990. Otherwise, it would be appropriate for the Board to make findings related to whether the Tuff would necessarily be restored to the hillside or to what degree the site can actually be seen from the Park. It certainly cannot be concluded from this record that allowing the Tuff to be mined will necessarily result in an increased headwall. Depending upon what reclamation plan for the site is approved, the same disturbance of the land could easily result from a decision to allow only mining of the pumice, than if the Tuff is also allowed to be mined. The same kinds of considerations apply to issues related to dust from the headwall. The Board adopted the same generic findings related to dust for the subject site as it did for Sites 304 and 305/306, despite the much larger amount of material inventoried for Site 303. The Board had no basis to assess how much of a headwall might be left and therefore there is no basis to say that this kind of impact would even been contemplated by the Board in 1990. LUBA's determination that the site is not restricted to excavation of the amount of material also favors the applicant's position. LUBA would have had no problem if the site turned out to have 2 million cubic yards of pumice. What is the difference between that and an extra amount of material that includes much of the same kind of material as that that was inventoried? The Tuff was produced from the same volcanic eruption as the Pumice and has inclusions of the Pumice in it that can be used and marketed for the same purposes as the Pumice, at it relates to horticultural uses. In the alternative or as an additional basis for allowing the Tuff to be mined, the Board might find that the resource really isn't a different resource at all, but that the Tuff is simply an extension of the Pumice and should be treated the same as the pumice (in the nature of sand and gravel in a river-rock site). Given the foregoing, the Board certainly has a basis for making findings that will address LUBA's concerns. Finally, as Pat McClain mentions in his testimony, the Board should be concerned about the precedent a decision to not allow mining the Tuff could set and the potential economic consequences for such a decision. The Tumalo Tuff is widely used as construction fill in public, commercial and residential construction. None of the sites from which that material is currently extracted in the Bend area have that material inventoried. (See Ordinance 90-025 (Inventory Ordinance), Exhibit G, Sites 282/283 (then Crown Pacific, now Taylor Northwest), LUBA Record, p. 1473; Site 381 (then Pieratt Brothers, now Able), 1474, See also Site 283 ESEE, LUBA Record, p. 1543; and Site 381 ESEE, LUBA Record, p. The impacts on potentially 4 shutting that material out of the construction market could potentially have drastic consequences on the cost of public, commercial and residential construction, particularly if fill material must be trucked in from remote areas. County staff's issues matrix seems to indicate that the Board previously decided that the headwall was not covered by the ESEE. This conclusion is not supported by the terms of the County's prior decision. Nothing in the discussion and findings by the Board regarding the scope of the ESEE (on pages 14-15 of its 2009 decision) addresses the headwall separately from the site itself. To the contrary, the Board's discussion in the body of its 2009 decision noted the lack of anything in the 1990 ESEE findings addressing the nature of the actual excavation that would be necessary to mine the and the lack of any information regarding the nature of the reclamation that would be required. In addition, in Condition 23, the Board's decision expressly allowed the headwall to be mined in the event that the applicant were able to demonstrate that dust from the headwall could be controlled on-site. The Board could not have allowed for the possibility of mining the headwall if it had already decided that mining the headwall was contrary to the ESEE. Staff may have picked up a statement by the Board on Page 2 of its decision that indicates that mining the headwall was not within the scope of the ESEE, but that language appears to be an inadvertent mistake, given the way the balance of the decision addresses this issue, and it should be treated as such. Visual Protection of Hoffman #1 Residence (Site Plan Issue) This issue involves whether the applicant must be required to screen the Hoffman 41 residence from views of the mining site. The Hoffman #1 residence (a pre-1990 residence) is located in a depression next to the Deschutes River. Views of the mining site are obscured by an intervening ridge between the Hoffman residence and the mining site on the south end of the Hoffman property. In its 2009 decision, the Board determined that supplied screening to protect the Hoffman residence was not required. LUBA determined that the scope of noise and dust- sensitive uses was the area of the home site and not the entire property. However, LUBA determined that the County's findings/ interpretation of the screening requirements were inadequate to support a finding that screening should not be required. Latham Response on Reman& Latham believes that given LUBA's pointed analysis of the language of the topographical exception to supplied screening and the actual language of that exception ("topography," without reference to whether the topographical feature was manmade or not), no screening can be required to protect the Hoffman #1 house, because the topography is such that supplied screening on the applicant's property would be obscured and made ineffectual by the intervening ridge and by the fact that the only portion of the site that could possibly be seen from the Hoffman #1 residence (the top of the headwall) is located at such a great distance from ground level that no screening could ever practically obscure that aspect of the excavation. The Hoffmans had argued in 2009 and before that the vantage point was the property line, not the area of the house and therefore they did not provide information on what the views of the site from their house were. Therefore, there is little in the record as to what the Hoffmans can 5 actually see from the house, and without access to the property, applicant's information on actual views, if any, from the Hoffman #1 dwelling is limited. As Pat McClain's testimony indicates, it appears that any view of the headwall from inside the Hoffman #1 dwelling would be oblique at best. Pictures of the Hoffman #1 house indicate that it is surrounded by vegetation, so it would not appear that there would be views of the headwall from the area immediately surrounding the house and the presence of the horse barn between the house and the site would also screen any of the headwall lying below about 3380 feet. In the final analysis, the actual views that the Hoffmans may have from their main house would not be relevant because due to topography, those portions of the site that are potentially visible from the house cannot effectively be screened. The staff matrix states that either or both DCC 18.52.11 0(13)(6)(b) or (c) would apply. Latham concurs, provided staff is referring to conditions related to the headwall itself or some physical condition on the applicant's property (and not the ridge on the Hoffman property). Following from LUBA's discussion of this issue, Latham believes the better exception to ground the Board's findings on would be the one found at 18.52.110(B)(6)(b), because as LUBA noted, screening planted at ground level would be obscured by the intervening ridge on the Hoffman property and in any event couldn't reach a height to obscured the highest reaches of the headwall.l Given the topography there clearly is no degree to which any screening would be in any way effective to screen the upper reaches of the headwall from the Hoffman #1 house (if in fact the house has views of the headwall). Visual Protection of Upper Elevation of Tumalo State Park and Pre-1990 Residences Across River This issue involves whether the applicant must be required to screen the mine from view from Tumalo State Park and from pre-1990 houses located near Tumalo State Park across the river. The County did not require that screening be supplied. LUBA found the County's reasoning and findings in interpreting the screening requirements to be confusing and illogical and remanded. The mining site is screened from most of the park and the areas most heavily used along the river and in the campgrounds by the ridge that runs along the river (the river flows in a canyon of sorts) and by a ridge extending along the south end of the Hoffman property and the extensive intervening vegetation, most of which lies on Tumalo State Park property. It is only at the higher elevations on the small nob2 above the campground that the mining site becomes plainly visible to park users (and presumably to any nearby pre-1990 houses that adjoin the upper levels of the park).' I This same rationale would apply to the homes on Ridgewood Drive, to the extent they are in the impact area. 2 From topo maps, the elevation of the top of the nob appears to be 3,320'. (See Exhibit 1, Map 1. A topo map covering the pit site is included as Exhibit 1, Map 2.) 3 There are four houses across the river north of O.B. Riley Road that have elevated views of the site. Those houses are listed in Table 1, attached hereto and shown on the attached exhibits. From a topo map of the area, those houses appear to be at an elevation of 3,340 feet or about 20-35 feet above the existing pit floor in elevation. Two of those houses clearly do not qualify for protection. The Massey house falls outside the '/z-mile impact area that surrounds the site (corresponds with the SMIA zone) and therefore lies outside the zone of protection afforded by the SM 6 Latham Response on Remand.- Latham believes that the preferable approach is to pick up on LUBA's cue from statements analyzing the visual protection for the Hoffman #1 residence and the applicability/ interpretation of topographical exception to screening to find that the topographical exception is applicable in situations such as this even though the disturbance to the landscape is manmade. (LUBA, p. 35, n. 21.) In this case, it is clear that the relative height of the Park nob and the two adjacent pre- 1990 residences versus the mining site and the topography of the mining site itself - the heights of the excavation, gives rise to topographical constraints in providing effective screening of the mining site. The language of the screening performance standard and the exceptions to that standard is convoluted and encourages circular reasoning that could make the exceptions almost never applicable. For example, the qualifier "to the extent" in the screening performance standard can be read to indicate that so long as supplied screening is effective to some extent, it must be supplied, even when it would largely be ineffective. However, in the case of supplied screening by berms, there is no performance standard to measure to what degree supplied screening must obscure the mining site; the performance standard at DCC 18.52.11 0(13)(5)(b) states no height for discharging the screening responsibility. In light of this, the Board should adopt a common sense reading of the screening standard: If supplied screening cannot totally obscure the offensive view and an exception is applicable, then no screening should be required. This would be consistent with Goal 5's requirement that performance standards must be clear and objective. Applying the maxim of statutory construction that words should not be interpreted to make any portion of a law irrelevant, Latham's position is that once an exception applies, no screening should be required because the language of DCC 18.52.110(B)(6) states that the site must be screened to meet the standards of DCC 18.52.110(B)(2) "unless one of the exceptions of DCC 18.52.110(B)(6) applies". Because one of the exceptions applies, in accordance with the language of DCC 18.52.110(B)(1) the screening standard of DCC 18.52.110(B)(2) cannot apply. This interpretation would avoid the meaningless exercise of supplying screening that in reality has little effect in attempting to screen a site such as the Latham site. If the Board believes the standard should be interpreted to require screening to some extent, even though it would not be totally effective, then the applicant proposes to discharge that responsibility by constructing a 12-foot high berm along the eastern edge of the mining area, starting at the northeast corner of the mining area and extending across the flat area, with retained vegetative screening within 50 feet of the mining boundary going up the hill from there visual protection zoning regulations. See Ordinance 90-025, Finding 31, Page 10. The pre-1990 house on the Aller property falls outside of the 'h mile impact area; that house is being replaced by a post-1990 house that would not be entitled to protection. Whether the Klein house (the red house in pictures of houses overlooking the site) qualify is debatable, because the house appears to just touch the SMIA zone (see Table 1, Exhibit 3). The Scolman house predates 1990 and clearly falls within the impact area delineated by the SMIA zone. Although the Scolman house has a 2002 addition and a SMIA approval for that addition, that doesn't appear to convert the dwelling to a post- 1990 house. For the purposes of this analysis we will treat both the Scolman and Kliene houses as pre-1990 houses that require protection. 7 in accordance with retained screening requirements.4 The berm would be hydro-seeded with a mixture of mulch and native grass seed, such as rye grass, in accordance with DOGAMI best management practices. An offset opening would allow the passage of vehicular traffic across the berm. Per OAR 340-035-035(5)(g) or (h), any noise regulation attendant to operating equipment necessary to build that berm (involving an excavator and a dump truck) would be exempt from noise regulations. Top soil Piles within '/4-Mile Setbacks (Site Plan Issue) This issue involves whether the piles of topsoil on the property, most of which pre-date the applicant's ownership of the site and are now vegetated, must meet the '/4-mile setbacks for "storage of mineral and aggregate" (shown on the site plan by radiused arcs centered on the nearby pre-1990 dwellings). As noted in Pat McClain's testimony, some of those piles are within the'/4-mile setback from nearby pre-1990 houses. The County found in its 2009 decision that the setbacks did not apply to such top soil piles and accordingly did not require that they be moved or make findings for an exception to the setback. LUBA found that the setback did apply to these piles and required the piles to comply with setbacks. Latham Response on Reman& Latham proposes to move the topsoil pile that it brought into the site that is closest to the Hoffman property in order to come into compliance. (See Exhibit 4 to Pat McClain's testimony.) With regard to the piles of topsoil that were placed on site by Cascade Pumice (see Exhibit 4 to Pat McClain's testimony) upon Cascade Pumice's initial excavation of the site, Latham proposes to leave such piles stored where they are under the exception criteria of DCC 18.52.090(B)(1) and (2). The small size of the parcel and the proximity of conflicting protected residential uses allows limited space outside the '/4-mile setbacks for placing such top soil piles in a manner that would not interfere with mining operations elsewhere on the site or that would not conflict with mandates to retain existing screening vegetation (to the west of the mining area). We believe that the reference to parcel size as a listed factor in DCC 18.52.090(B)(1) makes it a legitimate consideration to consider the physical constraints of the site in being able to meet the setback criteria. With respect to "existing vegetation," the need to maintain the existing vegetation to the west of the pit puts that area off-limits. The existing vegetation on the piles themselves, as shown in Exhibit IV to Pat McClain's testimony, is another justification for leaving the piles where they lie. Leaving the piles where they are will have the least impact in terms of noise and dust for the simple reason that moving them to a location, possible, outside the '/4-mile setbacks 4 It should be understood that retention of existing natural screening would apply only to the perimeter of the mining footprint that is the subject of this application. Should the applicant or a subsequent property owner seek to expand the mining footprint on the property to a point beyond the retained vegetative screening, the screening issue would be addressed without regard to the screening required on the more limited footprint. 8 would involve the noise and dust associated with scooping up the piles and transporting them to a different location. For new piles, applicant would either locate them outside the 1/4-mile setbacks in the center area of the pit or would propose to locate them within the 1/4 mile setback of the houses to the south, pursuant to the reasoning adopted by the Board in its 2009 decision in this case (unchallenged by the Hoffmans at LUBA) to authorize stockpiles within that setback. Incremental Reclamation (Site Plan Issue) This issue relates to whether the County must address the incremental reclamation "requirement" of the Site 303 ESEE's Program to Meet the Goal found at Finding 23(e). The Board found that reclamation was within DOGMAI's purview and found the provision couldn't be applied by the County, given the explicit reference in Condition/ Finding 23(e) to DOGAMI approval of such a plan. LUBA found that the County could not completely ignore this provision and could address this issue by a condition of approval that explicitly delegate consideration of incremental reclamation to DOGAMI. Latham Response on Remand: ESEE Condition 23(e) reads as follows: "Excavation shall be limited to five acres with ongoing incremental reclamation (subject to DOGAMI review and approval)." That condition is partially implemented through DCC 18.52.110(K), which addresses the 5-acre extraction size limitation. The section specifies that the 5-acre limitation does not apply to roads, equipment storage areas, processing sites, etc. Basically, the only areas that are subject to the 5- acre limitation are the mineral extraction areas. The Hoffmans argued to LUBA that the County's decision failed to ensure that the 5-acre limitation would be adhered to. However, in light of the fact that Condition of Approval 8 of the County's approval specifically limited the applicant's extraction area to 5 acres, LUBA found this aspect of the Hoffman's appeal had no merit. Accordingly, the issue of the applicant's compliance with the 5-acre limitation is not an issue on remand. The only issue is the "ongoing incremental reclamation" requirement of ESEE Condition 23(e). It appears that this requirement has not been interpreted by the County prior to this case. Except for the ultimate conclusion the Board drew on this issue in its 2009 decision, Latham believes the Board's findings are as apt today as they were then in expressing the uncertainties and the lack of authority and technical competence the County has in areas involving reclamation. The phrase is no less vague and uninformative today than it was in 2009. In addition, there are the practical realities in a regulatory arena where DOGAMI holds the only regulatory authority in an approval process that involves only the applicant and DOGAMI. See, e.g., ORS 517.780. The County can provide comments during the reclamation process (see OAR 632-030-0030(1)(d)(B)), but it has no ability to dictate what reclamation activities or techniques can be required or when. Those decisions are exclusively within the purview of DOGAMI. The applicant has the right to change its reclamation plan during the life of the mining operation as part of a plan amendment. See, e.g., OAR 632-030-0035. In this case, DOGAMI has specifically stated that a proposal to change from the plan's current final slope of 1 %2 to 1 to a steeper slope could be changed and wouldn't necessarily require even a formal reclamation plan amendment. LUBA Record, p. 723. Nothing in the County's ordinance would preclude or override an applicant's ability to seek such a reclamation plan amendment. (From reviewing the reclamation standard relating the vertical walls, it appears that if the slope is determined to be stable by a licensed geo-tech, the option of going to a vertical headwall is all but allowed. OAR 632-030-0027(1)(c)5.) In light of this regulatory context, any response by the County other than to write a condition defer this issue of incremental reclamation to DOGAMI would be entirely inappropriate. Latham believes that consistent with LUBA's conclusion, an appropriate condition of approval would read as follows: "Applicant shall 'be required to engage in incremental reclamation if deemed practical by DOGAMI and subject to DOGAMI's exclusive review and approval." Air Quality (Site Plan Issue) Latham appealed the County's application of the DEQ fugitive dust emission standards found at OAR 340-208-0210(2), arguing that the County's conclusion that the applicant had not demonstrated that the headwall could not be mined further without violating the fugitive dust emission standard went beyond the requirement that the applicant take "reasonable precaution" to avoid particulate matter from becoming airborne. Specifically, Latham argued that the standard was not one that required a demonstration of success, but only that "reasonable precautions" were being employed. LUBA agreed and remanded the County's decision to review this issue under the proper interpretation of the fugitive dust standard. Latham Response: Latham believes that the scope of the remand on this air quality issue is limited to addressing the air quality issues as they relate to the headwall. The other aspects of applicant's compliance with air quality regulations were resolved in the LUBA appeal. From the matrix prepared by staff, this appears to be staff's position as well. When the case was before the Board in 2009, the applicant did not have a complete opportunity to address claims by the opponents that the headwall produced dust. Due to the lateness of the hour and a somewhat confusing discussion of the hearing schedule, Applicant's counsel 5 OAR 632-030-0027(1)(c) allows a slope steeper than 1 '/2 to 1 provided such steeper slopes are consistent with the approved subsequent beneficial use. It is hard to imagine that a vertical wall that was certified as being stable would not be consistent with most any use, provided that there were adequate setbacks from the vertical face. The size of the property would provide ample opportunity for setbacks. 10 misunderstood what its rebuttal rights were. Given that this is a de novo hearing, applicant can introduce such information now to give a complete view of issues related to dust emissions and the headwall area. As stated in Pat McClain's testimony, the issue of dust from the headwall has been overblown. Clearly, there were areas associated with the headwall that produced dust, principally the sloped area at the southwest corner of the headwall (shown on May 20, 2008 Exhibit Map _ as being mulched) and the bermed area atop the headwall. However, as stated in Mr. McClain's June 10, 2011 testimony and in the June 9, 2011 letter from applicant's geotechnical expert Andrew Siemens, the if certain precautions are taken, the headwall itself is not susceptible to producing dust because of the nature of the material when it is intact (as opposed to being excavated and then stored in piles) and the fact that it readily forms a crust from exposure to wind and water. In his testimony, Mr. Siemens suggests that the crust can be induced to form immediately by wetting down the newly exposed material. This measure retains its effectiveness because the vertical surfaces are not subject to mechanical or other disturbance that would break the crust down. The efficacy of the crust as a dust control measure is evidenced by the fact that excavation marks in the headwall have retained their shape for years, and in the case of some headwalls in the area, decades. Use of water to control dust emissions is clearly viewed by the DEQ fugitive dust standard as a "reasonable precaution," and therefore it is clear that this method satisfies the approval standard. With regard to control of dust emitting from the earthen berm atop the headwall, there are reasonable precautions available to applicant to address those situations as well. Sloped areas adjacent to the headwall can be mulched as was done in May 2008. Any earthen berm atop the headwall can be hydro-seeded with mulch and/or seeded with native vegetation. At this time, the berm atop the headwall appears to have become vegetated and no further stabilization appears necessary. The applicant also has the option of reconfiguring the top of the headwall to eliminate the berm, if desirable by cutting a shelf across the headwall and respositioning the berm. These measures are consistent with and complementary to Latham's dust mitigation program that was approved by the Board in its 2009 decision for those areas other than the headwall. In light of these dust control measures, there is no reasonable argument for taking the position that as a "reasonable precaution" further mining of the headwall must be avoided. With regard to the other potentially applicable DEQ air quality standards, the visible air contamination visibility standard cannot be applied to such a diffuse source as a headwall. By its terms, that standard only applies to sources with a well defined "exhaust stack" or point of release and therefore does not apply to the headwall. OAR 340-208-0110. (See LUBA Record, p. 944. With regard to particle fallout standard of OAR 340-208-450, DEQ enforces this provision through its own Air Contaminant Discharge Permits, as a condition on the grant of such a permit. The applicant has two such permits, one for the pumice crusher and one for the rock crusher. (LUBA Record, p. 596 (pumice crusher), LUBA Record, p. 581 (rock crusher). As the statewide agency responsible for implementing its program, the DEQ has the sole authority to determine whether a violation exists and what the appropriate response should be. , 11 Setbacks for Northeast and Southeast Processing Sites (Site Plan Issue and Conditional Use Issue This issue relates to the approval of two additional sites for crushing mined material. The relevant approval criterion is found at DCC 18.52.090(B). The applicant proposed three sites on its site plan. In its 2009 decision, the Board approved the southwest site but denied the northeast and southeast additional sites. The Board rejected those sites in findings made under the setback provisions of the code. Applicant appealed the Board's denial of the additional sites on the basis that the applicant met the required 1/4-mile setbacks and that the County's reasons for denying those sites were addressed to issues not reflected in the County's setback requirements. On appeal, the County argued that the stated setbacks were a minimum and allowed for imposition of setbacks greater than the County's minimums. LUBA agreed with the applicant and remanded the Board's denial of the processing sites on the issue of compliance with the setback requirements. Latham Response to Remand: LUBA's interpretation of the setback criteria for processing sites leaves the County no choice but to find that the northeast and southeast processing sites comply with the applicable approval criteria. It appears from the matrix of issues prepared by staff that staff agrees with the applicant's contention. This leaves only the application of the remaining conditional use criteria under DCC 18.52.140(A). (See below for application of the standards of that section.) Northeast and Southeast Processing Sites - Compliance with Other Criteria (Conditional Use Issue This issue also relates to the Board's denial of the southeast and northeast crushing sites. The relevant approval criteria are found at DCC 18.52.140(A)(1) and (2). In its 2009 decision, the Board's found that all three processing sites met the first conditional use criterion for approval - compliance with noise standards (see DCC 18.52.140(A)(1)). However, following up on its apparent finding that the northeast and southeast sites did not meet the required setbacks, the decision then failed to consider whether the approval standards of DCC 18.52.140(A)(2) had been met. The applicant appealed that denial on the basis that the required approval standards had not been applied in the Board's decision. LUBA agreed with the applicant's position and remanded the decision. Latham Response to Remand: On remand, the Board must apply the standards of both DCC 18.52.140(A)(1) and (A)(2). For the reasons set forth in Latham's previous submittals, as confirmed by the Board in its findings on noise, the first prong is met. With regard to DCC 18.52.140(A)(1), Hoffmans attempted to challenge application of the noise standards in their 7c" assignment of error, but these challenges 12 were not sustained. Accordingly, the Board has no choice but to follow its lead from its own 2009 decision and make findings demonstrating compliance with this criterion.6 With regard to DCC 18.52.140(A)(2), it is a virtual certainty that a crusher will remain on site for longer than 60 days in an 18-month period Accordingly, the processing equipment must be screened from view of protected conflicting uses, to the extent required by DCC 18.52.110(B). The processing equipment will consistent of screening and crushing equipment and a wash plant. (See McClain testimony, p. 10.) Applicant proposes to employ berms of at least 15 feet in height to screen the processing equipment. The surface of the berms would be stabilized by hydroseeding with a mixture of mulch and native grass seed, such as rye grass (as was planted on the top soil piles). The exact placement and height of the berms would not be determined until the time the processing equipment is set up, except that the berm would be required to be located between the processing equipment and the protected houses and the park nob. With respect to the southwest processing site, the Board's 2009 approval allowed for the processing equipment to be screened buy being sighted behind the 20-foot tall tuff stockpile in the center of the pit. This finding was not challenged on appeal. To the extent diminution of the stock pile eliminates such visual screening, applicant would agree to a berm sufficient to screen the crushing equipment from the protected houses and the park nob. Dated this 10th day of June, 2011. wW OZ,4~z Bruce W. White G Using the rock crusher at the northeast crushing site requires that applicant either construct a 5' berm between the processing site and the Hoffman #2 dwelling along the northern boundary or depress the crushing site by 5 feet. (See April 15, 2008 noise report of Kerrie Standlee, LUBA Record, p. 920.) Applicant will agree to such a limitation as a condition of approval. Applicant would agree to a condition of approval that any berm constructed to fulfill this requirement would be hyro-seeded with a mixture of mulch and native grass seed, such as rye grass. 13 r y 3 0 ; `J f it i ? ao 30 Q 3 0 - IQ j _ (D / a COUCH U log MARKET RD 329 i II i ~ i II O w i O _ _ ii , GpaP' °o II 34001 II i 4891 I / II / I i, 5 25 • I II PINEHUR ROAD 3323-_ n 3353 I _ 11 ~j / a O II ~ G ve Pit ; u n ~ - Jlt ~ u /I / II 20 °o ~aw Gravel 4890 P tVEHUR T• ROAD 249 Pit Yl -I• C.. 3381 II u V i y I •~A. \h II \!i1X~ Cind r Tumalo 31' 00 N O / . ❑ (SM 3182) O ~ ~ 3400 ~ N D x Pit 35 4889 i / / Y \ ~ elo X o 3µO0 / 3k00 / o PI i / Cind ~g3g/ R Pit X/ / G _ u' II hi S. 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RILEY RDAD I DO'DOb n Z999 OZ'L69 =T77, 1i c ~ ~ ~n \ rte, uy rn ao e Or d P J I 011 00 oL, O O d N ~7 o p T O O ° 6L' OL DO'9Z4 00' ON 00'09 e6. n O U C n a ~ N O CW*-4 09 96 '1, B ¢ a s~r,~ ` ~ ' op r d ` I I I ~o r r •e.o I ~ i T a) 30 cu 0 w w. x w a) m F-- 0 N X W a) s cc F- 0 M L X W i4, Testimony of Pat McClain On Remand of Johnson Road Pit Site Plan - Site 303 June 10, 2011 I am making this testimony as a part owner of Latham Excavation, which is the applicant for site plan approval and conditional use approval to allow for some modifications to the existing pumice removal operation at the Johnson Road pit and to allow crushing at the site. Our attorney will be providing legal argument to supplement this factual testimony. 1. Introduction A. Nature of Our Business I would first like to address the nature of Latham Excavation's business. We are a locally owned excavation company. Prior to buying the mining site from Cascade Pumice, our business was focused almost exclusively on excavating construction sites. Our acquisition of the Johnson Road pit allowed us to diversify so that we could provide construction fill materials to our customers and also provided us with a new market to supply pumice materials to pumice block construction companies and to horticultural supply companies. Most of our pumice material is sent out of the area to companies in the Willamette Valley or to the Seattle area. This particular pumice material is a rare commodity and is highly valued. Our company now employs 26 people full time. We have been affected by the economic downturn just as everybody else connected with the real estate or construction industry has been. However, the pumice supply portion of our business has been less affected and it has helped us to ride out the economic downturn. The pumice mine represents an opportunity for us to bring added revenue into the region for a product that originates here in Central Oregon. Our supply of pumice is regarded as being one of the best. As our geotechnical expert Andrew Siemens stated in an assessment of the resource for us soon after we bought the pit, the Bend Pumice is an excellent resource that should be "guarded jealously." (See LUBA Record, p. 803.) Like all businesses, our mining business is one that must be profitable to operate. Cascade Pumice sold us the site in part because it was no longer profitable for them to operate the site. The cost of diesel had gone up, so the cost of mining a material that lay deeply buried beneath the earth became less profitable. In addition, their operations required that the pumice be trucked off-site for processing (screening and crushing) at their industrial site in Deschutes Junction. They had no developed market for the Tumalo Tuff that overlay the Bend Pumice and no way to capitalize on the value of that resource, and they would have had to move the Tuff pile back into the hole left by excavation. It was easier for them to sell out of the site than to continue to operate it. Our ability to operate the site profitably at a time when diesel costs are increasing requires that we have a short travel distance from excavation to processing equipment for processing the pumice and that we be able to receive value for the Tumalo Tuff that overlies the Bend Pumice instead of expending resources to move piles of that resource 1 4 around the pit and then restore it to the site. It is to cut down on our transport costs that we have proposed three processing sites on site, so that as the mining areas shift, we can relocate our processing equipment to be as near as possible to the area the material is being excavated. As an excavation company operating in the local construction market, we have a ready market for the Tumalo Tuff material. We have been mining the Bend Pumice resource at the Able pit (formerly known as the Pieratt Brothers pit) near Deschutes River Woods for almost the last three years because we have been able to crush at that site without incurring transport costs while we awaited approval of crushing at this site. Although the pumice resource at the two sites is essentially the same, the pumice at the Johnson Road pit is preferable because it is dryer and thus easier to crush (doesn't gum up the crusher). We are anxious to get back into the Johnson Road site and to continue mining there. B. Site Visit We would encourage the Board to make a site visit to the site to better familiarize themselves with the site and how it relates to its surroundings. We would be happy to arrange for individual Board members to visit the site at times that would accommodate the Board members' schedules. We have had the three processing sites located by survey and staked as well as the perimeter of the mining area that will help define the site. (See letter from surveyor Jerry Powell. See also Exhibit 1A, showing staking of the eastern mining perimeter.) We are required by Mine Safety and Health Administration (MSHA) regulations to have a representative of the mining company on site to provide for the safety of non-mining personnel and would propose to have our safety officer Levi McClain accompany Board members for purposes of ensuring safety ( but not for the purposes of explaining the site or otherwise communicating to the Board members). II. Response to Remand Issues A. Chanees/ Clarifications to Proposal in Response to the Remand In response to the remand, Latham Excavation proposes to make the following changes/ clarifications to its site plan proposal: • To remove the topsoil pile closest to the Hoffman property that falls within the %-mile setback from the Hoffman #1 residence (pre-1990 residence near the river). • To leave the topsoil piles originally removed by Cascade Pumice that lie within % mile of the Todd residence under an exception allowed by the code and to allow for an exception, as needed for future topsoil and stock piles in that area as needed. 2 K • For the purposes of this mining application, to add a 12-foot high berm for approximately 200 feet along the eastern edge of the mining area to screen a portion of the excavated area from view of protected residences across the river and a condition of approval to retain existing vegetation on the eastern shoulder of the pit as it ascends the slope to screen protected residences and park sites to the east. The berm would allow for vehicle passage by being made up of two overlapping offset segments. • To add to our menu of dust mitigation measures a requirement to apply water to the headwall while it is excavated to form the crust that prevents wind erosion of the headwall faces. • To specify that the berms that would screen the crushing sites would be at least 15 feet in height, with final positions and heights to be determined in the field upon establishment of crushing sites. Berms to be hydro-seeded with a mix of mulch and native grass, such as rye grass. B. The Nature of the Mineral Materials We are informed that one of the issues that LUBA remanded the County's approval on was the issue of whether the 1990 ESEE covered excavation and removal from the site of the Tumalo Tuff that overlies the Bend Pumice. The Bend Pumice was inventoried and the Tumalo Tuff was not. It was the Bend Pumice that Cascade Pumice was after when it identified this site as a mining site during the County's mineral and aggregate Goal 5 process in the late 1980s. As we explained in our previous submittals, the Bend Pumice is overlain by the Tumalo Tuff. The top elevation of the Bend Pumice at about 3,338 - 3,345 feet according to our surveyor. The Tumalo Tuff lies above that in a band of about 120 feet deep below a basalt cap layer. (See Siemens Stratigraphy, LUBA Record p. 822). The top elevation we are proposing to mine lies about 15 vertical feet below that basalt cap layer at about elevation 3410, according to the site plan map. As our geotech Andy Siemens has described in previous submittals, the Tumalo Tuff and the Bend Pumice originated from the same volcanic eruption, but the nature of the Tuff was that it was part of the volcanic ash and it fell to earth on top of a layer of pumice that became known as the Bend Pumice. (LUBA Record, p. 800.) This is consistent with DOGAMI's white paper on the Bend Pumice. (LUBA Record, p. 796 and 3059.) As the DOGAMI white paper indicates, there is no erosion on the top layer of the Bend Pumice, so it is clear that the two strata were deposited in quick succession. (LUBA Record, p. 796, 3059.) From a visual inspection of the two mineral units, it is clear that there are inclusions of the Pumice within the Tuff. (See Exhibits 1AA, 11, 1K, and 1L.) Andy Siemens has indicated that these inclusions make up as much as 30% of the total of the Tuff by weight. (See LUBA Record, p. 870.) We know there is a 3 A market for off-white pumice material for use in horticultural products, as demonstrated by the yellowish pumice product produced in Klamath County, and we intend to go after that market. The importance of the Tumalo Tuff as a construction material can be demonstrated by where it has been used: in the construction of the Bend Parkway (from the Pieratt Brothers pit); for various commercial buildings in Bend and in commercial buildings in Redmond, such as the H.D. Fowler building and by numerous residential builders in Bend such as Sun Forest Construction and Hayden Homes. (See April 15, 2008 testimony of Cougar Caverhill, LUBA Record, p. 660.) When the Summit High athletic fields needed to be repaired by filling in sinkholes, it was Tumalo Tuff from the Taylor NW pit near Bull Springs that was used for the job. I would note that sources for the Tumalo Tuff are contracting. One source has been the Robinson pit off of Century Drive (Inventory Site 386, see LUBA Record 1460). We are aware that 4-11 Equipment Company has closed that pit for production of additional resource, and so that source is no longer available. An additional source is the Taylor NW pit off of Bull Springs Rd. (Inventory Sites 282 and 283, see LUBA Record, p. 2562-2574.) DOGAMI notes in its 1995 Special Paper 27, "An Economic Analysis of Construction Aggregate Markets and the Results of a Long-Term Forecasting Model for Oregon" (at pages 27-28) that it is important to have competition in the market place to ensure that a single producer does not dominate the market place. (See Exhibit 2, excerpts from DOGAMI paper.) Our pit can provide competition to sources such as the Taylor NW site that will help keep prices for construction fill in line. One advantage our pit has is that it is relatively close to construction sites, which decreases the cost due to transportation costs. DOGAMI estimates in the 1995 Special Paper 27 1 referred to earlier (at page 25) that for every extra mile between a mine and a consumer, the trucking costs rose by 12.9 cents per ton (which cost has certainly increased today with the increasing cost of fuel). We are located relatively close to the Bend and Tumalo construction markets. This means that we can offer fill material to construction sites at a lower cost than sites that import fill material from further away. If you are going to strictly interpret the ESEE to require a specific reference to each mineral that is to be mined from a site, we would ask you to consider the precedent that you may be setting by doing so. If other sites, such as the former Pieratt site or the Taylor NW pit off of Bull Springs Road do not have the Tumalo Tuff specifically included in their inventories or uniquely addressed in the ESEE for their sites, would they also be subject to the same restrictions on mining of the tuff. If so, the unintended consequences of such a restrictive reading could be that there are no legal sites where such important construction material can be obtained. We believe that where the general consequences of mining a material that is related to the material that has been inventoried are similar, the ESEE shouldn't be read so strictly to preclude mining related material that necessarily must be removed in order to access the inventoried material. 4 T, I would also like to clarify why we have asked to take incidental aggregate from the site and the need for a rock crusher. The site is overlain by a cap layer of basalt. A site visit to the mining site shows that portions of that basalt have fallen into the area to be excavated and will necessarily need to be excavated to get to the pumice below. (See Exhibit 1B.) In addition, portions of the tuff are "welded" and not susceptible to crushing by our roll crusher. (See Exhibit 1C, see also LUBA Record, p. 2708.) C. Headwall The existing headwall at the site was created by Cascade Pumice under their 1996 site plan. Our permit boundaries are essentially the same as Cascade Pumice's. Therefore, whatever headwall is created during the mining within this perimeter is a headwall that would be allowed under the 1996 permit. Our proposal is to mine the tuff and to leave a headwall of the tuff and the pumice. We are allowed to leave the headwall by DOGAMI regulations so long as the headwall is viewed as being stable. The preliminary analysis from our geo-tech indicates that the headwall will be stable. (LUBA Record, p. 2342.) We are allowed to change our DOGAMI reclamation plan by submitting a request for an amendment. Under our site plan the headwall can be expanded vertically by about 20-30 feet (up to an elevation of approximately 3410 feet) and horizontally by about 650 feet. It should be noted that as the headwall is expanded toward the east, it curves toward the south, which when combined with the eastern shoulder that will result from cutting back into the hillside, will result in a portion of the headwall being shielded from the nob in the park and the adjacent residences. (See Exhibit 1D.) The trees on the eastern shoulder would be retained as required, to give some visual protection to the park and any protected residences to the east. Such a requirement would apply only to the mining footprint that is the subject of this site plan permit. If the pit were to be expanded beyond the existing permitted footprint in the future, the continued presence of those trees should not be used to preclude a further expansion, provided all applicable standards are met. I would note that due to topography, there is nothing that can be done to shield some houses to the north of the pit along Ridgewood Drive (see LUBA Record, p. 2992) and some houses to the east behind the nob in Tumalo State Park from viewing the headwall. (See Exhibit 1E.) We believe that it is situations such as this that the topography exception from the visual screening requirements was meant for. As we have noted previously, there are numerous instances of near vertical headwalls in the Bend area involving the Tumalo Tuff. Across the river in Tumalo State Park itself, next to the small nob and downslope from O.B. Riley Road, there is an old mining site with an exposed headwall of Tuff and Pumice. (See Exhibit 1F.) On the uphill side of O.B. Riley Road from Tumalo State Park, there are exposed slopes of Tumalo Tuff and Bend Pumice. (See Exhibits 1G, 5 A 1H and 11.) On the west side of the river, there is an extensive headwall of the Tumalo Tuff along Tumalo Reservoir Road. (See Exhibit 1J.) Similar headwalls exist in the Broken Top development and in Shevlin Park near the covered bridge. The headwall in Broken Top is on the signature hole, hole #11, of the golf course. (See Exhibit 5.) D. Dust Emissions There has been concern about the headwall emitting dust. We believe the issue of the headwall as a source of dust emissions has been overblown. Because of a misunderstanding of the proposed process at the previous hearing before the Board of County Commissioners, we didn't have a chance to respond fully to the allegations that the headwall was the source of dust emissions at the site. We will take that opportunity now. In my experience, from being involved in day-to-day operations at both the Johnson Road pit and at the Able pit, by far the greatest source of dust is from the flat surfaces that are subject to vehicle travel. From my experience at both pits, the vertical headwall produces little or no dust. The nature of the Tuff material is that it is a material that is relatively hard to start with and that it often requires digging with considerable force with an excavator to loosen it from the ground. You can see tooth marks from the excavator bucket in the pit wall where the Tuff material has been excavated. (See Exhibit 1K.) When it is dug, the material can be burnished to a resistant surface just from rubbing the bucket against the material. The Tuff is generally moist enough upon initial excavation that erosion from the headwall is not an issue at that time. It is when the material dries out that erosion can become a problem, and then the fine materials tend to drop off the face or become windborn. However, the material becomes weathered due to exposure relatively quickly and a crust forms on the face of the material, protecting the face from erosion. In order to hasten the weathering process that leads to formation of the crust, our geo-tech consultant suggests that we water the headwall while it is excavated. We propose to add that step to our menu of dust prevention measures. We will be watering the bench area where the excavator is working anyway with our water truck, and it will not be a problem to also spray water on the newly exposed vertical faces when the water truck makes its rounds. Such watering exercises will not tax our water supply because we do not expose great expanses of head wall at once and because for any section of headwall all that is required to form the crust is a one-time spraying with water. The nature of our excavation process is that after we excavate an area of the headwall it is not worked again, so there is not any continual disturbance of an excavated portion of the headwall. Most of the existing head wall has not been touched since Cascade Pumice initially stripped off the Tuff to expose the Bend Pumice almost 10 years ago. Those portions of the headwall exhibit little erosion. In the pictures of the headwall at 1N, you can tell which portions we excavated and which portions Cascade Pumice excavated, because of the difference in size of the teeth marks (our equipment leaves more closely spaced teeth marks). 6 3 Where we have had problems with wind picking up particulates from the headwall area in the past has been in those areas at atop of the headwall where Cascade Pumice installed earthen berms required by the Mine Safety and Health Administration (MSHA), which is the equivalent of OSHA as it relates to mines, and in the sloped areas above and adjacent to the headwall area. These tend to be made up of unconsolidated earth deposits that are more susceptible to wind erosion than the hardened headwall areas. Pictures showing the earthen berm at the top of the headwall and one of the adjacent sloped areas are attached as Exhibits 1M and 1P. The relative lack of erosion from the headwall can be seen by reviewing the top of the layer of exposed Bend Pumice. There is a layer of wind-deposited Tuff particulate matter on top of the Bend Pumice layer and even after almost three years of inactivity at the pit it is relatively thin. (See Exhibit 10.) That the headwall itself does not shed much can be shown by the limited pile of debris at the toe of the slope, even after almost three years of inactivity at the pit. (See Exhibit 1N.) We believe that biggest step that can be done to cut down on dust coming from the headwall area is to ensure that the bermed areas on top of the headwall are adequately vegetated (which we believe they have become during the time that has ensued since our previous hearings), and to either minimize the sloped areas at the top of the wall where loose material may tend to lie and fall off the wall and/or to ensure that the those areas are adequately mulched. If these steps I have identified above are taken as well as the other steps identified in our dust mitigation program, such as watering of pit travel areas and untreated or unvegetated stockpiles and mulching of other exposed areas, and inclusion of tackifiers as needed, dust can be adequately controlled at the pit. From previous DEQ testimony, we believe these are viewed by DEQ as being reasonable precautions to prevent excavated surfaces from emitting dust. We know that when we initially took over the pit from Cascade Pumice we had issues with dust control. Part of that was just from a learning curve that we experienced as new operators of the pit. Unfortunately, due to his untimely death in December 2007, we weren't able to tap the experience of Cascade Pumice Manager Dugan Pearsall as much as we would have liked in our operation of the pit. We have learned by experience which areas needed treatment and which areas do not. I would note that just before they left the site, Cascade Pumice re-contoured the areas on the eastern portion of the property that had formerly been operated by Bend Aggregate and Paving by filling in that area with the Tumalo Tuff. This exposed new areas of Tuff to wind erosion and created dust issues that had not been present previously and that we were able to rectify with our first application of the mulch product in April 2008. Our previous testimony in the record indicates that we have an adequate supply of water and ability to put water down to control dust on those areas most likely to emit dust. (LUBA 7 A I Record, pp. 945-952.) With operating experience at the site under our belts and tools such as adequate water availability and mulching to cover exposed areas as needed, and tackifier additives, we believe that we have all the tools we need to take reasonable precautions to prevent dust from becoming airborne. Views of the Pit One of the issues on remand was that the visibility of the pit, particularly the headwall from nearby protected uses. We understand that as to nearby residences, the only protected sites are those houses that were built prior to 1990. We understand that parks, such as Tumalo State Park, are also a protected use. We are fortunate in that the floor of the pit lies in a bowl of sorts, largely hidden from surrounding properties by the following topographic features: (1) a plateau on the southern edge of our property that protects the home sites to the south from viewing the pit; (2) a vegetated ridge that lies on our property to the west of the pit site (referred to as "the low ridge" in the 1996 Cascade Pumice site plan approval); (3) by a ridge on the Hoffman property to the north that screens the Hoffman main house (referred to at other places in our materials as "the Hoffman #1 house") from view of all but potential views of the headwall (see Exhibit 1P) and (4) by the sharp difference and drop-off in elevation between the pit floor area and the properties to the east, such as the Todd property, the Deschutes River and the day use and overnight camping areas of the Tumalo State Park (See LUBA Record, p. 528 (Todd residence) and LUBA Record, p. 2165 (Tumalo State Park day use area).) The only dwellings that appear to have a view of the pit floor are a handful of houses located across the Deschutes River. (See Exhibit 1R.) I understand that some of those houses were built after July 1990 and so are not protected by any screening requirements. Our primary opponents are the Hoffmans, who own the property to the north. There is no dispute that the Hoffmans cannot see the pit floor from their main house located down near the river. As noted, there is an intervening ridge located on their property that protects their house from viewing the pit. (See Exhibit 1Q.) From standing on the site at about the level of headwall toward the eastern boundary, it appears that the roof of the Hoffman house is visible, but in looking for their house with binoculars from the proposed top of the headwall, I was only able to see a glimpse of a window from the eastern extension of the headwall. (See Exhibit 1T.) From my view, it that window appeared to be a window in a vaulted ceiling oriented toward the river. It did not appear to me that it would provide views of the pit from the house. I could not see the ground around the house where anyone outside at the home would be able to see the headwall. As I descended to elevation 3380, it appeared that all views of the pit would be blocked by the roofs of one or more horse barns on the Hoffman property. For practical purposes, then, it appears that the Hoffmans may not be able to view any portion of the proposed headwall at all from their house. 8 We have never received any complaints from Tumalo State Park or park users (other than neighborhood opponents) about our operation of the pit. As noted in my previous testimony of May 20, 2008, (see LUBA Record, p. 693) the day use and camping areas are shielded from the view of the pit by a ridge that runs along the west side of the river (see LUBA Record, pp. 2164, 2165 and 2167) and intervening vegetation. I have attached some reviews of Tumalo State Park from a travel website that indicates the primary complaint with Tumalo State Park appears to be the noise from adjacent roadways, which obviously produce noise all around the clock. (See Exhibit 3.) At least one of those comments was from a time period in which we were operating the pit, but there is no mention of the pit. Due to the topography of the area, there is no possibility of screening the site entirely from surrounding properties. We understand there is no requirement that the site be entirely screened from view where such screening is not possible. We can partially screen the pit floor area from the views of the small nob in Tumalo State Park and nearby houses by providing a vegetated berm across the eastern boundary of the pit. We would propose a berm of 12 feet in height running across the eastern mining permit boundary for this site plan from the northeast corner of the mining boundary approximately 200 feet south to merge into the beginning of the eastern shoulder of the pit at about elevation 3320, vegetated consistent with the manner in which we propose to vegetate the berms around the processing equipment. (See excerpt of site plan at Exhibit 4.) The 12-foot height was derived from the approximate height of the top soil piles that were left by Cascade Pumice and that appear to provide some degree of screening. As noted, existing vegetation on the vegetated slopes above the pit floor on the eastern shoulder of the expanded headwall would be retained in this mining footprint. It appears that such vegetation retention and the curvature of the wall to the south will shield the nob of the park and nearby protected residences from exposure to portions of the headwall as it is extended east. (See Exhibit 1D.) Setbacks We understand that one of the issues that LUBA identified that needed to be addressed was the piles of top soil that fall within the 1/4-mile setback. We didn't think that the setbacks applied to such piles of material, given that they just sit there and are not worked. However, we are prepared to address LUBA's determination that the two piles of topsoil that do not meet the %-mile setbacks, one near the north property line that lies within the %-mile setback for the Hoffman #1 residence and a series of piles that lie within the %-mile setback for the Todd residence. We are willing to remove the pile of top soil that we imported that lies within the % mile setback from the Hoffman #1 house. This material can be incorporated into the 12-foot high earthen berm that we propose to construct along the eastern edge of the mining permit area. That pile is identified in an excerpt from the Site Plan shown in Exhibit No. 4 and pictured in Exhibit IT. 9 The other stockpile that appears to be relevant to LUBA's remand is a series of piles that fall outside of the X-mile setback from the Hoffman #1 residence, but just inside the X-mile setback from the Todd residence to the east, which is located about 90 feet lower in elevation along the Deschutes River. That series of piles is identified in an excerpt from the Site Plan attached as Exhibit No. 4 and pictured in Exhibit No. 1U. These are piles of top soil that were removed by Cascade Pumice under the 1996 permit and retained on site for use in reclamation. Over time, they have become vegetated with native grasses and serve a screening function of portions of the pit floor for the houses overlooking the site to the east and the nob in Tumalo State Park. We propose to leave these piles in place, at least until they need to be moved to allow for mining that area. From reviewing the site plan, it is evident that because of the way a series of X-mile setbacks from pre-1990 houses intersect the property, there really is no other place on the site to which these topsoil piles can be moved and not presently interfere with mining operations or that would require that screening vegetation be removed (such as trees along the western edge of the pit). The mining site is a narrow site and this plus the need to store large amounts of the removed Tuff and the existence of the X-mile setbacks makes for tight operating conditions. The Todd house that the %-mile setback is intended to protect is located below a ridge and in a bowl along the Deschutes River to the east and is thus protected by the intervening changes in topography from anything that would be associated with the top soil piles in that location. (See LUBA Record, p. 528.) As mining from activities elsewhere allow it, new piles of topsoil could potentially be stored outside of the X-mile setbacks, near the central stockpile of tuff. There are other piles of materials that lie within the X-mile setbacks from the Hoffman #1 and Todd residences that are left over from Bend Aggregate and Paving's mining of the site back in the 1970s and 1980s. (See excerpt from site plan, Exhibit 4.) These piles have become vegetated and are not involved in our mining activities and we do not propose to do anything with them, unless we mine in that area. Visual Protection of Processing Sites In our application, we asked for three processing sites, as shown on the site plan. For the reasons I gave above, we still desire to have three processing sites. Allowing for the processing site to shift as the extraction area shifts will allow us to have a lesser impact on adjacent properties in terms of less vehicle miles traveled between the extraction site and the processing area and consequently less potential for raising dust from pit roads and less vehicle noise. Photographs taken at or near the various processing sites are attached as Exhibits 1X, 1Y and 1Z. 10 We would propose to screen those sites from pre-1990 dwellings to the east by erecting earthen berms between the processing equipment and the protected residences, as I outlined in my 2009 testimony before the Board (LUBA Record, p. 433) or to use the existing tuff stock pile for the southwestern processing site. As set forth in our earlier testimony, the processing equipment consists of screening equipment, one of two crushers (depending on the material needing to be crushed) and potentially a wash plant for producing horse arena sand. (See April 15, 2008 testimony of Cougar Caverhill, LUBA Record, p. 660, 521, 522 (pumice screener and crusher) and LUBA Record, p. 888 (impact crusher).) The tallest of this equipment stands about 13 - 14 feet in height. We do not know the actual height needed to screen the equipment completely from the elevated protected sources across the river because that is a function of how close the berms would be to the equipment and how much higher the protected conflicting uses are than the pit floor. Until we set up the northeast and the southeast crushing sites and determine their layout in relation to the remainder of the mining operation, we will not know how close we will be able to locate the screening berms to the processing equipment. Without firm information on all these variables, we would propose to include a berm of at least 15 feet in height with the final heights and positions to be determined in the field. These berms would be temporary (the berms would be removed upon completion of the use of a processing site) and would be covered with ground cover. In the event the tuff pile that shields the southwestern processing site from view were to become so reduced in size as to expose that equipment to view, we would erect a similar berm to shield the processing equipment at that processing location as well. For ground cover, we would propose to hydroseed the berms with a mulch and a seed mix of drought-resistant, native grasses, such as rye grass consistent with DOGAMI's best management reclamation practices. (See Chapter 7 of DOGAMI's Best Management Practices for Reclaiming Surface Mines in Washington and Oregon.) (LUBA Record, p. 2169.) Given that only native, drought-resistant plants would be involved that would require minimal watering, we certainly have sufficient water to ensure the success of such plantings. That plantings of native-grass ground cover can be successful at this site is shown by the fact that the top soil piles have been successfully vegetated. (See Exhibit 1V.) Thank yqu for this opportunity to testify. Pat McClain 11 Exhibit 1- Photographs r- It, I j r % ,a t- ; mss. + Exhibit 1A: Survey stakes showing eastern boundary of mining area. A~ , t Document Reproduces Poorly (Archived) } -0 : Exhibit 1AA: A band of the Tumalo Tuff showing inclusions of the Bend Pumice. The pumice inclusions show up as the small darker orangish spots embedded in the tuff. Exhibit 1- Photographs i ~ ~ ~ p~fO' it #•4q, _k~ t Exhibit 1 B: Chunks of basalt from the basalt cap rock that have fallen into the lower layers of Tuff. I _ . ~ 4 J fie, - r - ~ Y =mss- ~ ~ ' - - , Exhibit 1 C: Pieces of welded tuff. Exhibit 1- Photographs Exhibit 1 D: Natural vegetation on shoulder of eastern edge of mining area that will partially screen the headwall area from protected houses to the east. Such vegetation will be retained. The house in the background is the Massey house that lies outside of the Y4-mile impact area. p s~ e ~i La a%. - Y S t ~ + a N1 j, Exhibit 1 E: The small "nob" area in Tumalo State Park as viewed from O.B. Riley Road. Exhibit 1 - Photographs Exhibit 1 F: The headwall of Tuff and Pumice in Tumalo State Park, the remainder of an old mining operation. Excavation marks are still visible in the tuff. This headwall has existed for as long as I can remember, going back about 50 years and probably predates that considerably. Exhibit 1G: An exposure of Tumalo Tuff on the uphill side of 0. B. Riley Road, just above Tumalo State Park. Exhibit 1- Photographs Exhibit 11: The Bend Pumice and the Tumalo Tuff in a road cut along O.B. Riley Road, just above Tumalo State Park. The round pieces of material in the tuff layer are inclusions of pumice. Exhibit 1 H: Another exposure of Tumalo Tuff along O.B. Riley Road. The house above the cliff is a post-1990 home and is not protected from visual impacts of the Johnson Road pit. Exhibit 1 - Photographs 1i0 v a , Exhibit 1J: A road cut of Tumalo Tuff above Tumalo Reservoir Road, about 'h mile to the north. r.. ~ ~ ' _ . ► { a* ~ a3 Ilk fo~ r Jr' v w e t Y Ilk y y.. aK a~ i a e+ 'Vct Exhibit 1 K: Claw marks in the Tumalo Tuff at our pit left from excavating the tuff. The round orangish shapes are inclusions of pumice that are embedded in the tuff. Exhibit 1- Photographs rL C !'4.~ •r r 4, f tarp tFZ Z`..' r V,` '4~j~ _~j 7brr S~fY~ M 14 11 a f ~ ~ Ag' X01. FF ~ ~F t ff F y ar 40 lot 71 y 9 ' rh try ` ~.~a,_. , , te Exhibit 1 L: An example of the Tumalo Tuff from the O.B. Riley road cut, crusted over from exposure to the elements. This also shows inclusions of the Bend Pumice. Exhibit 1 M: An earthen berm on top of the headwall at the Johnson Road pit. MSHA requires that such berms be located atop the headwall. Vegetation has now taken hold on the berm. Exhibit 1- Photographs Exhibit 1 N: The flat surface of the top of pumice layer in the eastern edge of the current mining area showing how little deposition of Tuff material by wind has occurred over three years. The printed version shows a more orange tint than is present in real life. Exhibit 10: The headwall at the Johnson Road pit showing the Tumalo Tuff above the Bend Pumice. The accumulation of material at the toe of the slope shows how little material has fallen from the headwall and berm over the last three years. Exhibit 1- Photographs , r 1,, ' A'j e o' Exhibit 1 P: The southwest corner of the pit, where the biggest wind erosion problem in the headwall area occurred. This area was successfully treated with mulch in May 2008 to prevent wind erosion. Exhibit 1 Q: The ridge on the southern edge of the Hoffman property that blocks views from the Hoffman residence of the mine and that shields other houses from the north from views of the pit floor. The presence of the ridge would make it infeasible for us to supply screening along our northern boundary. Exhibit 1- Photographs .V Exhibit 1 R: Views of the residences across the river from the pit. The houses on the right are post-1990 houses and are not protected. The red house and the house next to it are pre-1990 houses. r w a VT Exhibit 1 S: A view across the Hoffman property showing the extension of the ridge across the southern boundary of the property. The Hoffman #2 house, shown in the photo, is a post-1990 house, but is protected in any event by the intervening ridge. Exhibit 1 - Photographs IV O4 i 4 `y • rN V44 14 ,may ' •ie~'. ~r Exhibit 1 U: The top soil pile that lies within the %-mile setback of the Hoffman residence. This pile will be moved. z Xv 4,x ~<< '7t Exhibit 1T: A view of the Hoffman #1 house from Johnson Road showing how the house sits in a hollow surrounded by vegetation. Exhibit 1- Photographs Exhibit 1V: The topsoil pile that lies within the'/-mile setback of the Todd residence. This topsoil pile is proposed to remain where it is until mining requires that it be moved. The Klein house appears to the immediate left of the pile and demonstrates that a berm of this approximate height would screen portions of the pit floor from the "nob" in Tumalo State Park and any surrounding protected residences. Exhibit 1W: Vegetated piles of material left from aggregate mining in the 1970s and 1980s by Bend Aggregate and Paving. -a. ~ Exhibit 1- Photographs 4,.4 ice; - U ~ A 'ti'SF' Y u ~LL Exhibit 1X: View east from location of the southwest processing site. Exhibit 1 Y: View east from approximate location of southeast processing site. Exhibit 1- Photographs Exhibit 1 Z: View of location of northeast of processing location (at stake). Vegetated pile will be removed when required by mining operations. STATE OF OREGON DEPARTMENT OF GEOLOGY AND MINERAL INDUSTRIES Suite 965 800 N. E. Oregon Street #28 Portland, Oregon 97232 SPECIAL PAPER 27 An Economic Analysis of Construction Aggregate Markets and the Results of a Long-Term Forecasting Model for Oregon By Robert M. Whelan Mineral Economist Oregon Department of Geology and Mineral Industries 1995 GOVERNING BOARD John W. Stephens, Chair Portland Jacqueline G. Haggerty-Foster Weston Mountain Ronald K. Culbertson Myrtle Creek STATE GEOLOGIST Donald A. Hull DEPUTY STATE GEOLOGIST John D. Beaulieu 'ft 2.. Oregon Department of Geology and Mineral Industries Special Papers, ISSN 0278-3703 Published in conformance with ORS 516.030 Notice The Oregon Department of Geology and Mineral Industries is publishing this paper because the information furthers the mission of the Department. To facilitate timely distribution, this report has not been edited to our usual standards. Summary This report contains the results of a major applied research project on aggregates. The work was done by the Oregon Department of Geology and Mineral Industries (DOGAMI). The main objective of this research was to produce a long-range forecast of aggregate consumption for every county in Oregon. The project work also yielded new findings that are useful for anyone studying aggregate-related issues in Oregon or elsewhere in North America. Some of the major findings of this research project are: • Per capita aggregate consumption varies greatly from place to place. It tends to be much higher in rural areas than in cities. • Increases in the number of households and personal incomes have a major influence on aggregate consumption. In 1993, growth in households and incomes accounted for about three out of every eight tons of aggregate used in Oregon. • Over half of Oregon's aggregate consumption goes into projects that accommodate motor vehicles. This includes roads, parking lots, driveways, and bridges. • Most of the aggregate mines in Oregon are small. Half of the firms that operated mines in 1993 produced fewer than 16,150 tons. The average mine yielded 83,159 tons. • Urban areas use less aggregate per mile of road than rural areas. One reason for this difference is the higher proportion of residential streets in urban areas. • High shipping costs isolate markets from outside competition. Communities that block or prohibit new mines can inadvertently create regional monopolies. • Between 2001 and 2050, Oregon's aggregate consumption will rise 0.53% per year compared to a 1.01 % growth rate in the state's population. Consumption will average 55.8 million tons a year. Public works and other government-supported projects will account for 34.3% of this consumption. Almost 30% of total aggregate consumption will go into roads. Other types of infrastructure will use 19%. Nonresidential construction, which also includes farms, will account for 29% of the total. Residential buildings will use 16%. This report is written in a straightforward and nontechnical style so that readers who are unfamiliar with the aggregate industry can readily use it. The report has three chapters. The first is a general discussion of the factors that influence aggregate consumption. There is background information on how and where aggregate is used. It concludes with an explanation Hof the forecasting methods we developed. The second chapter contains the forecast for the entire state. There is also a sensitivity analysis that tells us what the forecast would look like if we assumed different rates of economic growth. Forecasts for Oregon's 36 counties are shown in the last chapter. Every county forecast comes from a large economic model containing extensive amounts of data. This information has been condensed into two-page summaries for each county. Much of the data and analytical work presented in this report is based on original research. Information and data gathered from other sources are cited. The quantities of aggregate in this report are expressed in short tons. Aggregate can also be measured in volume terms. A typical cubic yard of aggregate in Oregon that has been mined, processed, and loaded onto a truck weighs about 1.425 tons. Aggregate in the ground before being mined weighs about two tons a cubic yard. These are averages. Actual densities can be much higher or lower. Table of Contents S UM MARS" TABLE OF CONTENTS 111 LIST OF TABLES .......iv TABLE OF FIGURES CHAPTER ONE: THE ECONOMICS OF CONSTRUCTION AG viii GREGATE MARKETS . .............I INTRODUCTION WHAT IS AGGREGATE? 1 WHAT ARE SOME OF THE OTHER TERMS USED IN THIS REPORT? HOW MUCH AGGREGATE IS PRODUCED AND USED IN OREGON? WHO PRODUCES AGGREGATE? ............4 . WHO USES AGGREGATE AND HOW MUCH DO THEY CONSUME? How DOES NEW HOUSING AFFECT AGGREGATE CONSUMPTION? ...........7 How MUCH AGGREGATE IS USED ON PUBLICLY FUNDED PROJECTS? I IS PER CAPITA CONSUMPTION A GOOD WAY TO FORECAST DEMAND? I WHAT DRIVES AGGREGATE CONSUMPTION? .........12 WHAT ARE THE CONTRIBUTIONS FROM GROWTH AND BASE LEVEL USE? IS THE IMPACT OF GROWTH THE SAME IN ALL COUNTIES? 16 DO URBAN COUNTIES USE MORE AGGREGATE ON THEIR ROADS? 18 HOW IS ROAD MILEAGE DISTRIBUTED IN OREGON? 18 . S RECYCLING GOING TO REDUCE THE NEED FOR MINING? WHAT MATERIALS ARE RECYCLED? ........22 AN WE FIND WAYS TO REPLACE AGGREGATE? HOW IMPORTANT ARE SHIPPING COSTS?............ ......•23 WHAT HAPPENS IF THERE IS A SHORTAGE OF AGGREGATE? HOW COMPETITIVE ARE AGGREGATE MARKETS? 27 HAT CAN BE DONE TO ENCOURAGE COMPETITIVE PRICING? WHAT CAN BE DONE TO CONSERVE VIRGIN AGGREGATE RESOURCES? . HOW DOES THE FORECASTING MODEL WORK? .,,.,,30 HAT IS A LONG-TERM MODEL? WHY DID YOU CHOOSE A LONG-TERM MODEL FOR THIS RESEARCH? DO THE MODELS UNDERSTATE PEAKS AND TROUGHS? ..34 WHAT FURTHER RESEARCH IS NEEDED? ......35 CHAPTER TWO: FORECAST OF AGGREGATE CONS UMPTION IN OREGON 38 INTRODUCTION . FORECAST SUMMARY .....38 . CONSUMPTION FORECAST BY END USE SUBCATEGORIE S SENSITIVITY ANALYSIS BASED UPON GROWTH 41 SENSITIVITY ANALYSIS BASED UPON INCOME 45 FORECAST OF PER CAPITA CONSUMPTION ....4 6 CHAPTER THREE: INDIVIDUAL COUNTY FORECAST ....47 S . 48 INTRODUCTION BAKER COUNTY ...48 BENTON COUNTY CLACKAMAS COUNTY ...54 CLATSOP COUNTY COLUMBIA COUNTY ...58 COOS COUNTY ...60 CROOK COUNTY 62 ..6 4 IV f + y CURRY COUNTY ....66 DESCHUTES COUNTY ....68 DOUGLAS COUNTY ....70 GILLIAM COUNTY ....72 GRANT COUNTY ....74 HARNEY COUNTY ....76 HOOD RIVER COUNTY ....78 JACKSON COUNTY ....80 JEFFERSON COUNTY ...82 JOSEPHINE COUNTY ...84 KLAMATH COUNTY .86 LAKE COUNTY ...88 LANE COUNTY ...90 LINCOLN COUNTY 92 LINN COUNTY 94 MALHEUR COUNTY ...96 MARION COUNTY ...98 MORROW COUNTY . 100 MULTNOMAH COUNTY . 102 POLK COUNTY . 104 SHERMAN COUNTY . 106 TILLAMOOK COUNTY 108 UMATILLA COUNTY 110 UNION COUNTY 112 WALLOWA COUNTY 114 WASCO COUNTY 116 WASHINGTON COUNTY 118 WHEELER COUNTY 120 YAMHILL COUNTY 122 V The most important benefit is reduced labor cost. More expensive materials will be used if they eliminate worker time on the job. The cost of the displaced aggregate is often an insignificant factor in the substitution. For example, while aggregate may be 10% to 20% of the delivered price of concrete, most of the cost of using it is in the labor needed to form the concrete. In the end, aggregate is only a minor part of the total cost. For some applications in buildings, concrete competes directly with steel. If an architect chooses steel over concrete, the amount of aggregate needed to construct a building is reduced. Although the price of aggregate may not have had any impact on the decision, it gets substituted. Suppliers of building materials are always introducing new products. Some of these lessen or even eliminate uses for aggregate. For instance, innovations in glass have led to losses in aggregate consumption for exterior walls. High-strength concrete has replaced regular concrete in some applications because of its desirable engineering characteristics. Projects made with high-strength concrete use less aggregate. A few new technologies and products directly target aggregate substitution as a major reason for their development. Lime-treated base, for example, is growing in popularity especially in areas where crushed rock is expensive. In this method, lime, sand, clay, and native soil are mixed together and compacted. Asphalt or concrete pavement is placed on top. No base rock is used. The method works well, but technical problems limit its use to special situations. Geotextile fabric is a common alternative to base rock in road construction. A geotextile fabric allows water to drain into soil while keeping crushed rock from sinking into the ground. It effectively reduces the amount of crushed rock needed. Some substitutes do not replace aggregate but simply extend its useful life. New plastic-based chemicals are being used on gravel roads and in asphalt pavements. These improve durability and reduce the amount of aggregate needed for maintenance and repairs. Durability can also be enhanced by use of thicker layers of asphalt pavement or even concrete in place of asphalt. The construction industry is innovative. The materials and methods used today are quite different from those used just two generations ago. Lowering labor costs is the main driver of this change. Substitution of aggregates is usually an unintended consequence. Innovation will cut into future consumption, but this will occur at a very slow pace. Aggregate is simply inexpensive relative to its benefits. For many of its uses aggregate does not face serious competitive challenges. How Important Are Shipping Costs? In 1993, aggregate sold for an average mine-gate price of $4.39 a ton in Oregon. This figure comes from our mining industry census. The price does not include shipping costs. We estimate, however, that the average delivery charge for aggregate shipped by truck was $1.62 a ton. The total delivered price is $6.01 a ton. We estimated the shipping cost because the size, complexity, and lack of readily accessible data made direct data collection impractical. There are 1,074 intrastate sand and gravel carriers alone in Oregon.20 Several thousand crushed rock, captive, interstate, and other types of truckers also ship aggregate. Very few can calculate their average delivery distances and charges. We had to rely instead on informed opinions about normal delivery conditions in Oregon. 20 From a computer printout of sand and gravel carriers by zones supplied by Arnie Chinn of the Oregon Public Utility Commission. 24 We called several independent truckers and mines and asked them what they charged for loading, unloading, and hauling aggregate. We were told that a typical one-way shipment was 10 miles. Respondents said that their charges depend on the driving time, the size of shipment, and the type of truck. Our $1.62 estimate is based on an average truck load of 20 tons. We assume that the typical truck travels 35 miles per hour over its route. At 10 miles each way, a round trip takes over 34 minutes. Loading adds five minutes to each trip. Unloading takes another four minutes. The total round trip time is just over 43 minutes. From our informal survey, we estimated that the average truck costs $45 an hour. That includes fuel, labor, and maintenance. A single round trip, therefore, costs $32.46. Dividing that by 20 tons gives us a shipping charge of $1.62 a ton. About 34 cents of that are the costs of loading and unloading. Trucking costs vary considerably, depending on circumstances. Truck capacity, for instance, has a big influence on delivery costs. Truck capacities range anywhere from one to over 30 tons. A market study of hauling rates for sand and gravel in the Puget Sound region of Washington state shows how important truck capacity is to delivery co$t.21 According to the study, in 1990 shipping a ton of sand in a truck carrying 15 tons cost approximately twice as much as in a truck hauling 35 tons. Figure 1.2 illustrates the relationship between distance, cost per ton, and truck capacity. Figure 1.2 Contract Trucking Costs For Hauling Sand and Gravel as a Function of Distance in the Puget Lowland During 1990 6.00 5.00 F 4.00 Z a 3.00 N 0 2.00 U 1.00 0.00 One-Way Haul Distance (Miles) E - - - 25 Ton Truck 35 Ton Truck Travel time directly affects shipping costs. Traffic hurts the productivity of trucks. In our estimate, if we assume that congestion slows trucks to 30 miles per hour, the shipping cost estimate goes up to $1.84 a ton. Road congestion is one reason why shipping costs are higher in urban areas. Distance affects trucking costs. If we increase the distance in our estimate between a mine and its customer to 32%2 miles, shipping costs go up to $4.39 a ton. That is double the 1993 mine price of the aggregate. For every extra mile between a mine and a consumer, our estimate of trucking costs rises by 12.9 cents a ton. Actual costs will vary depending on local conditions. 21 White, W. W., III; Stebbins, Scott; Hillman, and Thomas, 1990, Puget Sound Region Sand and Gravel Market Study: U.S. Bureau of Mines Report BIA 64-III, 1 v. 25 L, r- o) rn N N N N N Shipping costs have a dramatic effect on competitiveness. For instance, consider the case of two mines competing to supply crushed rock to a construction project. If one of the mines is ten miles farther away from the project, it will very likely lose out to its competitor, because the shipping charges would add $1.29 per ton to the delivered price. There are exceptions. Some mines can compete well beyond their local markets. They can do this if they produce a highly desirable grade of aggregate, have unusually low mining costs, or have access to low-cost shipping. Mines on interstate highways, for example, can sometime afford to haul aggregates for long distances because their trucks travel at highway speeds. All of these, however, are exceptions. According to our census, over 92% of Oregon's aggregate production in 1993 was delivered by trucks. We estimate that mines originated 2,244,843 truck loads in 1993. We believe there were another 204,000 loads coming from out-of-state mines and recycled-material sources. Our estimate puts the cost of trucking at 16.2 cents a ton mile. This includes the expense of loading and unloading. A ton mile is the cost of shipping a ton of aggregate one mile. While trucking is expensive, it has one major competitive advantage: it is flexible. Trucks can deliver between any two points on short notice. They can also economically ship small quantities. Barges haul 5% of the aggregate coming from Oregon's mines. Most of the traffic is on the Willamette River, where calm waters allow for simple deck barges to make local deliveries. Even though barges are suitable for long-distance shipping, only one is currently doing so. On the Columbia, there is one barge making long-distance deliveries between Boardman and Portland. Depending on the design, barges carry anywhere from 1,000 to 3,000 tons of aggregate. The cost, including unloading, runs between one and two cents a ton mile. While inexpensive to operate, barge systems for aggregate often require a very large investment in vessels and port facilities. On the Columbia River, for instance, you need special high-walled barges to protect against the high winds and swells. Railroads shipped 2% of Oregon's aggregate in 1993. Two mines accounted for most of the traffic. One moved rock from a mine in an isolated area of Washington County to a city near Portland. The other mine shipped high-quality railroad ballast from Baker County. A single rail car holds 100 tons of aggregate. Loading and unloading costs about 75 cents a ton. Shipping costs are negotiable and vary with distance. A typical rate would be around 3.5 cents a ton mile.22 Like barges, railroads are handicapped by their inflexibility. Rarely are they adjacent to both mines and construction sites. A substantial investment in equipment is normally required. Aggregate usually has to be transferred at some point onto trucks. Anytime a ton of aggregate is transferred, about 34 cents a ton is added to its final delivered price. Shipping by ocean freighter is another way of delivering aggregate, although it is not presently done in Oregon. Using ocean freighters is feasible because of back-haul pricing. Ships are often empty when they come into ports to pick up loads. Knowing they will make a profit on those loads, the ships can offer low rates if they can find anything they might deliver into the port. These low-cost arrangements are called back-haul rates. Currently, empty ships come into Portland to pick up soda ash, potash, and other mineral commodities. The port has facilities that can be modified to handle aggregate imports.23 22 From a phone conversation with Ed Immel, ODOT State Railroad Planner. 23 From conversations with the Port of Portland. 26 What Happens if There is a Shortage of Aggregate? Local aggregate shortages occur in Oregon from time to time. Usually, they are caused by one or two large construction projects that overload local mining capacity. Mines can sometimes increase their capacity by adding equipment, but this takes considerable time and money. For the most part, mine capacity is fixed and sudden increase in demand can create local shortages. One way of dealing with such a shortage is to bring in supplies from neighboring markets. Buyers bid up the prices of locally produced aggregate. This makes it practical to ship aggregate in from other markets. To cover the costs of trucking in aggregate another 15 miles, local prices would have to increase about $1.93 a ton. If these costs are all passed down to consumers, the average household would see its cost of living increase by $87.67 a year.za Consumers can delay or change their construction plans because of shortages. Few consumers will react in those ways, however, because aggregate is usually a small part of the total cost of construction. When it does occur, it is usually on projects such as roads and parking lots where aggregate usage is very high. Sometimes, local shortages force contractors to use grades of aggregate they would normally avoid. Projects made with poor-quality aggregate often cost more to build and lack durability. A road made from an inferior grade of crushed rock, for instance, will deteriorate quickly and require more maintenance. Ultimately, more aggregate will be used in the long run. When faced with persistent shortages of local aggregate, builders will pay higher prices for their aggregate and make changes in the way they do construction. This will result in higher construction costs. Some of these costs will be hidden in the forms of higher rents, retail prices, and taxes. Overall, the community's economic competitiveness will suffer. In addition, with plenty of aggregate coming in from other markets, there will be more truck traffic and road congestion in the community. How Competitive Are Aggregate Markets? Competition between aggregate producers is often quite fierce. In most markets around Oregon, competition effectively keeps prices in line with production costs. Mines earn fair rates of return, while consumers pay the lowest sustainable prices for aggregates. That is how competitive markets work, but not all aggregate markets are like that. As noted before, high shipping costs isolate markets and limit competition to local producers. Fortunately, you do not need many producers to have a competitive market. Two or three significant producers (assuming they do not collude) are enough to promote competitive pricing. Competitive pricing is important. It assures that consumers pay prices that reflect production costs, business risks, and fair rates of return. At times when demand is weak, the cost of producing an extra ton of aggregate is low, because there is plenty of extra mining capacity and labor around. Prices mirror this condition and fall. When demand is high, both labor and capacity are running full-out. The cost of supplying an extra ton rises and prices go up. In competitive markets, therefore, prices move up and down with demand. Consumers, over the long run, benefit by getting the most for their money. The economic term for this is efficient pricing. Problems arise when a community has only one mine or if the largest producer has an overwhelming share of the market. In some, but not all, cases where this occurs, the largest producer exercises market dominance. 24 Total aggregate consumption in 1993 was 53,273,017 tons, and there were 1,171,966 households in Oregon. Dividing those two gives us an average consumption of 45.46 tons per household. Using the trucking cost estimates from the "Shipping Costs" section of this report, the incremental costs of trucking a ton of aggregate 15 miles is just under $1.93 a ton. Multiplying that by the tons consumed per household gives us a total of $87.67. 27 A producer takes advantage of market dominance by unilaterally raising prices to levels that are well above normal. In addition, such a producer can make these high prices stick regardless of how much demand there is for aggregate. Other local producers, if there are any, are too small to do anything about it. Meanwhile, mines in neighboring markets are far enough away so that high shipping costs keep them from bringing in aggregate. The result is a monopolistic market structure. Three conditions foster monopolistic structures. First, one producer must have a large share of the market. Second, the product must be hard to substitute. Finally, the dominant producer has to be shielded from new competitors.zs Monopolistic market structures are not necessarily bad. It depends on how the dominant producer is shielded from competition. Some markets are too small to support more than one producer. Others, because of geologic conditions, have just one good aggregate mining site. Wherever these conditions exist, in practical terms, there is room for only one producer. What results is called a natural monopoly. In a natural monopoly, a community usually pays higher prices for aggregate compared to larger competitive markets. However, if the community breaks up its natural monopoly, it will likely be worse off. It would replace one mine with several smaller and less efficient mines. With higher production costs, the smaller mines could end up charging more for their aggregate than the natural monopolist. Monopolistic market structures can be damaging if the dominant producer is protected by an artificial barrier to entry. A barrier to entry is anything that keeps new competitors out of a market. Unlike natural barriers such as small market size and unfavorable geology, artificial barriers have little to do with the business merits of operating a mine. Artificial barriers keep competent and capable producers from establishing themselves in communities where resources and demand are sufficient to support new mines. Typically, the barrier is political. If a dominant producer sets unreasonably high prices, competitors should be attracted to the area. Sometimes, however, communities shield dominant producers from this threat by making it nearly impossible for competitors to establish new mines. Siting a new mine is an expensive, difficult, and uncertain process. Political systems can protect communities from careless or poorly planned mining operations. Such systems, however, can be used to block competent new competitors from entering the market. By being too restrictive, communities create situations, often unintentionally, that let dominant producers charge excessive prices. In more extreme cases, dominant producers will actively engage in predatory exclusionary tactics that can even lead to the corruption and misuse of political institutions .26 If protected by an artificial barrier, a dominant producer can charge prices that are substantially higher than those that would exist under free competition. This type of monopolistic market structure is bad for a community. The excess profit earned by the dominant producer comes at the expense of consumers. The local economy operates less efficiently. Construction costs are higher than they should be. This, in turn, hurts the local business climate and makes housing less affordable. Higher aggregate prices affect government budgets for schools, roads, irrigation districts, and other public construction projects. Total employment suffers. Another characteristic of dominant producers is their tendency to maintain excess capacity. They can control either prices or quantities in local markets, but not both. Typically, they will choose to set prices artificially high. They do this by restricting supply. The producers make more money by operating at a lower level of capacity than they would under competitive conditions. Having extra capacity also allows them to argue that new mines are unnecessary in the community because there is plenty of available capacity for growth. is Chamberlin, E.H., 1962, Theory of Monopolistic Competition, 8th ed. 26 Scherer, F.M., and Ross, David, 1990, Industrial Market Structure and Economic Performance. 28 J There are no simple rules for identifying a monopolistic market structure. The most visible signs show up in prices and market shares. Prices in these markets generally do not fluctuate with changes in demand. They also are unusually high compared to neighboring markets. In all cases, dominant producers have large market shares. A producer may get high prices for reasons that have nothing to do with unfair competition. For instance, a mine may sell a highly desirable and hard-to-find variety of aggregate. The most common reason for high prices, however, is that they are just a reflection of high operating costs. Usually this is due to adverse geological conditions. Many aggregate deposits in Oregon, for example, are rich in clay. The clay has to be removed during processing because it is a harmful constituent to the aggregate. Removing clay is an expensive step. High costs can also exist in small markets because mines do not have the benefits of large-scale production. What Can be Done to Encourage Competitive Pricing? Competitive pricing has both economic and social benefits. Ensuring it can be difficult, however. The best way to encourage competitive pricing is to have several significant producers. This is easier said than done, and in some markets it may be impossible. Yet, there is an alternative way to achieve competitive pricing, even if there is only one producer in a community. A dominant producer who has no fear of attracting new competitors in her or his own market can raise prices up to a level called the limit price. This price is just below what it would cost consumers to buy aggregate from another market and have it shipped in. The limit price places an upper boundary to what a dominant producer can charge. Still, it leaves the community paying a large premium for its aggregate. If the nearest competitive market is 15 miles away, for instance, a dominant producer could charge a premium of up to $1.93 per ton.27 Competitive pricing is least likely in markets where the geology limits a community to one mining site. In this type of natural monopoly a producer cannot be threatened by new competitors because the area has no other comparable mining sites. The producer can use limit pricing. If the community has ways to reduce shipping costs, it can lower the limit price. This may be done by allowing larger trucks on the roads or, if possible, by promoting rail or barge shipments. The community can also strongly advocate recycling. None of these options are particularly strong and they are applicable to few communities. Where natural monopolies are caused by small market size, communities have more leverage. They can pressure their producers by remaining open to the siting of new mines by outside competitors. Having a new competitor enter a small market with natural monopoly would be an extremely unfavorable event for an established producer. For that reason, a monopolist would likely keep prices in line with competitive markets to avoid attracting unwanted competition. In markets where there are no natural monopolies, communities usually have at least two significant and separately owned aggregate mines. We also see markets with just one dominant producer. These producers may have become dominant because they were more efficient than any of their competition. In some cases, they may have bought out competitors. Communities with dominant producers and no natural monopolies are best served if they remain open to siting new mines by other producers. If the community does not do this, the dominant producer could raise prices far above competitive levels without the risk of attracting competition. Policies encouraging competition do not have to lead to the development of new mines. They merely have to create a credible threat of new capacity that the dominant producer cannot control or block. Dominant producers will set prices close to competitive levels if the risk of new competition is great. Otherwise, they can set higher prices. 27 $1.93 is the incremental cost of trucking aggregate an additional 15 miles. This cost is based on the assumptions outlined in the "Shipping Costs" section of this report. 29 Source: http://www.tripadvisor.com/ShowUserReviews-851766-dl576336-r77309205- Tumalo State Park-Bend Oregon.html#REVIEWS Date Printed: June 7, 2011 Tumalo State Park: Traveler Reviews PlanetBub... Northwest '-'4 reviews 9 1 helpful vote "Great campground, but a noisy highway on both sides of the park." Reviewed August 29, 2010 Hey, We often like to camp in state campgrounds because my honey must use a breathing machine at night. The park has many fine points. It's clean, the robins, blue jays (more of a black blue), tiny tweets, and skittish chipmunks. It used to be that all the state parks where out in the countryside, but now they are more often in the city. This campground was wedged between to noisy highways. We had one of the disabled ones because we were way late in finding a state park. We have a disabled sticker on our car. However I wish they would have two in the tent camp place as we don't need all that RV space to park. They need a bit more greenery or plants separating the campsites. The toilets were nice. The solar showers were great, hot, even the ones they had posted as being a bit cooler. Next to the solar showers there is a dish washing station that could also be used for a shaving station. One day I took my shower about 10am and there was still hot water. The park would be great for big family's. The park rangers and hosts were very nice and helpful. Our fire pit was conveniently placed. Across the street is the day area. In the state park system once you pay for a camping pass it's also good in all the day areas. The same with a day area pass. There were several nice swimming holes, slow moving for the kids. Grass to lay your towel on (we took several nice naps in this spot). A large grassy tree shade area. Lots of picnic tables and a great small hike along the river. It was a 100% one day and the river is just this side of freezing. On another day it was down to the late 30's one night, and we decided that we may need more covers or a better sleeping bag. There were also yurts which looked nice. The walk and bike spot looked like most people had a car or motorcycle, and one even had a trailer. Most of the people in our area had motor homes or other things that are towed to sleep in, and several tents. I'd go here again. We also visited Tumalo Falls and a very cool place where a person make a lot of stuff out of rocks that were cleared from his farming. Low cost donation and laid back people also make it nice. It's on the old 97 almost to Redmond if your coming from Bend. The moon was full which made it all the more fun to sit around the campfire at night. Past Bend going south is a road that goes out to the national forest. It has all sorts of swimming, boating and other water features. The picture of this camping space shows a different place because there are no rapids here. PlanetBubblesUniverse Was this review helpful? Yes XhjHt -3 1 Source: http://www.tripadvisor.com/ShowUserReviews-g51766-dl576336-r77309205- Tumalo State Park-Bend Oregon. html#REVIEWS Date Printed: June 7, 2011 Ask PlanetBubbles about Tumalo State Park This review is the subjective opinion of a TripAdvisor member and not of TripAdvisor LLC. Report neverstop... Vancouver, Washington 58 reviews 199 helpful votes "Close to Bend and convenient" Reviewed November 2, 2009 person found this review helpful If you want to camp near Bend and have showers, yurts, and hookups, this is the place for you. We stayed in a yurt there for a week last June and we had a great time seeing some of the sights and hiking some of the trails near Bend. The park is located by the Deschutes River and there are hiking trails on both sides of the river both up and downstream from the park, although none go on for a real great distance. Some of our destinations during that week included Smith Rock State Park (see my separate review), Cove Palisades State Park, Shevlin Park, the Upper Deschutes River Trail, and Boyd Cave, a do-it-yourself cave on China Hat Road southeast of Bend. One of the more unusual destinations was Peterson Rock Garden, which is just a few miles away. There, a retired man built all kinds of cool things out of colored rocks all over his yard. It must be seen to be believed. Tumalo State Park probably gets a little hot during the summer and it may be better to camp at a higher elevation at that time of year. For the shoulder seasons, however, it can't be beat. The main drawback to Tumalo SP is traffic noise from the nearby roads, which can get pretty loud 2 problem with review Source: http://www.tripadvisor.com/ShowUserReviews-851766-dl576336-r77309205- Tumalo State Park-Bend Oregon.html#REVIEWS Date Printed: June 7, 2011 when motorcycles go by. if you want cooler and quieter, try La Pine State Park, about 45 min. south. During our June stay at Tumalo, it rained back in PortlandNancouver, but we got almost none at the park, so you do have a better chance of staying dry there. If you are there on Sunday and would like to attend church, Tumalo Community Church is a great place to attend, with very friendly people. It's located in the nearby town of Tumalo. Broken Top Homes for Sale, Deal Estate Agent, Realtor Page 1 of 2 i MARTHA HENDRICK REALTY Broken Top BROKEN TOP What Happening Around Bend Oregon? MarthaKnuws.com Click Here for Bend Roof Estate and Community Mfamation. Follow Us On: Broken Top Homes for Sale For people looking to live in a beautiful community with active residents, there is Broken Top Club. This golf community encourages neighbors to get out and stay active in their neighborhood and in the Bend community. As one of the area's most reputable golf communities in Central Oregon, Broken Top Club may be the home you have always dreamed of for you and your family. Broken Top Club features an award-winning golf course designed by Tom Weiskopf and Jay Morrish. Golfers at every skill level will appreciate the meticulous course no matter how many strokes it takes to get from the tee to the green. Designed to provide a fair but challenging round, players can enjoy a relaxed game with friends or invite a competitive neighbor onto the course for a friendly one-on-one. Broken Top Club also offers an extensive practice facility for golfers to hone their skills that includes two practice bunkers, a chipping area, and plenty of well-defined targets at various distances on the range. An18-hole putting course, mowed and rolled to exact course specifications, allows players to perfect their short game, while PGA professionals on staff for lessons and clinics. The Broken Top clubhouse has a pro shop and recreational facilities for the whole family. Residents of Broken Top Club take pride in being involved in their community and gather to participate in various activities. Whether it is fly fishing on the community's two-acre take, or grabbing a quick bite to eat at the restaurant, there is much to do at Broken Top Club. Two swimming pools and a playground entertain neighborhood children, and it is not uncommon to see a group of people on their way to bike, hike and ski. Youth golf and tennis lessons are also available. Many more activities can be found in Bend and Central Oregon. Broken Top Club offers a diverse array of single family homes and townhomes. Residents enjoy panoramic views of the surrounding wilderness without leaving behind the convenience of living near Bend. Whether you are looking to raise a family or retire, Broken Top Club welcomes you new residents with open arms. Once you call this charming community home, don't be surprised to receive an invitation to meet on the first tee at early tight. For more information about Broken Top, visit www.BrokenTop.com. Looking for homes for sale in Broken Top? Find Broken Ton homes for sale by searching the local listings database for access to listings in Broken Top and other golf course communities. Whether you want to buy or sell real estate in Bend, you can browse through properties or find a wide variety of real estate resources available on this website. Broken Top Real Estate Broker If you are looking for a REALTOR@ for Broken Top, choose Martha Hendrick. As your Broken Top real estate broker, Martha Hendrick can assist you with all of your home buying and selling needs. She can provide you with access to the local listings database and offer her experience and knowledge to make the home buying or selling process easier for you and your family. Contact Martha Hendrick today to get your home search started! Home Property Search Free Email Updates Featured Listings Bend The Bend Lifestyle Photo Gallery West Side Communities Golf Communities New Homes Luxury Homes Buyer Resources Seller Resources Area Links Meet Martha Contact Me Martha Hendrick Principal Broker, CRS, ABR Licensed in the State of Oregon Martha Hendrick Realty 2681 NW Havre Ct. Bend, OR 97701 Direct: 541.815.8300 Fax: 888.757.7076 Email: martha Lzhendrick.com POWER Real Estate Website Design a - ° - ~ http://hendrick.com/broken_top 6/9/2011 S I E M E N S & AS S O C I A T E S Latham Excavation, Inc. June 7, 2011 84 SE 5`h Street #100 Project No. 111020 Bend, Oregon 97702 Attention: Cougar Caverhill, Pat McClain Project: Johnson Road Pit, Site 303 Tumalo, Oregon Subject: Geotechnical Reconnaissance: Headwall Fugitive Dust Potential Dear Cougar and Pat, We understand that concerns have been raised about fugitive dust generated from various sources at Johnson Road Pit. One of these sources is reported to be the steep cut exposure of Tumalo Tuff and Bend Pumice known as the headwall. We have recently reviewed the condition and conclude that the headwall is a very unlikely source of fugitive dust and would not benefit from mitigation or treatment. We are of this opinion for several reasons: 1. These exposures were created many years ago and since that time, the surface has developed a "work hardened" condition. That is, fine grained particles that were loosened at the time of excavation have long since been removed by wind, water and time. Initially, the freshly exposed surface offers a limited dust potential; however, owing to the cemented nature of the formation (caused by heat and pressure as it was formed), the undisturbed materials naturally resist wind erosion once the loose surface particles are removed. After that, there is no need for continued dust abatement measures. 2. The headwall exposure comprises a fairly small part of the site's surface area and since it stands vertical, the surface remains undisturbed. 3. Similar headwall cuts remnant from past pumice mining and excavation are present in Central Oregon and we are not aware of similar dust concerns even though at least one of these cuts (along the 8`h Fairway at Broken Top) is situated in a residential neighborhood. Other, similar exposure Siemens & Associates siemens@bendcable.com Bend, Oregon office: 541-385-6500 19134 River Woods Drive, 97702 fax: 503-296-2271 Johnson Road Pit: Headwall Fugitive Dust Potential Tumalo, Oregon Project Number 111020 Siemens & Associates include cuts along O.B. Riley Road (Tumalo Market Road), Bailey Road, Shevlin Park Road, Cinder Butte Road and areas west of Summit High School. The following photograph shows the original, vertical excavation marks through the Tumalo Tuff and the Bend Pumice. After many years of exposure, these marks remain; they have not been eroded away by the forces of wind. In our view, this is a testament to the resistive nature of the formations and evidence that the materials of the headwall are not readily reworked to become fugitive dust. Dust Mitigation Dust potential at new headwall or similar exposure of the Tumalo Tuff and Bend Pumice can easily be managed to a stable condition simply by spraying water on the fresh surface to remove loose particles shortly after exposure. A similar stabilizing process will happen naturally; however, not until a rainstorm or windstorm promotes removal of the loose particles. Once this occurs, there is no need for continued treatment of these hardened surfaces. When materials are moved to stockpile, the inherent strength is lost and the potential for fugitive Siemens & Associates page 2 Bend, Oregon Johnson Road Pit: Headwall Fugitive Dust Potential Tumalo, Oregon Project Number 111020 Siemens & Associates dust generation is elevated. Other soils such as common topsoil present similar potential for fugitive dust. Mitigating dust from these sources is a common challenge in every mining operation and the situation is traditionally managed by routine application of moisture as needed, covering of stockpiles and vegetation of surfaces for lower maintenance, longer term treatment. These are simple operational procedures that are effective. We appreciate the opportunity to provide this commentary and would be delighted to expand any of the topics as necessary. If you have any questions, just ask. Respectfully submitted, 51i;4wans & Associates n r w Siemens, P.E., G.E. ws 6/30/2012 3 hard copy I Renews: 6/30/2011 1 Siemens & Associates page 3 Bend, Oregon June 9, 2011 Pat McClain Latham Excavation 84 SE 5th Street Bend, Oregon 97702 RE: Johnson Road Pit Dear Pat, I am writing this report to provide information about the staking that I did at Johnson Road Pit between May 24th and May 26th of this year. With your request David Evans and Associates, Inc. provided two AutoCAD drawing files with information they had in their records from work they had done for Latham Excavation in the past. One drawing file, SVBSX-MCLA0016.DWG, contained survey control and the other file, PLBSX-2-MXLA00 I 6.DWG, contained site layout information over the aerial photo with contour mapping. You also provided two paper copies of drawing file, PLBSX-2-MXLA0016.DWG, plotted on February 19, 2008. I verified the control points, set by David Evans and Associates, Inc. that I used against other control points found on-site, with no outstanding errors, and established additional control where needed. I calculated the easterly mining limits from scaled distances on the paper plot you provided. I staked the north end at 720 feet west of the easterly property boundary and the south end at 850 feet west of the easterly property boundary with a 225 radius arc connecting them. I set stakes at elevation 3415.0 to establish the southern mining limits, except for the southwest comer was set at 3410.0 because of a drop in elevation of the natural ground at this corner of the property. I set stakes along the top of the low ridge, west of the current pit, by field surveying to establish the high point of the ridge. I set only a few stakes along the northern mining limits, per your request, since there are property line stakes along the north boundary of the property and a fence that roughly follows the property line. The mining limits along the north are 100 feet south of the north property line. We found stakes to locate the northeast and southeast processing sites on my first site visit with you. I staked the southwest processing site including references. I shot the top of the pumice layer at both ends with an elevation of 3338 on the east end and 3345 on the west end. If you have any questions or need any additional information please let me know. Respectfully submitted, Jerry C. Powell, P.L.S. Copy: Bruce White, Attorney REGISTERED PROFESSIONAL LAND SURVEYOR OREGON JULY 18, 1980 JERRY C. 1P~ OWELL 1 00 RENEWS 12 - 31 - 2012 Jerry C. Powell, Surveyor 23030 Donna Lane, Bend, Oregon 97701 Phone: 541-382-2955, Cell 541-678-2899 Email: jerrycpowell@live.com Site Number 303, Township 17, Range 12 Commissioners (Board) October 26, 1989, the site. By adoption of confirms and ratifies ESEE Findings and Decision Site No. 303 occupying a portion of tax lot 300 in Section 7, came before the Board of for hearing on August 9, 1989. On Board made a preliminary decision on this these findings and this decision, the Board that preliminary decision. 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 0". (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. The west half of the site is primarily natural with juniper tree and some sagebrush. There are two small pumice quar- ries 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 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 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 o~. _ 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 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 MUA 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 S_ 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 01-1460 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 046A. 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 4a` 2 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. 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 13. Relative Values of the Conflicting 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. 303 164 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 some 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 r- 04165 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 (a) and (b) from the paragraph 13 above; (b) Existing conflicting residential uses are important in that the "represent an economic commitment to occupa- tion ano~aevelopment 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 AG J (c) The use at Tumalo Park and sites along the Deschutes River are 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 0,14i, -1 0 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 =z<7 0 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 w 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 04.69 Chapter 18.52. SURFACE MINING ZONE - SM 18.52.010. Purpose. 18.52.020. Application of Ordinance. 18.52.030. Uses Permitted Outright. 18.52.040. Uses Permitted Outright Subject to Site Plan Review. 18.52.050. Conditional Uses Permitted. 18.52.060. Dimensional Standards. 18.52.070. Site Plan Review. 18.52.080. Site Plan Application. 18.52.090. Minimum Use Setbacks. 18.52.100. Procedure Upon Filing of Site Plan. 18.52.110. General Operation Standards. 18.52.115. Extended Operating Hours. 18.52.120. Partial Approval. 18.52.130. Site Reclamation Plan. 18.52.140. Conditional Use Criteria. 18.52.150. Failure to Comply. 18.52.160. Preexisting Sites, Nonconforming Sites and Registration. 18.52.170. Use Permits. 18.52.180. Monitoring. 18.52.190. Nuisances. 18.52.200. Termination of the Surface Mining Zoning and Surrounding Surface Mining Impact Area Combining Zone. 18.52.010. Purpose. The purposes of the Surface Mining Zone are: A. To implement the goals and policies of the Comprehensive Plan; B. To allow the development and use of identified deposits of mineral and aggregate resources consistent with Statewide Planning Goal 5; C. To protect the health and safety of the public and of residents of property adjoining surface mines, and the value of uses and natural resources identified in the Comprehensive Plan as conflicting with surface mines, subject to Goal 5; D. To provide that all land and water resources affected by surface mining operations within the County receive the protection and reclamation necessary for their intended subsequent use; and E. To provide for cooperation between private parties and governmental entities in order to carry out the purposes of DCC 18, the Comprehensive Plan and state and federal regulations. (Ord. 90-014 §4,1990) 18.52.020. Application of Ordinance. Except as provided in DCC 18.52.160, the setbacks, operation standards and conditions set forth in DCC 18.52.090, 18.52.110 and 18.52.140, respectively, apply to every surface mining site and activity to the extent that setbacks, standards and conditions are not expressly provided for in the site-specific ESEE analysis within the surface mining element of the Comprehensive Plan. When there is a conflict between the site-specific ESEE analysis and the provisions of DCC 18, the site-specific ESEE analysis shall control. (Ord. 90-014 §4, 1990) Chapter 18.52 1 (11/2009) 18.52.030. Uses Permitted Outright. The following uses and their accessory uses are permitted outright: A. Farm uses as defined in DCC 18. B. Forest uses as defined in DCC 18. C. One temporary or portable residence when necessary to house a caretaker or a night watchman. D. Land Disposal Site as defined in DCC 18 for which the operator possesses a valid DEQ permit on the effective date of Ordinance No. 92-066. E. Class I and II road or street project subject to approval as part of a land partition, subdivision or subject to the standards and criteria established by DCC 18.116.230. F. Class III road or street project. G. Operation, maintenance, and piping of existing irrigation systems operated by an Irrigation District except as provided in DCC 18.120.050. (Ord. 2001-039 §4, 2001; Ord. 2001-016 §2, 2001; Ord. 93-043 §7, 1993; Ord. 92-066 §2, 1992; Ord. 91-020 § 1, 1991; Ord. 90-014 §4, 1990; Ord. 86-059 § 1, 1986) 18.52.040. Uses Permitted Outright Subject to Site Plan Review. The following uses are permitted outright subject to site plan review as provided in DCC 18.52.040: A. Extraction of minerals. B. Stockpiling and storage of minerals. C. Screening, washing and sizing of minerals. D. Sale of minerals and mineral products extracted and produced on the parcel or contiguous parcels in the same ownership. E. Buildings, structures, apparatus, equipment and appurtenances necessary for the above uses to be carried on. (Ord. 90-014 §4, 1990) 18.52.050. Conditional Uses Permitted. A. The following uses are permitted subject to the conditions set forth in DCC 18.128: 1. Public uses consistent with or dependent upon outright uses allowed in the SM zone. 2. Operations and exploration of geothermal resources. 3. Excavation, grading and fill and removal within the bed and banks of a stream or river or in a wetland subject to DCC 18.120.050 and 18.128.270. 4. Construction, expansion and operation of a Disposal Site as defined in DCC 18, for which the operator possesses a valid DEQ permit on the effective date of Ordinance No. 92-066 for a Land Disposal Site. 5. Wireless telecommunications facilities that are necessary to be sited in the SM Zone for the public service to be provided. 6. Water storage facilities, owned or operated by a public, private or cooperative water company for the distribution of water, where such placement will not interfere with or be detrimental to the mining of the resource. 7. Surface mining of mineral and aggregate resources in conjunction with the operation and maintenance of irrigation systems operated by an Irrigation District, including the excavation and mining for facilities, ponds, reservoirs, and the off-site use, storage, and sale of excavated material. B. The following uses are permitted subject to site plan review and the setbacks, standards and conditions set forth in DCC 18.52.090, 18.52.110 and 18.52.140, respectively, and are not subject to the conditions in DCC 18.128: 1. Expansion or replacement of a preexisting legal dwelling. Chapter 18.52 2 (11/2009) 2. Crushing of mineral and aggregate materials on sites designated for crushing in the ESEE analysis in the surface mining element of the Comprehensive Plan. 3. Sale of minerals and mineral products extracted or produced on parcels other than the subject parcel or contiguous parcels in the same ownership. 4. Batching and blending of mineral and aggregate into asphaltic concrete or Portland Cement Concrete. (Ord. 2001-039 §4, 2001; Ord. 2001-020 §1, 2001; Ord. 97-063 §3, 1997; Ord. 95-046 §2, 1995; Ord. 92-066 §3, 1992; Ord. 91-038 §1, 1991; Ord. 90-014 §4, 1990) 18.52.060. Dimensional Standards. In the SM Zone, no existing parcel shall be reduced in size and no additional parcels shall be created by partition, subdivision or otherwise. (Ord. 90-014 §4, 1990) 18.52.070. Site Plan Review. Site plan review and final approval of a site plan shall be required before the commencement of any use which requires site plan review under DCC 18.52.040 and 18.52.050(B), and before any expansion of a preexisting or nonconforming site under DCC 18.52.160. (Ord. 90-014 §4, 1990) 18.52.080. Site Plan Application. The applicant shall submit the following information for site plan review and approval: A. An application in a format established by the County and satisfying all requirements of Title 22, the Deschutes County Developmental Procedures Ordinance. B. All information required for a site reclamation plan by DOGAMI. C. A map or diagram showing that all minimum use setbacks required in DCC 18.52.090 are met. D. A description of how all operation standards set forth in DCC 18.52.110 are met. E. 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. (Ord. 95-075 § 1, 1995; Ord. 90-014 §4, 1990) 18.52.090. Minimum Use Setbacks. A. Except as otherwise provided in DCC 18.52.090, all surface mining activities and uses, including structures, shall be located and conducted at least 250 feet from a noise-sensitive or dust-sensitive use or structure. Exceptions to this standard shall be allowed for the following: 1. Access roads approved as part of site plan review. 2. Dwellings located on the parcel on which the surface mining is to occur, including replacements or expansions thereof. 3. Pursuant to a written agreement for a lesser setback made between the owner of the noise-sensitive or dust-sensitive use or structure located within 250 feet of the proposed surface mining activity and the owner or operator of the proposed surface mine. Such agreement shall be notarized and recorded in the Deschutes County Book of Records and shall run with the land. Such agreement shall be submitted and considered at the time of site plan review or site plan modification. B. Storage and processing of mineral and aggregate material, and storage of operational equipment which creates noise and dust, shall not be allowed closer than one-quarter mile from any noise or dust sensitive use or structure existing on the effective date of Ordinance No. 90-014, unless the applicant demonstrates that: Chapter 18.52 3 (11/2009) 1. Due to the parcel size, topography, existing vegetation or location of conflicting uses or resources, there is no on-site location for the storage and processing of material or storage of equipment which will have less noise or dust impact; and 2. All noise control and air quality standards of DCC 18 can be met by the proposed use for which the exception is requested. C. Additional setbacks may be determined as part of the site reclamation review process. Additional setbacks also may be required by DOGAMI. D. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. (Ord. 94-008 §20, 1994; Ord. 90-014 §4, 1990) 18.52.100. Procedure Upon Filing of Site Plan. A. Each application for site plan review and approval shall be processed subject to DCC 22, the Uniform Development Procedures Ordinance. B. The Planning Director or Hearings Body shall review the site plan application and shall grant or deny site plan approval based on the proposed site plan's conformance with the ESEE analysis for the site contained in the surface mining element of the Comprehensive Plan and the applicable setbacks, standards and conditions set forth in DCC 18.52.090, 18.52.110 and 18.52.140, respectively. The Planning Director or Hearings Body may require the applicant to make such modifications to the site plan as are necessary to fulfill the requirements of the site-specific ESEE analysis and the applicable setbacks, standards and conditions in DCC 18. The Planning Director or Hearings Body shall not deny site plan approval unless the requirements of the ESEE analysis and setbacks, standards and conditions of DCC 18 are not or cannot be satisfied by the proposed site plan. C. To the extent practicable, the Planning Director or Hearings Body shall review the site plan application in conjunction with the review of the applicant's site reclamation plan by DOGAMI. (Ord. 90-014 §4, 1990) 18.52.110. General Operation Standards. Prior to the start of any surface mining activity and no later than site plan review if such review is required under DCC 18.52.110, the applicant shall demonstrate that the following standards are or can be met by the surface mining operation: A. Access. 1. All on-site roads used in the mining operation, and access roads from the site to a public road maintained by a government agency, are designed and constructed to accommodate the vehicles and equipment which will use them, and shall meet the following minimum standards: a. All access roads within 100 feet of a paved County road or state highway are paved unless the applicant demonstrates that other methods of dust control, including application of oil or water, will be implemented in a manner which provides for the safety and maintenance of the County road or state highway. b. Roads within the surface mining parcel which are used as part of the surface mining operation are constructed and maintained in a manner by which all applicable DEQ standards for vehicular noise control and ambient air quality are or can be satisfied. c. All roads used for mining are paved and will be adequately maintained at all points within 250 feet of a dwelling or other dust-sensitive use existing on the effective date of Ordinance No. 90-014. 2. Improvements or fees in lieu of improvements of public roads, County roads and state highways may be required when the Planning Director or Hearings Body, in consultation with the appropriate road authority, determines that the increased traffic on the roads resulting from the surface mining activity will damage the road sufficiently to warrant off-site improvement. If a fee in lieu of Chapter 18.52 4 (11/2009) improvements is required, the amount of the fee shall reflect the applicant's prorate share of the actual total cost of the capital expenditure of the road construction or reconstruction project necessitated by and benefiting the surface mining operation. Discounts for taxes and fees already paid for such improvements, such as road taxes for vehicles and for property already dedicated or improved, shall be applied. B. Screening. 1. The site is screened to meet the standards specified in DCC 18.52.110(B)(2), unless one of the exceptions in DCC 18.52.110(B)(6) applies. 2. Performance Standard. When screening is required by DCC 18.52.110(B)(1), it obscures the view of the screened uses from the protected uses with the methods and to the extent described in DCC 18.52.110(B)(5). 3. Protected Uses. a. Noise-sensitive or dust-sensitive uses existing on the effective date of Ordinance No. 90-014. b. Public parks and waysides. c. Frontage on roads designated by the Comprehensive Plan as collectors, arterials and highways. d. Areas zoned Landscape Management Combining. e. Those portions of state and federal scenic waterways from which the surface mining activity is visible from the perspective of a person standing at the high water mark on either bank of the waterway. 4. Screened Uses. a. All equipment stored on the site. b. All crushing and processing equipment. c. All excavated areas except: Areas where reclamation is occurring; roadways existing on the effective date of Ordinance No. 90-014; new roadways approved as part of the site plan; material excavated to create berms; and material excavated to change the level of the mining site to an elevation which provides natural screening. 5. Types of Screening. a. Natural Screening. Existing vegetation or other landscape features which are located on the surface mining site within 50 feet of the boundary of the site, and which obscure the view of the screened uses from the protected uses, shall be preserved and maintained. b. Supplied Screening. Supplied vegetative screening is screening not already existing and which is added to the site, such as hardy plant species. Plantings shall not be required to exceed either a density of six feet on center or a height of six feet at the commencement of mining. Supplied earthen screening shall consist of berms covered with earth and stabilized with ground cover. 6. Exceptions. Supplied screening shall not be required when and to the extent that any of the following circumstances occurs: a. The natural topography of the site offers sufficient screening to meet the performance standard in DCC 18.52.110(B)(2). b. Supplied screening cannot meet the performance standard in DCC 18.52.110(B)(2) due to topography. c. The applicant demonstrates that supplied screening cannot reliably be established or cannot survive for a 10 year period due to soil, water or climatic conditions. d. Screened uses that are visible from the protected uses will be concluded and will either be removed or reclaimed within 18 months. e. The surface miner and the owner or authorized representative of the owner of the protected use execute and record in the Deschutes County Book of Records a mitigation agreement that waives screening requirements and describes and adopts an alternate program or technique. 7. Continued Maintenance. Vegetative screening shall be maintained and replaced as necessary to assure the required screening throughout the duration of the mining activity. Chapter 18.52 5 (11/2009) C. Air Quality. The discharge of contaminants and dust created by the mining operation and accessory uses to mining does not exceed any applicable DEQ ambient air quality and emissions standards. D. Erosion Control. Sedimentation and erosion resulting from the mining operation does not affect any perennial stream so as to violate DEQ's water quality standards. E. Streams and Drainage. Unless agreed to, in writing, by the adjoining property owner(s), existing natural drainages on the site are not changed in a manner which substantially interferes with drainage patterns on adjoining property or which drains waste materials or waste water onto adjoining property or perennial streams. Where the surface mining site abuts a lake, perennial stream or other perennial body of water, all existing vegetation within 100 feet of the mean high water mark shall be retained unless mining activity is allowed within this area by the site-specific ESEE analysis in the surface mining element of the Comprehensive Plan. F. Equipment Removal. All surface mining equipment and related structures will be removed from a mining site within 30 days of completion of all mining and reclamation. G. Flood Plain. Any mining operations conducted in a flood plain, as defined in DCC 18, will satisfy all applicable conditional use criteria of DCC 18.96.030 through 18.96.060. H. Noise. Noise created by a mining operation, vehicles, equipment or accessory uses which is audible off the site does not exceed DEQ noise control standards, due to topography or other natural features, or by use of methods to control and minimize off-site noise, including, but not limited to: Installation of earth berms; placing equipment below ground level; limiting hours of operation; using a size or type of vehicle or equipment which has been demonstrated to meet applicable DEQ noise control standards; relocation of access roads, and other measures customarily used in the surface mining industry to meet DEQ noise standards. 1. Hours of Operation. 1. Mineral and aggregate extraction, processing and equipment operation is limited to the following operating hours: a. Surface mining sites located within one-half mile of any noise-sensitive or dust-sensitive use or structure existing on the effective date of Ordinance No. 90-014: 7:00 a.m. to 6:00 p.m. - Monday through Friday and 8:00 a.m. to 5:00 p.m. - Saturday. b. All other sites: 7:00 a.m. to 10:00 p.m. - Monday through Saturday. 2. No surface mining activity shall be conducted on Sundays or the following legal holidays: New Year's Day, Memorial Day, July 4th, Labor Day, Thanksgiving Day, Christmas Day. J. Drilling and Blasting. 1. Drilling and blasting are allowed under the site-specific ESEE analysis in the surface mining element of the Comprehensive Plan. 2. Drilling and blasting which are to be conducted within one-half mile of any noise-sensitive or dust-sensitive use or structure or agricultural use involving the raising of animals meet or can meet the following standards: a. DEQ noise standards for drilling and blasting. b. A plan addressing the potential for earth movement, flying rocks and other effects on surrounding uses has been submitted to and approved by the County. c. Blasting will be restricted to the hours of 9:00 a.m. to 5:00 p.m., Monday through Friday, and no blasting will occur on Saturdays, Sundays or legal holidays identified in DCC 18.52.110(I)(2). d. A plan has been submitted to and approved by the County describing how the operator will notify the owners and inhabitants of the protected uses identified in DCC 18.52.110(J)(2), which are located within one-half mile of the blasting site of proposed blasting by written notice: i. Delivered in a manner calculated to be received by each person entitled to notice at least 48 hours prior to the time the blasting activity will occur; Chapter 18.52 6 (11/2009) ii. Containing a statement providing that the recipient property owner must provide the notice to tenants and inhabitants on the subject property; iii. In the case of ongoing blasting, given at least once each month and specifying the days and hours that blasting will occur; and iv. Retained by the operator, along with a list of persons notified, for at least one year after blasting occurs. K. Extraction Site Size. The size of the area in which extraction is taking place as part of a surface mine does not exceed five acres. For the purpose of DCC 18, the extraction site size does not include access roads, equipment storage areas, processing equipment sites, stockpiles, areas where reclamation is in progress and similar accessory uses which are necessary to the mining operation. An exception to this standard may be allowed as part of site plan review if the applicant demonstrates that mining techniques normally associated with the specific type of mining in question and commonly used in the surface mining industry require a larger extraction site size. L. Fish and Wildlife Protection. 1. Fish and wildlife values and habitat required by the site-specific ESEE analysis to be conserved and protected are conserved and protected by use of methods including, but not limited to: Seasonal operations and access road closures; retention of or creation of vegetative cover and riparian habitat; and erection of fencing or other barriers to protect wildlife from steep extraction site slopes. 2. Mitigation, as defined in DCC 18, will be provided to compensate for any loss of fish and wildlife habitat caused by the surface mining activity which habitat is required to be protected by the site-specific ESEE analysis. When mitigation is provided, the type and effectiveness of mitigation required has been determined by the Planning Director or Hearings Body to be appropriate from available evidence and in consultation with the Oregon Department of Fish and Wildlife. M. Surface water management is provided in a manner which meets all applicable DEQ water quality standards and DOGAMI requirements, and which demonstrates that all water necessary for the proposed operation of the surface mine, including dust control, landscaping and processing of material, has been appropriated to the surface mining site and is legally available for such use. The applicant must provide written documentation of any water rights from the respective water district and Oregon Watermaster's office prior to any mining of the site. N. Storage of equipment, structures and other materials at the site is limited to that which is necessary and appurtenant to the mining operation or other uses permitted on the site. 0. A security plan for the subject site has been submitted and approved by the County and, where appropriate, by DOGAMI which addresses the following issues: 1. Lighting; 2. Fencing; 3. Gates at access points; 4. Water impoundments; 5. Sloping; and 6. Security of vehicles and equipment. 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. (Ord. 95-075 §1, 1995; Ord. 93-043 §§7A, 7B and 7C, 1993; Ord. 91-002 §1, 1991; Ord. 90-014 §4, 1990) 18.52.115. Extended Operating Hours. Notwithstanding the limitations set forth in an approved site plan for surface mining or the limitation on hours of operation set forth in DCC 18.52.110(I), a special operating permit for extended hours of operations at a mining site may be approved when the Planning Director or Hearings Body finds that an applicant demonstrates that: Chapter 18.52 7 (11/2009) A. Project Necessity. Extended hours of operation are necessary to construct capital improvements and other specific public roadway improvements, including but not limited to public safety operations, road widening, paving, surfacing and realigning, where practical difficulties not created by the applicant such as transportation management requirements necessitate project construction and operation of equipment outside the hours specified in DCC 18.52.110(I) or otherwise set forth in a surface mining site plan; B. Equipment Limitation. During the extended hours of activity, operations at the mining site shall include only those uses allowed under DCC 18.52.040 and, when already approved as a conditional use, those uses listed in DCC 18.52.050, including vehicular traffic, and shall be limited to the minimum necessary to complete the project; and C. Time Limitation. Except as provided in (D) below, activities approved under DCC 18.52.115(B) shall not exceed a period of 14 days but may be renewed for successive periods not exceeding three days each if the extension is necessary to complete the roadway or capital improvement project; and transportation management concerns or unique project characteristics justify the extension. D. Public safety operations. 1. Public safety operations are those operations permitted under DCC 18.52.040 that are required to respond to a road hazard or incident such as snow, ice, a vehicle crash or other road blockage such as a tree, power line, fire, or animal. 2. Public safety operations are exempt from the time limitations imposed by DCC 18.52.115(C) and 18.52.110(I), provided that the noise and air quality standards of DCC 18.52.110 are met at all times. E. Noise Control. Activities permitted under DCC 18.52.115 are subject to DCC 8.08.090(D). (Ord. 2009-026 §1, 2009; Ord. 98-038 §1, 1998) 18.52.120. Partial Approval. A portion of a parcel may be approved for surface mining, stockpiles or processing without site plan review of the entire parcel. Partial approval shall be granted if the applicant demonstrates that the following criteria are or can be met: A. The portion of the parcel receiving approval can be mined and reclaimed separately from the remainder of the site; and B. The plan for the portion of the site satisfies all requirements for site plan review; and C. All surface mining site plan and reclamation requirements of the County and DOGAMI for the approved portion of the site are completed prior to the start of mining on the remainder of the property. Initial seeding in conformance with a reclamation plan shall be deemed adequate to fulfill the completion portion of DCC 18.52.120. (Ord. 90-014 §4, 1990) 18.52.130. Site Reclamation Plan. Prior to the start of mining activity, a site reclamation plan shall be submitted and approved which demonstrates that the mineral and aggregate extraction site can be reclaimed for a subsequent beneficial land use consistent with the designation of such subsequent use in the surface mining element of the Comprehensive Plan. A. When a site reclamation plan is required by DOGAMI, the site reclamation plan shall be approved by DOGAMI. To the extent practicable, review of the site reclamation plan shall be conducted jointly between DOGAMI and the County. B. When a site reclamation plan is not required by DOGAMI, the site reclamation plan shall be approved by the County in conjunction with the site plan review described in DCC 18.52.070. The County shall review such site reclamation plans for consistency with the site-specific ESEE analysis in the surface mining element of the Comprehensive Plan and the standards and conditions set forth in DCC 18.52.110 Chapter 18.52 8 (11/2009) and 18.52.140. The County also shall follow the applicable DOGAMI standards and criteria for a site reclamation plan. (Ord. 90-014 §4, 1990) 18.52.140. Conditional Use Criteria. The criteria set forth in DCC 18.52.140 shall be the only conditional use criteria applicable to the surface mining activities described below. Compliance with these criteria shall be demonstrated at the time of site plan review. A. Crushing. When a site has been designated for crushing of mineral and aggregate materials under the site-specific ESEE analysis in the surface mining element of the Comprehensive Plan, the following conditions apply: 1. If a crusher is to be located less than one-half mile from a noise-sensitive use or structure existing on the effective date of Ordinance No. 90-014, the applicant shall demonstrate through a noise report from a qualified, registered sound engineer or similarly qualified professional, that the crusher can meet all applicable DEQ industrial and commercial noise control standards as designed and located, or by methods including, but not limited to: Modification or muffling of the crusher; placement of the crusher below grade or behind berms. 2. If a crusher is to remain on the site for longer than 60 days in any 18-month period, the applicant shall demonstrate that it will be screened in accordance with DCC 18.52.110(B). B. Expansion or Replacement of Preexisting Dwelling. The following conditions apply: 1. The expansion or replacement does not reduce the amount of mineral and aggregate resource available on the subject site. 2. The replaced dwelling or expansion is located and designed to minimize the impacts of the surface mining operation on the inhabitants of the dwelling. C. Sale of Products Extracted or Produced on Parcels Other Than the Subject Parcel. The following conditions shall apply: 1. The portion of the site where the products will be stored and sold is at least one-half mile from a noise or dust-sensitive use or structure existing on the effective date of Ordinance No. 90-014. 2. The access from the point where the products are stored and sold to a public road is not within one-half mile of any noise or dust-sensitive use or structure existing on the effective date of Ordinance No. 90-014. D. Processing of Aggregate Into Asphaltic Concrete or Portland Cement Concrete. The following conditions shall apply: 1. If the processing operation meets or can meet all applicable DEQ ambient air quality standards and emission standards for asphalt, asphaltic concrete or portland cement plants. 2. If the processing operation is located less than one-half mile from a noise-sensitive use or structure existing on the effective date of Ordinance No. 90-014, the applicant shall demonstrate through a noise report from a qualified, registered sound engineer or similarly qualified professional, that the processing operation can meet all applicable DEQ noise control standards for industry and commerce as designed and located, or by use of methods including, but not limited to: Modification or muffling of equipment; location of the processing operation below grade or behind berms. 3. The point where the vehicles transporting asphalt, portland cement and the raw materials for such products access a public road is not within one-half mile of any noise-sensitive or dust-sensitive use or structure existing on the effective date of Ordinance No. 90-014. 4. Processing operations temporarily located in conjunction with a specific street, road or highway project will be removed from the site within 30 days of the completion of the project. (NOTE: Batch plants are allowed in industrial zones and may be sited as part of a limited use combining Chapter 18.52 9 (11/2009) zone in conformance with all plan amendment and zone change requirements of the Comprehensive Plan and zoning ordinance.) (Ord. 91-002 §2, 1991; Ord. 90-014 §4, 1990) 18.52.150. Failure to Comply. If the Planning Director or designee determines that surface mining activity which has received site plan approval is not being conducted in compliance with the setbacks, standards or conditions set forth in DCC 18.52.090, 18.52.110 and 18.52.140, respectively, or the site plan, the Planning Director or designee may institute enforcement proceedings to require such compliance. Enforcement may include citing for a violation, injunction proceedings, and any other measures permitted under DCC 18.144. (Ord. 2003-021 §37,2003; Ord. 90-014 §4,1990) 18.52.160. Preexisting Sites, Nonconforming Sites and Registration. A. Except for preexisting and nonconforming sites, DCC 18 shall apply to all surface mining activities which occur on or after the effective date of Ordinance No. 90-014. B. Preexisting Sites. Mineral and aggregate sites which have a valid DOGAMI permit or exemption and/or County permit on the effective date of Ordinance No. 90-014, and which are zoned SM, are "preexisting sites." C. Nonconforming Sites. Mineral and aggregate sites which have a valid DOGAMI permit or exemption and/or County permit on the effective date of Ordinance No. 90-014, and which are not zoned SM, are "nonconforming sites." D. Registration. Operators of all preexisting and nonconforming sites shall register the sites with the Planning Division within 180 days of the effective date of Ordinance No. 90-014. The registration shall include a copy of the operator's permit or exemption and a map or legal description showing the boundaries of the surface mining area covered by the permit or exemption. E. Expansion. 1. Any expansion of the surface mining activity on a preexisting site beyond the boundaries of the surface mining area covered by the DOGAMI permit or exemption or County permit, or any surface mining activity requiring a new DOGAMI or County permit, shall comply with all applicable requirements of DCC 18. 2. Any expansion of the surface mining activity on a nonconforming site beyond the boundaries of the surface mining area covered by the DOGAMI permit or exemption or County permit, or any surface mining activity requiring a new DOGAMI or County permit, shall comply with the provisions of DCC 18.120.010. (Ord. 90-014 §4,1990) 18.52.170. Use Permits. Following site plan approval and prior to starting any surface mining activities on the site, the Planning Director or designee shall physically review the site for conformance with the site plan. When it is determined by the Planning Director or designee that all elements of the approved site plan required for mining have been completed and the reclamation plan has received final approval, the Planning Director or designee shall issue a use permit. No mining activity shall start prior to the issuance of such use permit. (Ord. 93-043 §7D, 1993; Ord. 90-014 §4, 1990) 18.52.180. Monitoring. The Planning Director or designee shall periodically visit the surface mining site to monitor the surface mining operation. If the Planning Director or designee determines that the operation is not in compliance Chapter 18.52 10 (11/2009) with the approved site plan and all setbacks, standards and conditions set forth in DCC 18.52.090, 18.52.110 and 18.52.140, a citation for a violation shall be issued. (Ord. 2003-021 §38,2003; Ord. 90-014 §4,1990) 18.52.190. Nuisances. Violations of the surface mining site plan, or the setbacks, standards and conditions set forth in DCC 18.52.090, 18.52.110 and 18.52.140, respectively, are hereby declared nuisances, and abatement action may be taken as specified in DCC 18.144. (Ord. 90-014 §4, 1990) 18.52.200. Termination of the Surface Mining Zoning and Surrounding Surface Mining Impact Area Combining Zone. A. When a surface mining site has been fully or partially mined, and the operator demonstrates that a significant resource no longer exists on the site, and that the site has been reclaimed in accordance with the reclamation plan approved by DOGAMI or the reclamation provisions of DCC 18, the property shall be rezoned to the subsequent use zone identified in the surface mining element of the Comprehensive Plan. B. Concurrent with such rezoning, any surface mining impact area combining zone which surrounds the rezoned surface mining site shall be removed. Rezoning shall be subject to DCC 18.136 and all other applicable sections of DCC 18, the Comprehensive Plan and DCC Title 22, the Uniform Development Procedures Ordinance. (Ord. 90-014 §4, 1990; Ord. 86-059 § 1, 1986; Ord. 86-018 § 11, 1986; Ord. 85-053 § 11, 1986; Ord. 85-002 §7, 1985; Ord. 83-037 §14, 1983) (Zoning Maps amended by Ord. 93-028 §1, 1993; Ord. 93-026 §l, 1993; Ord. 93-022 §1, 1993) Chapter 18.52 11 (11/2009) BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY REMAND PROCEEDING ON MA-083, CU-07-102 Brief by Eric and Ronna AND SP-07-46; LATHAM EXCAVATION Hoffman in Opposition to the SURFACE MINE SITE NO. 303 Applications (June 13, 2011) LATHAM CANNOT RELY ON THE CASCADE PUMICE SITE PLAN APPROVAL IN SP-95-10 AS A BASIS FOR ITS OPERATIONS Latham Excavation is suggesting that it may continue mining the site and enlarging the headwall on the basis of the County's approval of the Cascade Pumice site plan in SP-95-10. That is not correct. That land use approval is no longer applicable and has been superseded by the Applicant's actual operations of the site. It was based on operations and conditions fundamentally different from what Latham is doing and proposing. First of all, there is no approval in SP-95-10, just as there is no approval in the ESEE, for the mining of tuff which Latham has been doing. Additionally, SP-95-10 was based on the reclamation plan of Cascade Pumice which included a requirement of reclaiming and restoring the hillside where there is excavation into the headwall. Latham Excavation has expressly disavowed this reclamation plan and in particular the proposal to restore the slope of the hillside. In fact, Latham Excavation is proposing leaving a much enlarged headwall in perpetuity. Where Latham is proposing significantly different activities in its current land use applications than were addressed in SP-95-10, it cannot claim that anything approved in SP-95-10 can be done by Latham now. Latham cannot expand the nature of operations approved in SP-95-10 or pick and choose between its current application and SP-95-10 as justification for what it is doing on the site. Furthermore, it appears that the scope of the allowed excavation of the headwall approved in the Cascade Pumice decision has already been exceeded. Latham Excavation has previously acknowledged the scope of the approval in SP-95-10 as being: "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." (Latham Excavation 2/19/08 Modification, p. 9) The decision approving the Cascade Pumice land use application refers to the rock rim and plateau as being approximately 60 feet above the proposed mining site. As shown on the Paul D. Dewey, OSB 478178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 2 attached Geologic Profile: B-B' of the mining as presented by Latham Excavation, the headwall cut involving the excavation of tuff already exceeds the 35 feet stated in the Cascade Pumice decision and is closer to the rock rim and plateau than 60 feet. No further excavation of the headwall is allowed under SP-95-10. Finally, Latham has acknowledged that mining has occurred outside the permit area approved in SP-95-10. DATED this 131h day of June, 2011. Respectfully submitted, PAUL D. DEWEY Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 Pau I D. Dewey Attorney at Law 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 fax (541) 383-3470 pdewey@-bendcable.com June 13, 2011 Board of County Commissioners Deschutes County 1300 NW Wall St. Bend, OR 97701 Re: Remand Proceeding on MA-083, CU-07-102 and SP-07-46 (Latham Excavation Surface Mine Site No. 303) Dear Commissioners: I am writing this letter on behalf of Eric and Ronna Hoffman who oppose the Applicant's proposals. Attached to this letter is a series of briefs addressing issues remanded by the Land Use Board of Appeals in its decision of May 17, 2010. These issues include: 1) the need for a new Economic, Social, Environmental and Energy ("ESEE") analysis, 2) screening requirements, 3) location for storage of materials, 4) reclamation, 5) crusher site locations, and 6) headwall and dust impacts. There are two County documents which regulate this site, the comprehensive plan ESEE and the County Code. Where LUBA has determined that the Board's proposed restrictions on mining at this site largely cannot be achieved through the Code but that a new ESEE may be done, the only way for the Board to address all the issues raised in this case is through requiring the Applicant to file for a post-acknowledgment plan amendment to the ESEE. The Hoffmans reserve the right and request the opportunity to respond to whatever remand arguments are made by the Applicant. Very truly yours, PAUL DEWEY PD:ao Enclosures cc: clients BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY REMAND PROCEEDING ON MA-083, CU-07-102 Brief by Eric and Ronna AND SP-07-46; LATHAM EXCAVATION Hoffman in Opposition to the SURFACE MINE SITE NO. 303 Applications (June 13; 2011) NEED FOR NEW ESEE A new Economic, Social, Environmental and Energy ("ESEE") is needed for the proposed mining of the headwall and of the tuff because the original ESEE did not address that. The Board in its 2009 decision in this case ruled that mining the headwall is not within the scope of mining anticipated by the ESEE: "With the exception of the headwall, which is discussed below, the proposed mining is within the scope of mining anticipated by the ESEE." (Emphasis added.) (BOCC Decision, p. 2) This decision by the County was not appealed by Latham and is thus controlling in this case. LUBA additionally confirmed that the original ESEE did not anticipate the headwall and that it did not include the mining of tuff: " fCloncerns about both visual and dust impacts from the mining operation on Deschutes River Scenic Area nearby Tumalo State Park and other nearby uses are a recurring theme in the ESEE analysis. From the parties' arguments there does not seem to be any serious dispute that those impacts could be dramatically increased if mining and removing the tuff produces a much deeper final excavation and larger headwall that will become a permanent fixture of the subject property after reclamation. That potential for increase in the headwall... might justify an amended ESEE Findings and Decision for site 303 that imposes additional restrictions on mining the subject property to provide additional protection for the conflicting uses. The 1990 ESEE Findings and Decision for site 303 do not address the potential impact of mining and removing 3.7 million cubic yards of tuff, creating the possibility of leaving a larger more visible headwall that may continue to produce dust after the site has been reclaimed." (Emphasis added.) (LUBA Decision, pp. 19-20) Additionally, LUBA explained in great detail why Latham's position that it can mine anything at the site is wrong: "We understand Latham to take the position that under OAR chapter 660, division 16, once the subject property is placed on the county's inventory of Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 2 significant mineral and aggregate sites and a program is adopted to allow the subject property to be mined, the county may thereafter issue permits to authorize removal of whatever mineral and aggregate resources are encountered on the site once mining commences, even if significantly more mineral resources and significantly different mineral resources are encountered than were believed to be present when the ESEE Findings and Decision for the subject property were adopted in 1990. We reject that extremely broad view of the legal effect of the county's ESEE Findings and Decision.... Under Latham's view, if the site were later discovered to include a non-inventoried resource such as gold that could be extracted only by a cyanide leaching process that could threaten to pollute the Deschutes River, that non-inventoried resource would nonetheless be treated as a protected Goal 5 resource, and the county might be required to issue permits to mine it under its existing program to achieve the goal, notwithstanding that the county's ESEE analysis did not identify or inventory that resource as a significant Goal 5 resource, did not consider conflicts created by extracting that resource, and did not adopt a program to achieve the goal that balances such conflicts." (LUBA Decision, pp. 12-14) LUBA went on to explain in detail how the ESEE analysis should be done: "The estimated quantity and quality of mineral resources determined to be present on a site play a larger role in the Goal 5 planning process than merely determining whether the resources cross a threshold of significance.... [T]he county ...must decide whether and to what extent to limit both ...the Goal 5 resource ...and the conflicting uses (in this case Tumalo State Park, the Deschutes River Scenic Area, wildlife resources and residences in the area, and their economic value). The county's ultimate decision concerning whether and how much to limit/protect/prohibit the Goal 5 use and conflicting uses is based on that comparison. The Conflict Resolution/ESEE Consequences phase evaluated only the estimated 750,000 cubic yards of pumice and 10,000 cubic yards of aggregate. That analysis and the resulting Program to Meet the Goal might well have been very different if it were known in 1990 that the site included a significant deposit of a different type of mineral resource with economic value extraction of which could generate different or more intensive kinds of conflicts with nearby uses than the minerals considered." (Emphasis added.) (LUBA Decision, pp. 13) Incremental Mining LUBA left the door slightly open for the County to justify that removal of the tuff could be considered as only "incidental" to the mining of the pumice. The definition of "incidental" is of a "minor consequence" or "without intention or calculation" or a "minor concomitant." Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 By no stretch of the imagination could mining the tuff on the headwall be considered incidental where it would involve moving to 40 to 80 feet of tuff, literally dismantling the hillside, to get to the 15 feet of pumice. This would be an Appalachian-style mining operation with all the attendant dust, noise, visual and truck traffic impacts. It should also be emphasized that there is a significant difference between mining in the "flats" as opposed to mining the headwall. As shown in the attached Latham Excavation profiles (Ex. 1), the depth of tuff to be mined to get to the pumice is only 8 to 15 feet on the flats. On the headwall, however, it is necessary to mine 40 to 80 feet of tuff before the pumice can be reached. Such an amount of mining cannot be considered "incidental." Additionally, as the mining would proceed further to the south there would be a need to blast and mine basalt at the top of the hill before then removing 80 feet of tuff before it could reach the 15 feet of pumice. See Ex. 2, a photo of the current headwall. It should be further noted that LUBA emphasized that "the scope of protection for incidental minina of a non-inventoried mineral resource in the absence of a Goal 5 analysis of that resource must be sufficiently narrow, or the Goal 5 planning process loses all integrity." (Emphasis added.) (LUBA Decision, pp. 16-17) LUBA also noted that what is involved here is "the mining of significant quantities of a non-identified, non-evaluated and non-inventoried mineral resource." (Emphasis added.) (LUBA Decision, p. 16) Conclusion There are strong indications in the ESEE that the headwall and effects of dismantling the hillside were not contemplated. The ESEE describes the surface mining impacts associated with "the opening of a pit in the ground" (ESEE, p. 3), not a headwall that is currently 50 feet tall and 900 feet long and planned by the Applicant to be much larger. Such mining of a headwall is also not consistent with concerns for protection of Tumalo State Park, the Deschutes River State Scenic Waterway and the other sensitive uses that LUBA noted were a recurring theme in the ESEE. Accordingly, the proper disposition of this case is to prohibit any further mining of the headwall and for the County to require the Applicant to file a post-acknowledgment plan amendment to amend the ESEE for further mining of the headwall and of the tuff. Paul D. 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L N E I L ID ~ v v a V m O .a _O D_ 4 154 U O ~~=Qo T-mono omE =o v v m Q ~ O D to b o ys ~E a1 N OR Rs~ n ' v N ' , , E E n' ' t L , ; ; ; ; ; , ; , F ; w o t? F- o m ~ IIVV m 1 R S m 9 P N o ~ o~oE o m v 41 Em=m L m E 3 a. -9o N N v ~ >L ms x 16 ~ L L. N - IB (Q U O ~ 7S 00£'11 aun iCz-+adoid y1.ioN - - - - - - J O iLII,.~ N~> oN -3 ILL 1L U M 0) Eri I I I to to ~ I I I I ~ N t9 i9 l7 IN m n I I I t0 N to N N N t0 I I I I I 1 I I I s w 4 Ftk ~ t ~ 6 4 "v L , IL cX a ITL( 12~c. 3 (c t'- BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY REMAND PROCEEDING ON MA-083, CU-07-102 Brief by Eric and Ronna AND SP-07-46; LATHAM EXCAVATION Hoffman in Opposition to the SURFACE MINE SITE NO. 303 Applications (June 13, 2011) SCREENING REQUIREMENTS LUBA basically decided that it did not understand the County's interpretation of its visual screening provisions. Latham had argued that it qualified for a "topography" exception from screening requirements because its mining of the headwall could not be effectively screened where it is so high up that planted vegetation could not screen it from view. In response, the Board ruled that the topography exception does not apply to man-made topography. The Board reasoned: "To find otherwise would lead to the absurd situation of allowing a property owner to severely alter a property then claim an exemption from the very provision designed to protect the surrounding uses from the impacts of that alteration." (BOCC Decision, p. 23) "To find otherwise would allow any operator of a surface mine to be able to forego any screening merely by altering the topography with mining activities then claim a topographical impediment." (BOCC Decision, p. 24) As LUBA noted in its decision, this ruling was not appealed by Latham. It therefore rejected Latham's challenge to the County's interpretation. (LUBA Decision, p. 34) The Staff in its matrix presents limited options not consistent with the Board's decision that the topography exception does not apply to manmade topography. The Staff recommends finding that the topography will prevent the headwall from being screened or that the screening will not be successful because of rocky soil and uneven terrain. The Hoffmans do not believe that these options for the protection of their property and of Tumalo State Park are appropriate. The most appropriate restriction would be a prohibition on any further mining of the headwall because it is that man-made change of the topography which is preventing screening of mining at the site. Only mining that can be screened should be allowed. Even if mining of the headwall would be allowed, at the very least there should be supplied screening all along the northern and eastern boundaries of the mine site. Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 2 Mine operations have stripped these boundaries of virtually all vegetation on the eastern half of the northern boundary and in the northeast corner of the mine site. The Staff matrix also ignores the ESEE Program to Meet the Goal screening requirement specifically applicable to Tumalo State Park in Section 23(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." Though the Board ruled that this provision is implemented by DCC 18.52.110, LUBA made it clear that "it was error for the county not to require supplied screening in that area, even if that screening would not be effective to entirely screen the entire mining operation from Tumalo State Park." (LUBA Decision, p. 39) Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY REMAND PROCEEDING ON MA-083, CU-07-102 Brief by Eric and Ronna AND SP-07-46; LATHAM EXCAVATION Hoffman in Opposition to the SURFACE MINE SITE NO. 303 Applications (June 13, 2011) LOCATION FOR STORAGE OF MATERIALS LUBA rejected the County's interpretation of DCC 18.52.090(B) which requires a setback of one-quarter mile for storage of materials. The County had argued that there was an exception for material to be used in reclamation. LUBA ruled that the County's interpretation improperly inserted words of limitation that are simply not in the Code. The Hoffmans disagree with the Staff matrix suggestion that rather than remove and relocate all of this material that another exception be provided to allow these storage areas to remain where they are. Staff proposes to utilize the following exception: "Due to parcel size, topography, existing vegetation or location of conflicting uses or resources, there is no on-site location where the storage and processing of material or storage of equipment which will have less noise or dust impact." (Emphasis added.) The reality is that virtually every other location on the mining site would be better than the ones which are located so close to the Hoffman and Todd boundary lines. Additionally, it should be noted that the Applicant has worked these piles in the past and there is no assurance that they won't continue to be worked with all the attendant dust and visual problems. Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY REMAND PROCEEDING ON MA-083, CU-07-102 Brief by Eric and Ronna AND SP-07-46; LATHAM EXCAVATION Hoffman in Opposition to the SURFACE MINE SITE NO. 303 Applications (June 13, 2011) RECLAMATION ISSUES The original County decision essentially concluded that the County lacks expertise on reclamation and should completely defer to the state Department of Geology and Mineral Industries ("DOGAMI"). The County ESEE, however, requires ongoing incremental regulation and LUBA ruled that the County could not ignore its own requirements or abdicate all responsibility to DOGAMI: "[T]he county cannot simply abandon the requirement in Condition 23(e) by claiming it lacks expertise in reclamation and does not understand the meaning of the condition the county imposed in 1990 when it adopted its Program to Meet the Goal for site 303." (LUBA Decision, p. 46) Unfortunately, the Staff once again in its matrix is recommending a complete deferral to whatever DOGAMI rules on the matter. This is not consistent either with the ESEE requirement of ongoing incremental reclamation or with the Code requirements which call for reclamation. LUBA recognized that a premise of the County's land use regulation of mining sites is that mining is a short-term and transitional use and that the site after reclamation can be put to other land uses. (LUBA Decision, p. 9) The County Comprehensive Plan and Zoning Code require reclamation of a site and even ongoing incremental reclamation. DCC 18.52.080(B) requires the submittal to the County of all information required for a site reclamation plan, 18.52.110(K) limits an extraction site to five acres with the Comprehensive Plan ESEE requiring ongoing incremental reclamation, and 18.52.130(B) requires a site reclamation plan even when one is not required by DOGAMI. Reclamation of the site has always been a key consideration for the County. Latham Excavation even acknowledged the significance of reclamation in the previous site plan approval for Cascade Pumice: "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." (Emphasis added.) (Latham Excavation 2/19/08 Modification, p. 9) Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 2 The Hearings Officer's decision in the Cascade Pumice case (adopted by the Board) which allowed the Cascade Pumice operation also provided, as described by Latham Excavation: "Reclamation of each slot would occur as the operation moved into subsequent slots. The reclamation would consist of replaced stockpiled overburden and top soil in the slots with the excavating equipment contouring the site and the site being re-seeded with native grass species." (Emphasis added.) (Latham Excavation 2/19/08 Modification, p. 9) The existence of DOGAMI authority does not erase the County's interest in regulating what can occur on the mining site. Just because DOGAMI may approve a certain kind of reclamation does not mean that the County has to allow the mining activities that would result in such an unacceptable reclamation scenario. Attached as Ex. 3 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. As LUBA clearly held, the County cannot abdicate its reclamation responsibilities. Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 i a i 1'~.T~E,SHcO Uji"" s December 12, 1988 MEMORANDUM: E.l':1IBI'T' "C" Legal CounsE Administration Bldg. / Send. Oregon 97701 / (5031388-6623 TO: BOARD OF COUNTY COMMISSIONERS FROM: KAREN H. GREEN k-, c~ Assistant Legal Counsel Richard L. Isham, County Legal Counsel Karen H. Green, Assistant Legal Counsel Bonnie Cargill, Legal Assistant SUBJECT: Surface Mining Goals and Policies FILE NO. 1-534 COPY TO: Craig Smith, Planning Director r 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,M 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 Ex 3 1 ST 1+ BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY REMAND PROCEEDING ON MA-083, CU-07-102 Brief by Eric and Ronna AND SP-07-46; LATHAM EXCAVATION Hoffman in Opposition to the SURFACE MINE SITE NO. 303 Applications (June 13, 2011) CRUSHER SITE LOCATIONS The Hoffmans disagree with the Staff's recommendation that the County must allow all three proposed crushing sites. In its original decision, the County allowed only one site located in the southwest part of the mine area. And just because LUBA concluded that the County could not prohibit the other two sites on the basis of the one-quarter mile setback rule does not mean that the County cannot determine that these two sites are still inappropriate based on the criteria of DCC 18.52.140(A) and its referral to the standards of DCC 18.52.110(B)(5). Note that this is another issue which the County could better address in a new ESEE for the site. Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY REMAND PROCEEDING ON MA-083, CU-07-102 Brief by Eric and Ronna AND SP-07-46; LATHAM EXCAVATION Hoffman in Opposition to the SURFACE MINE SITE NO. 303 Applications (June 13, 2011) HEADWALL AND DUST IMPACTS Dust from the mine site is a significant issue as acknowledged by the ESEE and as shown by the attached photos of dust events at the site, Ex. 4. LUBA ruled that the County's attempt to limit mining of the headwall to prevent dust discharges would not work because the County Code requirements only call for "reasonable precautions," instead of requiring success and dust suppression. LUBA's decision essentially pointed out the weakness of the County Code in relying on DEQ requirements which emphasize "reasonable precautions" without any regard at all to whether or not such precautions actually acquire any success in dust suppression. This makes it all the more important for the County to require that a new ESEE be done because stopping the mining of the headwall can be done through the ESEE Program to Meet the Goal. While the County may have been foreclosed by LUBA from regulating dust via the County Code requirements, LUBA did allow the County to regulate mining of the headwall by requiring a new ESEE. It should also be noted that the DEQ "reasonable precautions" standard only applies because the County Code requires its application. The County through its ESEE could come up with its own standards for dust. Paul D. Dewey, OSB 478178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 f Document Reproduces Poorly (Div) 'p _g' i8 ,~5~ Im J ~ a 3 "Y ti - _ - i 4, Y .ham. i t ; 17 v4« LUBA 2009-061 & 062 Page 3132 Remand Hearing Mark Latham Excavation June 13. 2011 I. Background for Site • 1970s - Mining at site dates back to 1970s on eastern half of site (for river run aggregate) and likely before that for pumice. • 1979 - Site was zoned for surface mining. • 1990 - Site was inventoried for pumice and zoned for surface mining in the County's Goal 5 process. • 1996 - A site plan was approved on application of Cascade Pumice for mining the pumice. • About 2002 - Cascade Pumice starts mining pumice at the site • 2007 - Cascade Pumice sells site to Mark Latham Excavation, Inc. • 2007 - Latham Excavation submits site plan application and conditional use to allow crushing on site. Revised application would not expand footprint from 1996 Cascade Pumice approved site plan. 11. Regulatory Background for Surface Mines • See findings for 2009 decision, pages 10-12 Zoning for surface mining and protection of mineral and aggregate sources is governed by Statewide Planning Goal 5. County's comprehensive plans must include protections for mineral and aggregate sources in accordance with Goal 5. Division 16 of the Oregon Administrative Rules governed the Deschutes County Goal 5 process and provides the legal context within which the comprehensive plan decision- making documents (commonly referred to by a short-hand designation as an "ESEE") for each separate site. Goal 5 requires a multi-step process of inventorying mineral or aggregate resources; identifying conflicting uses and resources; determining the Economic, Social, Environmental and Energy consequences of allowing mining to proceed fully or allowing the conflicting uses to proceed fully (without mining); deciding whether to allow mining and to what extent; devising a "Program to Meet the Goal" by which regulations are adopted to allow mining and to restrict conflicting uses. Most decisions in the County were made to allow both the mining and conflicting uses to proceed, as limited by the provisions of the SM zone (for mines) and the SMIA zone (for conflicting uses). • Deschutes County's first attempt to obtain acknowledgement of its comprehensive plan for surface mining sites was struck down by the Oregon Court of Appeals because it did not protect mining sites from encroaching rural residential development. • The Deschutes County Goal 5 Mineral and Aggregate element of its comprehensive plan was adopted in July 1990 through a package of 4 ordinances, establishing: comp. plan goals and policies; an Inventory; conflicts analysis and ESEE Decisions for each site on whether to allow mining and to adopt a Program to Meet the Goal; and an ordinance adopting the SMI zone and regulations and the SMIA zone and regulations. Site 303 in the County's inventory list is the subject site, and the County's decision in July 1990 was to allow for mining to proceed, to zone the site SM, and to apply the regulations in the SM zone to mining operations. A Surface Mining Impact Area (SMIA) zone of mile was adopted surrounding the site to protect the mine from encroaching conflicting uses, (primarily residences). The Program to Meet the Goal for this site was basically a generic listing of conditions that applied the provisions of the Zoning Code to this site. No special restrictions were adopted (other than a notation that special care be given to protecting views from Tumalo State Park - but no performance standards other than those in the ordinance were established). Processing (crushing) was specifically allowed at the site. III. Issues on Remand A. Does the ESEE Allow Mining of the Tumalo Tuff? 1990 ESEE for Site 303: (See Bullet Summary Exhibit 1) - Conflicts identified, pp. 3-6 - ESEE Consequences analyzed, pp. 6-8, 9-11 - Decision/ Weighing of importance of mineral resource versus conflicting resources and uses, pp. 9, 11-12 - Program to Meet Goal, p. 12 Conflicts and consequences stated in generic, broad-brushed terms, with no quantification of degree of impact. Prior mining noted, which served to lessen degree of impacts noted and focus on impacts of expansion only. ESEE p. 6. Findings in 2009 Decision: (See Bullet Summary Exhibit 2) This issue is addressed in extensive findings on Pages 15-16 of the Board's 2009 Decision. Legal Context: OAR 660-0016-0010 "Based on the determination of the economic, social, environmental and energy consequences, a jurisdiction must 'develop a program to achieve the goal'. Assuming there is adequate information on the location, quality and quantity of the resource site as well as on the nature of the conflicting use and ESEE consequences, a jurisdiction is expected to 'resolve' conflicts with specific sites in any of the following three ways listed below... (3) Limit Conflicting Uses: Based on the analysis of ESEE consequences, a jurisdiction may determine that both the resource site and the conflicting use are important relative to each other, and that the ESEE consequences should be balanced so as to allot the conflicting use but in a limited way so as to protect the resource site to some desired extent. To implement this decision, the jurisdiction must designate with certainty what uses and activities are allowed fully, what uses and activities are not allowed at all and which uses are allowed conditionally, and what specific standards or limitations are placed on the 2 r permitted and conditional uses and activities at each resource site. Whatever mechanisms are used, they must be specific enough so that affected property owners are able to determine what uses and activities are allowed, not allowed, or allowed conditionally and under what clear and objective conditions or standards. Reasons which support this decision must be presented in the comprehensive plan, and plan and zone designations must be consistent with this decision." Caselaw: Sanders v. Yamhill County, 34 Or LUBA 69 (1998) Columbia Steel Castings Co. v. City of Portland, 314 Or 424 (1992) Callison v. LCDC,145 Or App 277, 929 P2d 1061 (1996) An ESEE is only required to address the eg neral nature and scope of the identified conflicts and their interplay and it is sufficient if it contains enough information to permit the responsible jurisdiction to have "reasons to explain why decisions are made for specific resource sites." "Neither the rule nor the Supreme Court's decision in Columbia Steel Castings Co. requires a fully articulated analysis of the interaction of conflicting uses and Goal 5 resources for each specific resource location. Rather, they require that,when the City makes its decision, it have reasons for its decisions that it can explain if an explanation subsequently becomes necessary." Callison, supra. Important "Take-Away" Points: • Goal 5 is aimed at providing protection to natural resources. • Balancing of conflicts is based upon relative importance of the resource site versus importance of conflicting resources and uses (not a balancing of impacts per se) • The rule requires analysis of resource sites (not specific resources) • The ESEE analysis can be describe conflicts in general; detailed description of conflicts was not required and in the case of the County's ESEE decision documents was not made. LUBA's Decision: • Pages 14-20 • Inventoried amounts do not limit the amount of the inventoried material that may be excavated, even if real amount is 2 million cu. yds versus that estimate of 750,000 cy • Incidental mining of a different, non-inventoried mineral may be OK, where the inventoried and non-inventoried resources are similar in use and value, means of extraction and processing and the type and intensity of impacts are similar. Would the County have allowed for mining of the non-inventoried resource if it had known of the quality and quantity of the non-inventoried resource? • LUBA found that because the impacts were similar and the Tumalo Tuff was an overlying layer, the County's went "part way" to establishing that the Tuff could be mined. Because the findings did not specifically address the primary concern of the opponents - visual and dust impacts of headwall - the findings were not adequate. • In particular, LUBA noted that in light of the additional restrictions the Board put on nearby sites 304 and 305/306, the Board might have opted for additional restrictions on Site 303 had it know of the mining of the Tuff resource in addition to the Pumice Resource. Latham Response: - Board can make adequate findings here: Is not an issue of what evidence is in this record (although that may help assuage your concerns about the decision you make). Is a matter of what the Board knew at the time of the ESEE, given the general description of the conflicts and the ESEE consequences of mining or not mining. - The 1990 record for this site does not include any specifics as to exactly where the resource is, how deep the resource is or exactly what method might be used for mining. (In fact, the Board's findings assume that blasting would occur- see ESEE p. 5.) Per the case law cited, no great detail was needed for the Board to make a supportable decision. - The record shows that the ESEE conditions for sites 303, 304 and 305/306 were basically similar, starting with a set of basic, generic conditions. (See attached Exhibit 3, map showing locations of Sites 303, 304 and 305/306; see also attached ESEE excerpts for Sites 303, 304 and 305/306 - Exhibit 4.) - Site 304 was closest to the river - directly across O.B. Riley Road from the River. The ESEE conditions didn't even include one requiring that dust be controlled. The additional restrictions put on Site 304 were that no processing occur and that the site be accessed at the northern edge (furthest from the park). These were requested by State Parks (see attached Exhibit 6, State Parks Letter). Site 305/306 backs up directly to the Tumalo Rim subdivision. The additional ESEE restrictions for this site were restrictions on blasting and that there be a one-year time limit for mining activities. The close proximity of the mine to the subdivision explains the blasting restrictions; the one-year time limit on operating was agreed-to by the operator (see Exhibit 7). - There was no request from State Parks that Site 303 not allow for processing (as was the case with Site 304). (See Exhibit 5, State Parks Letter.) Despite the far greater amount of material that would be excavated from Site 303 than from Site 304, State Parks requested the same general screening requirements for Site 303 as it did for Site 304. There was no concern expressed about what configuration the land might take after mining. There was very little testimony on this site. None at the Planning Commission. Only 4 individuals at the Board. (See Exhibit 5, BOCC Hearing.) Only 2 of the 4 mentioned dust; only one mentioned visual impacts on Tumalo State Park. There were two letters in opposition. One mentioned visual impacts and dust (LUBA Record, p. 3551); the other letter from the Coalition for the Deschutes (mentioned as the primary letter in opposition at the Board's decision meeting) did not even address this site specifically ("of the wave of SM sites, we have had time to evaluate only sites 251, 278 and 453".) (Exhibit 5, Coalition for the Deschutes, LUBA Record 3548). 4 T In its final decision, the Board watered down the visual screening requirement from what had been proposed by State Parks from requiring that screening be supplied to a requirement that "particular attention be paid to screening from Tumalo State Park." There has been far more opposition at these hearings on the site plan and conditional use permits than at the ESEE stage. Given the lack of focused concern in 1990 on the issues mentioned by LUBA in its decision, the Board should have no trouble making the findings that LUBA requires. A new ESEE for just the Tumalo Tuff would have adverse impacts o On the applicant, because of further delays and expenses. It is possible under the Division 23 rules that no new ESEE could be approved until the intersection at Highway 20 and O.B. Riley Road is improved. o On the community, if it opens the door for challenges to other sites in the County that have routinely mined non-inventoried resources, such as the Tumalo Tuff. This could result in a shortage of construction fill resources in the community - the only private sites inventoried for such resource in the Bend area is the Rose Pit (No. 392), which is currently seeking to be zoned from Surface Mining to rural residential. Other pits from which Tumalo Tuff is drawn for construction fill are the Robinson Pit off of Century Drive (now closed for further mining); the Pieratt Brothers (Able) pit (No. 381) and the Taylor NW Pit to the west of Shevlin Park (No. 282/283). - A new ESEE for just the Tumalo Tuff would not provide for greater protection of conflicting resources and land uses: o General scenic impacts are not addressed under the Division 23 rules; o Scenic impacts on Oregon Scenic Waterways are measured at the water's edge and not in the uplands associated with the Scenic Waterway; the river runs in a canyon through the most heavily used parts of the park and the mining site cannot be seen from the water's edge. Staff reference to ESEE not covering the headwall is erroneous. (See argument on p. 5 of June 10, 2011 letter.) ESEE never mentioned term "headwall". Such position is inconsistent with the balance of the findings on pp. 14-15 and Condition of Approval No. 23 in the 2009 decision. B. Whether Supplied Screening is Required for the Hoffman #1 Dwelling: Subject Provision: DCC 18.52.110(B) Applicability: Only to Pre-July 1990 Dwellings (doesn't apply to Hoffman #2 Dwelling) 2009 Findings: pp. 22-23 LUBA's decision: pp. 33-35 (in particular, the discussion on page 34, lines 5-16 starting with "the distinction the county is attempting to draw between natural topography and man-made topography is hard to draw" and then in footnote 21). Latham's Response: o The only reasonable interpretation is that the topographical exception applies equally in cases where there has been a "man-made" alteration of the topography as to where the topography is completely natural. o LUBA's footnote 21 states Latham's position; there is no possibility of screening the headwall for two topographical reasons: the intervening ridge would make screening ineffective; the height of the headwall would make screening ineffective. C. Whether Supplied Screening is Required for Tumalo State Park and the Adiacent Pre-1990 Dwellings Subject Provision: DCC 18.52.110(B) Applicability: Only to Pre-July 1990 dwellings, (therefore doesn't apply to Aller replacement dwelling) Only to dwellings that are within mile of site (therefore doesn't apply to Massey dwelling, possibly Kleine dwelling) At most applies to only two dwellings, Scolman and Kleine (see Exhibits to Table 1 to Bruce White letter). Latham Response: Topographical exception to screening requirement applies Interpretive issue is whether once the exception applies whether no screening is required or only screening to a limited degree. Problem with the latter is that with earthen berm supplied screening, there is no standard for what height of screening to supply. Can be interpreted both ways. The safest interpretation to protect against a potential further remand from LUBA is for Latham to provide proposed screening of earthen berm across eastern mining boundary. o Latham proposes a 12-foot high berm from northeastern mining boundary to where the berm at that height meets the existing contour of the land. Berm to be vegetated with mulch/native grass mix. See Exhibit 4 to Pat McClain testimony. • Latham agrees to retain existing vegetative screening for the 50-foot band along the eastern boundary ascending the hill. • If further screening is needed to bridge a gap between earthen berm and the retained vegetation, it can be supplied by some form of Juniper or other native tree species in accordance with vegetative screening standards. 6 Construction of berms is exempt from noise standards (see June 11, 2011 Bruce White letter). D. Compliance of piles of top soil with the %-mile setback Subject Provision: DCC 18.52.090(B) Applicability: Only to Pre-July 1990 Dwellings (doesn't apply to Hoffman #2 Dwelling). Setbacks at issue involve setbacks from Hoffman #1 dwelling and Todd dwelling to east. 2009 Findings: pp. 33-34 LUBA's decision: pp. 41-43 Latham Response: o Address surface mines generally as dynamic sites o Move topsoil pile within X mile of Hoffman No. 1 residence to a place outside the mile setback o Seek exception under DCC 18.52.090(B)(1) and (2) for top soil pile placed by Cascade Pumice within 1/4-mile setback from Todd Residence, relative to size of the parcel and physical constraints, to retain "existing vegetation" on the topsoil piles. Given the existence of the pile and its already-vegetated state, no other location would have less impact from a noise and dust standpoint. o Confirm existing exception to allow stock piles within %-mile setback from houses to south (see findings at p 34, third paragraph). Those findings are still valid. E. Compliance with the incremental reclamation "requirement" in the ESEE's Program to Meet the Goal Subject Provision: ESEE Condition 23(e) 2009 Findings: pp. 26-27, p. 63 LUBA's decision: pp. 44-46 LUBA suggested that "we believe the County could write a condition requiring ongoing incremental reclamation to expressly provide that DOGAMI is free to determine whether 'ongoing incremental reclamation' is possible or desirable and DOGAMI may modify or waive that requirement altogether in its permitting process DOGAMI sees fit." Latham Response: o Agree with staff that the only reasonable response to this is to condition approval, as suggested by LUBA. Applicant has suggested language in Bruce White's letter of June 10, 2011. 7 o Reasons for this are that only DOGAMI has the authority to regulate reclamation activities. o Avoids the County having to make judgment calls on when reclamation activities might be required to begin, what reclamation activities are reasonable to require the applicant to undertake, given the o Recognizes that applicant is free to amend its reclamation plan with DOGAMI and that trying to prescribe an incremental reclamation plan could run into conflicts with a revised reclamation plan approved by DOGAMI. F. Compliance with air quality standards regarding the headwall Subject Provision: DCC 18.52.110(C), incorporating OAR 340-208-0210(2) Other potentially applicable standards are the visible air contaminant standard of OAR 340-208-0110 (opacity) and the particle fall-out standard of OAR 340-208-450. The opacity standard does not apply to broad surfaces such as headwalls. The particle fall- out standard is not typically a standard for regulating single sources. It is usually invoked only upon DEQ's own determination that it is appropriate to use the standard as an enforcement mechanism. (See LUBA Record, p. 354-355). DEQ can invoke the standard, if necessary through the ACDP permits for the crushers. 2009 Findings: pp. 43-48 County found that applicant complied except for the headwall. LUBA's decision: pp. 62-65 In determining compliance with the fugitive dust standard, County misinterpreted the standard to require a showing of success in keepi ng particulates from becoming airborne. In accordance with the express language of the DEQ administrative rule, the fugitive dust emission standard only requires that the applicant take "reasonable precautions" to prevent dust particles from becoming airborne. Latham Response: From the June 7, 2011 written testimony of Latham geo-tech Andrew Siemens, it is apparent that the nature of the Pumice and Tuff material is that in their natural state, before being dislodged, the material has inherent structure that helps prevent dust. The material forms a crust on the surface after exposure to the elements that prevents wind erosion. When this crust is disturbed by excavation, there can be erosion by wind, as the fine materials exposed either drop off or are picked off the face by wind. The crust can be induced to form immediately during excavation and the fines washed off the face by wetting the excavated area down. Examination of the headwall shows that the excavation marks (tooth marks from excavator bucket) made by Cascade Pumice years ago are still present, indicating lack of subsequent erosion. Use of water as a wetting agent is recognized by DEQ as a "reasonable precaution" to address the potential for wind erosion of exposed earthen surfaces. This becomes part of Latham's dust mitigation program as set forth in Condition 9 of the decision. The opponents argued that the mulch would not work on the headwall. With the mitigation step proposed by Andrew Siemens, there is no need to apply mulch to the headwall. It can still be applied to the sloping areas surrounding the headwall, such as the problem area to the southwest of the headwall. The problem berm areas on top of the headwall (that could not be reached by the application of the mulch at the time) have vegetated themselves in the interim. If necessary, they can be hand seeded/ mulched. G. Compliance with setbacks for the proposed northeast and southeast crushing sites Subject Provision: DCC 18.52.090(B) 2009 Findings: pp. 35 (paragraph 2), p. 68 LUBA's decision: pp. 59-62 The %-mile setbacks are not minimums but areas stated - % mile. County cannot deny for failure to meet setbacks when the % mile has been met. It is indisputable that the setbacks were met. Latham Response: Agree with LUBA. County has no choice but to find that setbacks were met. H. Compliance with visual screening reauirements for the northeast and southeast crushing sites Subject Provision: DCC 18.52.140(A) 2009 Findings: pp. 67-68 LUBA's decision: p. 62 Latham Response: County already determined in its 2009 decision that noise standards were met (see p. 68). Only issue is whether screening criteria of DCC 18.52.110(A)(2) are met. Applicant proposes to provide supplied screening to comply with DCC 18.52.120(A)(2). Earthen berms at least 15 feet tall to screen the processing equipment from pre-1990 houses and the nob in Tumalo State Park. Final location and heights to be determined in the field after processing equipment set up. Berms will be covered with a mixture of mulch and native grass seed, such as rye grass. 9 If necessary because of diminution of stock pile, a berm can be supplied for this site similar to the other berms. 10 M1-- r r r r r ESEE Findings and Decision Site No. 303 Site Number 303, occupying a portion. of tax lot 300 in Township 17, Range 12, Section 7, came before the Board of Commissioners (Board) for hearing on August 9, 1989. On October 26, 1989, the Board made a preliminary decision on this site. By adoption of these findings and this decision, the Board confirms and ratifies that preliminary decision. 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, NUA-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 5F ENO of 62 AM- 9 (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. The west half of the site is primarily natural with juniper tree and some. sagebrush. There are two small pumice-'quar- ries 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 . L.- 1ftPF u 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 ~iaterway 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 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 p~~@tan oo~f'os2 04182 I App gs 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 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 MUA 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 F.A11 p~~FL 2009-061 & 062 04183 7j r 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. r r (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 aiid'community and park-type-uses. The Board finds that the uses identified above as c fli t on c - 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 VOR pageos2 04184 App S 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 Xining Use of Site. The Board finds that surface mining is a current or previous use at i;he 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 Exhib.' , Page z~ 062 04185 7 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 Conseouences. 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 b the actions f y o 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 M.62 Exlfd*- 77 pag6-ua 2062 t 04186 ~ AI~(}/ p~~p~~pp~~;gglI~.pqpq j A 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 aind'as`an export for the local economy. 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 mi_nang 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 •a Exhib'd" Pa9kZ 062 04187 i 13. Relative Values of the'Conflicting 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 specific parcels either adjacent to or within one-half e of both existing and potential surface mines indicates fi "t there were no drastic fluctuations in these property salues. This same analysis shows that there has been no preciable decline in sales of these or similar types of properties. 9 - ESEE FINDINGS AND DECISION - SITE NO. 303 1 Exhibits 04188 App- L ..:A..~• 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 indusw- 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 iiapacts 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 s.ome'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 '-7-7~ Pa 62 04189 Ann. qa 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 Conflictina 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 (a) 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 t E*ibit Pa@t 59;;62 04190 (c) The use at Tumalo Park and sites along the Deschutes River are•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, 198.9, 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 "I-• Exhibit . . Page 5 & 062 04191 i- 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, hatching, 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 I--- exhibit - PagB 2 ` & 062 04192 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 Exhibit Page LUBA 2009-061 & 062 04193 A-pp. ` - - - Me ztt 01 )1- 00,00-300 to- LILD 36 PN% 1 Document Reproduces poorly 04194 (Archived) Appql_._ . Exhibit in this case was drafted. The Division 23 rules are sufficiently different in their methodology, they are not applicable or appropriate for interpreting the scope and meaning of the ESEEs, such as for Site 303, drafted under the Division 16 administrative rules. The Division 16 rules describe a more generalized conflicts identification and conflict resolution process, whereas the Division 23 rules describe a very prescriptive process at the comprehensive plan amendment stage that involves analysis of whether certain standards, such as DEQ noise, air quality and water quality standards can be met as part of the conflicts resolution process of the Goal 5 process. A Type o Material. The opponents also argue that the fact that only pumice and not tuff was listed on the Goal 5 inventory precludes the applicant from mining the overlying Tumalo tuff unless the tuff is separately inventoried and subjected to the ESEE process. For reasons similar to the reasons stated above, the Board finds that the Site 303 ESEE and the implementing zoning ordinance do not limit the applicant from excavating and selling the overlying Tumalo tuff. As it found previously, the Board finds that the conflicts analysis and the ESEE consequences analysis were somewhat formulaic and generic in nature. For example, the ESEE for Site 303 identified blasting as one of the impacts of mining. the material at the site even though excavation of the pumice and the overlying tuff does not require blasting. The Board also finds that, at the time the ESEE was written, no information was submitted or required as to exactly where on the site the deposit was located, how deep the deposit was, what kind of material, if any, overlaid the inventoried material, nor what exact type of mining nor type of machinery would be necessary in order to mine the material at the site. In addition, there was no information required or submitted as to what materials might be used for reclamation, how the site might be reclaimed or what the site might look like after reclamation. As noted in the appellate cases cited by the applicant, no such detailed information was necessary in order to comply with Goal 5. All that was required under OAR 660-016-0005 for the ESEE analysis was a description of the resource and site sufficient to allow a description of the general nature and scope of the conflicts such that in electing which of the three choices allowed under OAR 660=016-0010, the Board could give reasons for and explain its decision. This the Board did in the ESEE in weighing the relative importance of the aggregate resource and the relative importance of the conflicting resources and the relative importance of the conflicting uses (to other conflicting uses) and then resolving the conflicts under Paragraph 23 in the.Program to Meet the Goal. The Board finds that the result of mining the Tumalo tuff in addition to the Bend pumice in this case does not result in significant added impacts that exceed or are in any way different in kind than the general impacts of mining documented and contemplated in the ESEE analysis. As an overlying band of mineral material, the tuff must necessarily be excavated and stored on site in any event to expose and mine the underlying Bend pumice. The Board finds from information in the record from the Oregon Department of Geology and Mineral Industries (DOGAMI) and from applicant's geotechnical expert that Tumalo tuff qualifies as a mineral under the County's DCC 18.04.030 definition of a "mineral" and that the Bend pumice and the Tumalo tuff are derived from the same volcanic event and are similar in composition, except for grain size, with the tuff heing.made up-of 302Yo._pumice..inclusions-b_y. weight.. aecause of.thematuroQf_the.tuff-material,-it.. Page 14 of 72 - BOCC Decision in CU-07-102, SP-07-46 (MA-08-3, MA-08-4), A-08-14, A-08-20 - Document No. 2009-215 App 1 LUBA 2009-061 & 062 00016 is excavated in exactly the same manner as the Bend Pumice, using the same kind of machinery as is involved in the excavation of the Tumalo tuff. About the only difference is that, when used as a fill material, the Tumalo tuff doesn't require processing, while the Bend pumice must be screened and crushed. While the excavation of the Tumalo tuff in addition to the Bend Pumice would result in additional truck traffic, the Board finds that the ESEE's Program to Meet the Goal and the implementing zoning ordinance do not regulate the amount of truck traffic required to service the mine. The Board finds that an understatement of the inventoried resource at the site would not have affected the resolution of conflicts in the ESEE process in this case, since, under the. conflicts resolution step in OAR 660-016-0010, the resolution of conflicts requires weighing the relative importance of the resource site vis a vis the relative importance of the conflicting use and does not involve a weighing of the impacts. If anything, inventorying just the pumice resource would have tended to give the site less importance in the ESEE evaluation process as weighed against the importance of the conflicting resources and uses; but, even then, the resource was sufficiently important to warrant protection. Similarly, the Board finds, from a comparison with two nearby surface mining sites, Sites 304 and 305/306, that the specific inclusion of an amount of Tumalo tuff on the inventory would not have resulted in any different Program to Meet the Goal for the Site 303 ESEE. The two nearby sites are sand and gravel sites, with Site 304 inventoried with 225,000 cubic yards of material and Site 305/306 inventoried with 150,000 cubic yards of material. Site 304 is located within a half-mile of the Tumalo Rim subdivision and within a half- mile of Tumalo State Park and across the road from the Deschutes River. Site 305/306 borders the Tumalo Rim subdivision on its west side. The Programs to Meet the Goal of these two sites are essentially similar to the Program to Meet the Goal for Site 303 in that the decision in each was a decision to Limit the Conflicting Uses under OAR 660-016-0010(3) and each decision relies.on the regulations in the SM and SMIA zones of the zoning ordinance to implement the ESEE decision, with some additional site-specific restrictions not present in the Program to Meet the Goal for Site 303. The additional restrictions found in those two sites are related to the closer proximity of those sites to the Tumalo Rim subdivision and to Tumalo State Park. All this and the discussion above under the amount of material covered by the ESEE leads the Board to conclude that applicant's proposal to mine the tuff in addition to the pumice is well within the scope of the ESEE adopted by the Board and that no amendment to the ESEE is required in order for the applicant to mine the tuff material. c. Crushing. The opponents argued before the Hearings Officer and on appeal before the Board that allowing crushing at the site is outside the scope of the ESEE. For the reasons set forth in Section VI(1) below, the Board finds that crushing is included in the ESEE's allowance of "processing" in the ESEE's Program to Meet the Goal and is therefore allowed. The Board finds that the fact that crushing has not occurred at the site in over 25 years does not negate the fact that, properly interpreted, the ESEE allows crushing to occur at the site, provided the conditional use criteria of DCC 18.52'. 140 are satisfied. d. Other ESEE Limitations. The opponents argue that various findings in the ESEE are applicable to the applicant's proposal by virtue of certain provisions in the DCC Chapter 18.52 site plan regulations, namely DCC 18.52.020, 18.52.080(E), 18.52. 100 and 18.52.110(P). In Page 15 of 72 - BOCC Decision in CU-07-102, SP-07-46 (MA-08-3, MA-08-4), A-08-14, A-08-20 - Document No. 2009-215 I LUBA 2009-061 & 062 00017 Exk* t 04 } r; po >1~~0 ~o. nOC ac~~g C1 Q~~o ~t ~30(~ n l1 DOCUMeM Rspr css PoorQy ~I Exbibit (c) The use at Tumalo Park and sites along the Deschutes River are,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 enough to be considered to be a use that of the aggregate resource at this site. future uses can be accommodated on other County.. There is no compelling need for near this site. is not significant would limit the use The displaced lands in the them to occur at or 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 0,16,-', • Potential development in the impact area is not significant enough to be a use that would limit the use of the aggregate resource at this site. Displaced future uses, if any, 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, tax lots 300-302 will be zoned for surface mining, subject to. the y`following E SEE conditions: (a) Setbac s'shall be required for potential conflicting . reside ial and other development; (b) Noise d visual impacts shall be mitigated by Buffer- ing and screening. In particular, the eastern, nor- theaste n, and southeastern boundaries of the site shall b screened to screen the project from Tumalo State Park; (c) Hours of operation shall be limited to between 7:00 a.m. and 10:00 p.m.; :(d) Road access to the site will be limited to the north boundary so as to not increase activity on the old Bend-Sisters Highway or Reservoir Road; The Board finds that processing on site will not be allowed in order to protect the neighboring Tumalo State Park use. Furthermore, the Board finds that tax lot"700 to the south of tax lots 300-302, also owned by Bend Aggregate, is not part of this site and should be rezoned from surface mining in order to offer a further buffer to the nearby state park use. .Mineral Resource 24. The Board-will protect the iaineral 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 12'- ESEE FINDINGS AND DECISION - SITE NO. 304 04 ~t (c) The site is located close to urban markets. This is an important factor given the .22 per ton mile cost for hauling aggregate. (d) This is an existing mining site. (e) Existing residential uses are important in that they represent a commitment by the property owner to develop and/or occupy a parcel of property. Such a commitment carries with it economic, quality of life, and health and safety expectations. The nearby Tumalo Rim sub- division is a well established community of homes in the area. (f) Tumalo State Park is heavily used during the summer months. Recreation sites, such as Tumalo State Park, are increasingly important for the Deschutes County economy. 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 a use that would limit the use of the aggregate resource at this site. Displaced future uses, if any, 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 exist- ing zoning on tax lots 100 (SM) and tax lot 700 (SM and MUA- 10) will be maintained, subject to the following ESEE condi- tions: (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 to benefit Tumalo State Park; (c) Hours of operation shall be limited to between 7:00 a.m. and 6:00 p.m. weekdays; (d) Blasting shall be limited to 10 days in any one year, and shall occur only upon 48 hours notice to all residents within the Tumalo Rim area; 13 - ESEE FINDINGS AND DECISION - SITE NO. 305/306 041.99 (e) Wildlife conditions set forth in the August 10, 1989, ODFW letter, incorporated herein by reference; (f) Extraction at the site shall be limited to five acres at a time; (g) Mining operations, siting of equipment, and trucking of product shall be conducted in such a manner that applicable DEQ standards are met; (h) Mining operations shall be limited to a one-year period, starting on and ending on , except that stockpiling on the northeast portion of the site may continue for up to 6 months after the one-year period; (i) Reclamation of the site must occur concurrently with mining during the one-year period; and (j) A development agreement must be signed between the County and the owner or his assignees that stipulates a specific time period for operating, reclaiming and closing the site. Details to be set during site plan review to include a one-year maximum time limit. w The Board finds that processing on site will be allowed. Conflicting Resources 24. The Board finds that surface mining use of the site sill be limited by conflicting natural resource considerations by the provisions for screening and buffering to mitigate noise and visual impact, the restrictions on winter processing, the hours of operation, the 5-acre limit on excavation, and the reclamation plan conditions. The Board finds that the screening and buffering provisions of the Deschutes County Zoning Ordinance, as amended by Ordinance 90-014, meet the ESEE screening and buffering requirements. The Board finds that such mitigation will not prevent the County from achieving its goal of protecting mineral and ag- gregate resources, since the site will be allowed to be mined. Mineral Resource 24. 14 - ESEE FINDINGS AND DECISION - SITE NO. 305/306 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 0 5 4- ambit -~/303 Ci`. MAUD C~ LIN: I'll second the motion. VOTE: PRANTE: YES THROOP YES MAUDLIN: YES SITE 303 (Cascade Pumice Site) George Read reported .that this.:80.. acre:.parcel,:awas.;:currently:::soned . surface mining in a Wildlife area cambining-Zone- and contained 101000 cu yds of good quality aggregate and 750,000 cu yds of pumice. The staff report .recommeuded surface-miring zoning with standard conditions including winter closure because it was in a Wildlife Area Combining Zone. There was historic mining on this site. The primary letter in opposition in the file was from the Coalition for the Deschutes. Karen Green reported that Chuck Clark testified that he only wanted to mine 25 of the 80 acres, and that there were three people who testified in opposition to mining at the site. THROOP: I'll move that this site be zoned for surface mining and that the standard conditions be imposed, which include sound and visual screening, '5 acres with ongoing reclamation, processing meet DEQ. noise and dust standards,* that the vehicles that are involved in•the operation meet DEQ. standards, that winter closure recommended by ODF&W be included-as a condition, that we have a letter from the Parks and Recreation Division of the Department of Transportation, and they were. requesting that there- be a'7 am to 10 pm hours of operations limit which would coincide with their quiet hours at the park, and secondly-that vegetative screening be planted and retained on the eastern, northeastern, southeastern 'boundaries to help with noise abatement and screening from the-park ;-and.lastly, that the Park and Recreation Department be. notified when surface mining activity is to-begin per their regulations because it- is in the scenic waterway. MAUDLIN: Second. VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES SITE 304 Oliver Fraser site George Read reported that this site was originally recommended by the staff as a 1(b) site primarily because there was no quality information on the site. The site had 225,000 cu yds of material and was currently zoned Surface Mining in a Landscape Management PAGE 3 MINUTES: 10-26-89 LUBA 2009-061 & 062 03541 ~3v}t-~ ~~a n~ bikes riding near the edge of the pit. He expects that reclamation would occur by refilling the site after each extraction if the site is to be made as good or better. He did not think that would ever occur. He asked where this fill material would come from. He stated that while few people benefit, many will suffer by this use. Virgil Idler, 19939 Birch Lane, stated that he has a well that is not very deep and he doesn't want to see a mine in there for that reason. He felt that their area was already too heavily impacted by existing mining activity.. He suggested getting. the resource from sites away from residential development. He did not feel that this one site was going to have any significant impact on the quality of cement in Deschutes County. George Fitzgerald, 19930 Birch Lane, showed the location of the streets on the map. He did not think there were five acres of minable property on the site. There was no further testimony on this site. Commissioner Maudlin stated that the Board would announce the-i-r decision on this site on September 6th at 10:00 AM. They will accept written testimony until August 16th at 5:00 PM. Site 303 George Read gave the staff.report. This is an.80-acre site owned by Cascade'Pumice. Staff recommendation was to allow mining with some restrictions. This is a site located off of Johnson Road within the Tumalo Winter Deem Range. They have recommended a winter closure of the site. Commissioner Maudlin called for advisory testimony from public agencies. Norm Behrens, Oregon Department of Fish.and Wildlife, reiterated that this site was within the winter-deer range, and requested that activity be restricted from December 1 through April 30, with no blasting during that period as well.* Commissioner Maudlin called for proponent's testimony. Chuck Clark, Cascade Pumice manager, came forward. He stated that the southwest portion of this site has been previously mined for pumice, but it•was not mined by Cascade Pumice. Bend Aggregate had mined some gravel from it. He did not think there was a site and reclamation plan yet on this site. The area that would be mined is about 25 acres at the most, and probably less-than that. There I was some discussion about whether this site was grandfathered or not, with no conclusion reached. Mr. Clark stated that the mining done in the past was gravel and pumice. Commissioner Maudlin asked for opposing testimony. i i LUBA 2009-061 & 062 03542 1 Lois Stoops, 61466 Tumalo Rim Drive, came forward representing herself and her husband, Al Stoops. Mrs. Stoops read aloud their prepared testimony. She stated that her husband suffers health problems and she asked that they consider the human element in their decision. She noted the proximity of the site to the Tumalo State Park, which is a popular destination for cyclists. Also, there are many people who walk along the roads in the area, which would be in danger due to truck traffic. She stated that the residential, tourism, and sport uses of the area are not compatible with mining. Robin Toomey, 64131 Tumalo Rim Drive, felt that the winter closure was not enough since the deer return in September. She has seen eagles, owls, porcupines, and badgers in the area. Carl Zuber, 64079 Tumalo Rim Drive, stated that he often walks in the area. He stated that about half of the site has already been mined for aggregate and the area to the west is pumice. He is concerned about the effects of wind and dust on the state park and concerned about impacts to wildlife: This is currently a juniper forest, and about the only area nearby that deer can run in the winter. He has also seen eagles there during the winter. He stated that the west side of the site has not been mined before and should be preserved. Steve Barber, '641'2l Tumalo Rim Drive, was' concerned about noise, dust and truck traffic on Johnson Road. There is a 40-lot development in the area that will be, affected. This pit is on a bluff that can be seen and heard from the state park. He stated that this is a major bike route, and there is no. bike lane on Johnson Road which would make further truck traffic very dangerous. He noted that usual wind patterns will-blow dust into the state park. The site is at most one quarter mile from the river. He was also concerned that trucks may come. directly through their development. There was no further public testimony offered on site 303. Site 356 Commissioner Maudlin called for declarations or challenges. There were none. George Read gave the staff report. This site is located on Mock Road and Tumalo Reservoir Road. The site was zoned SM in* 1982 after a zone change request. This is a 120 acre site owned by Tumalo Irrigation District and operated by Cacade Pumice. The site contains an estimated 2,000,000 cubic:yards of pumice according to an estimate made one year ago.' Conflicting Goal 5 resources are open space, and fish and wildlife habitat. Rural residential uses are a further conflicting use. There are 50 taxlots within one half mile of the site. Staff had'recommended approval with the standard conditions. One of the conditions was LUBA 2009-061 & 062 03543 '5~_ ~ NE IL GOLDSCHMIDT GOVERNOR Department of Transportation PARKS & RECREATION DIVISION Region 4 P.O. BOX 5309, BEND, OREGON 97708 PHONE 388-6211 August 15, 1989 Deschutes County Board of Commissioners 1130 NW Harriman Bend, OR 97701 RE: Surface Mining Site #303 . T17S, R12E, SEC07, TL300 Dear Commissioners: 7n)' re L7 Ur A LI G 1 15 ~S10ldERS Thank you for the opportunity to comment on the above surface mining site. This site is located `somewhat in between two parcels of Tumalo State Park property and within the Upper Deschutes River Scenic . Waterway. This state park property is' undev'e'loped but it is used by day hikers. The mining site is visible from the devel- oped portions of Tumalo State Park and the.Deschutes River. Our agency concurs with the Deschutes County staff report recom- mendations and would like to have the following restrictions included: 1. Due to the high campground and day use at Tumalo State Park we would like the hours of operation to be limited to between 7:00am to 10:00pm. These hours will not conflict with the "quiet hours" enforced in the park; 2. Vegetative screening to be planted and retained. on the eastern, northeastern and southeastern boundaries of the site to help with noise abatement and screen the project from view from the park properties and the river; 3. As this site is wi'thi-n the Upper Deschutes River Scenic Waterway, notification must be filed with our agency prior to any surface mining activity beginning. Thank you, again, for the opportunity to comment. If you have any questions, please contact me. Sincerely,. S an K. Ernst /jke 73410-804 LUBA 2009-061 & 062 03550 . 303 d .Z.1 COALITI FOR ONTHE DESCHUTES P.O. BOX 6013 BEND, OR 97708 August 11, 1989 Karen Green Deschutes County Planner Deschutes County Administration Building Bend, Or. 97701 RECEIVED AUG111989 Aned......... Dear Karen, The following sites appear to constitute the SM zones proposed within 1/4th mile of the Deschutes River: 322, 461, 326, 278, 251, 453, 368, 488, 370, 358, 489, 304, 305, 306, 303, 377, 384, and 423. This is one more in number than the number of hydroelectric sites proposed for the Deschutes River above Bend in 1986. At that time, as you will recall, the community expressed a strong preference for maintaining the Deschutes River in a non- _developed state. Deschutes County compissioned a River Studv'and an economic study which made the views of the-citizenry crystal clear. Being responsive to the needs of County. residents, the County Commissioners passed a set of ordinances which reflected the protectionist preference of its constituency. In 1988, largely as a result of local stimulus, the State of Oregon passed a law which included, among other sites, applicable sections of the Deschutes River within Deschutes County in the state scenic waterway program. Concurrently, the United States Congress passed a law which also set appropriate sections of the Deschutes River in Deschutes County aside as "wild and scenic." Our feeling is that the designations were meant to express a value judgment subordinating consumptive uses of the river and its corridor in favor of non-consumptive uses. While we understand that the Attorney General has confirmed SM as an allowable use in the State scenic waterway,, we are of the common sense notion that it is not the kind of activity which attracts users of scerric waterways. It is frustrating to spend-a significant portion of one's life providing what appears to be incontravertable protection to the river, in-terms of providing letters and testimony, funding and volunteering time, only to discover that the message has no meaning for those to whom stewardship is relegated. Of the wave of SM-sites, we have had time to evaluate only sites 251, 278 and 453. Your staff bas provided recognition of the fact that the site is contiguous to the Deschutes river in its analysis, Protecting Our Economic, Recreational and Environmental Future 2137 N.W. CASCADE VIEW ORIVE BEND, OREGON LUBA 2009-061 & 062 03548 1 r' however, there is no mention of standards or guidelines to guide the developer in the recommendations. Although we are in the possession of the 4/18/89 draft of ordinance 89-011 (the language of which may have changed with the final draft), we would argue that the recommendation should have setbacks, percentage screening requirements and address surface and subsurface waters at the very least. In other words, we believe that the recommended plan is completely inadequate. Site 251 repeats the sin of omission discussed for 278: That these sites are not in the scenic waterway may have inclined the staff omission, however,,,we contend that this-is a high use recreation area near Cline Falls State Park and as such deserves special protection. We would also observe that the river below these sites is effected by activities which occur upstream at these sites. This connection requires recognition from the County to assure that the scenic ecosystems are not degraded by. activities on these sites. ORS 390.845 (2) (c) states, Occupants of related adjacent land shall avoid pollution of waters within a scenic waterway." Site 453 is in the scenic waterway. Nonetheless, processing is recommended on site. This recommendation appears to be in direct conflict of the ORS 390.845 (1) statement, "scenic waterways shall be administered by the department, each in such a manner 'as to protect and enhance the values which caused such scenic waterway to be included in the system. In such administration primary emphasis shall be give to prgtec.ting the esthetic,•stenic, fish and wildlife, scientific and recreation features based on the special attributes of each area." We maintain that the conflicting Goal 5 resource values along the Deschutes Corridor outweigh those of surface mining and would request that the corridor be recognized by the county as a distinct and protected area in compliance with the apparent intent of the scenic waterway. This protection should extend as far as practible into the sections of the river which are not included.in the scenic waterway program. The preceding recommendation nothwithstanding, we would urge the Staff and Commissions to develop protective language which would be applied to '-each and every site zoned SM within the Deschutes corridor. We will be interested to discuss your management treatment of. the. sites mentioned above as well'as those which are not inventoried at this time. Si cerely,~ Eric E. Schulz cc/County commissioners Chairman Coalition for the Deschutes 939 NW Bond Bend, OR 97701 LUBA 2009-061 & 062 03549 DESCHUTES COUNTY BOARD OF COMMISSIONERS SURFACE MINING HEARINGS August 15, 1989 Deschutes County Administration Building 6:30 PM Call to Order Chair Prante called the meeting to order at 6:30 PM.' Also present were Commissioner Tom Throop and Commissioner Maudlin. Staff members present were Karen Green, Community Development Director, and George Read, Planning Director, and Sue Stoneman, recorder (arrived at 8:30 PM). Public Hearing Chair Prante outlined the purpose and procedures of the hearings. Sites to be heard tonight are 304, 306, 287, 288, 290, 291, 292, 293, 357, 393, 526. The order of the hearings was determined. Chair Prante called for any declarations of conflict on any of these sites. There were none, except Chair Prante noted she lived in the Johnson Road area and would not participate in decisions on sites in that area. There were no challenges. Site 304 George Read gave the staff report. The site is located on O.B. Riley Road off of Tumalo Reservoir Road and is presently zoned SM and LM, just south of the Bend Aggregate and Paving Co. headquarters. The site is owned by Oliver Fraser, and consists of 10 acres of ODOT quality aggregate estimated at 150,000 cubic yards. Staff had identified conflicting uses as land for open space and fish and wildlife-habitat. Staff recommended that this site be allowed with conditions, and that processing be allowed on site. The Planning Commission concurred with this recommendation. The site has a recent DOGAMI report. which includes a-reclamation plan. The photos in the file do not-indicate that there has been significant levels of mining on the site. Chair Prante called for neutral testimony. There was none. She then called for proponents, testimony. Jim Curl, 63925 Old Deschutes Road, stated that he is one of the owners of Bend Aggregate and Paving Co., which is just north of this site. This is listed.-as belonging to Oliver Fraser, who is his uncle and was a principle of the company. They recently purchased it from Mr. Fraser. He stated there is a significant resource on the site. The total site is about 37. acres. The DOGAMI permit area involves approximately 15 acres. Immediately south of their existing processing area is the 15 acre area, which is bordered on the west by a high ridge that goes up Tumalo 1 Reservoir Road and is bordered on the east by O.B. Riley Road and east of that is the Deschutes River. There is a 15 acre buffer zone which they are not including in the permit that is immediately south and runs to the "y" of O.B. Riley and Johnson Road. In concurrence with the State Parks Division, that will remain as a buffer zone. He submitted the permit and maps for the record. He stated that there has been no mining on this site. He stated that he thought the State Parks Division would submit testimony as to the conditions they would like to see apply to the site. They concur fully with those conditions. Chair Prante then called for testimony in opposition. Jan Ernst, Oregon State Parks, stated they are not really in opposition. She had written testimony to submit which refers to all the sites on the agenda tonight they were concerned with. They request that the buffer zone remain and that material processing be done at the existing Bend Aggregate plant and that there be 7:00 AM to 10:00 PM operating hours. Road access to the site should be limited to the north boundary and that vegetative screening be retained on the east side of the site. She stated that notification must be filed with their agency prior to any mining due to the site's proximity to the scenic waterway. Site 306 George Read gave the staff report. The site is located along Johnson Road southwest of the intersection with Tumalo Market Road, presently zoned SM and consists of 90 acres owned by R.L. Coats. The site contains aggregate and quarry rock resources which meet ODOT specifications, and contains an estimated 150,000 cubic yards. Conflicts include open space lands, fish and wildlife habitats and outstanding scenic views. There are also conflicts with residential dwelling units in the area. Staff recommended allowing the use with standard conditions. Planning Commission approved the staff recommendation, allowing processing for one year as long as it is reclaimed after mining. Chair Prante called for neutral testimony. There was none. She then called for proponents' testimony. R. L. Coats, 63285 Skyline Ranch Road, stated that this site was mined prior to 1972, so it was. grandfathered in. The site is pretty well mined out, about 150,000 cubic yards of rock remains, which is about enough for one more job. He thought one year was adequate and he would like to.mine it out in.a year and then reclaim it. He did not feel that 5 acres would be enough to set up the processing plant, they would need-ten. They would allow excavation only in the five acre site. There is now a reclamation plan on the site. If it were not zoned SM, he would have to go back in and reclaim it now. He can keep it in the state it is in if he pays his $385 annual fee each year. There is a stockpile of 2 {tom gipJ.:' 41. \ NY'N' `,~-~-iii:.:r J: .i[✓ sr~ ~ A 1-7 1'2.OG •00- 00,300 - 00101 ' -00W-M - ~ ~ ~ mil` l,~'•r.i • ~ t t 1 _i Document Reproduces Poorly r;_~•:::1J3: (Archived) : _ i r ^,1`~*~~•.,•, . Y d_ Ali - ILI t C) rn N t7 ' o N CL n T •V\I v RECEIVED DEP'i 0~ GEOLOGY or iA. 1NERALINPUS. } d o 4 • Flo . i'1.5 p .11 . a C3 ...1' L'p (:1 J R p O pFl..> p 0 cw_ 0 pF X t 59 NEIL GOLDSCHMIDT GOVERNOR Department of Transportation PARKS & RECREATION DIVISION Region 4 P.O. BOX 5309, BEND, OREGON 97708 PHONE 388-6211 August 15, 1989 Deschutes County Board of Commissioners 1130 NW Harriman Bend, OR 97701 RE: Surface Mining Site #304 T17S, R12E, SEC6, TL302, 300, 301, 701 Dear Commissioners: Thank you for the opportunity to comment on the above surface mining site which lies adjacent to Tumalo State Park. We understand that the only area within this site that has been given a permit by the Department of Geology and Mineral Indus- tries is in tax lots 300, 301 and 302. We would like to see that tax lot 701 be reserved as a buffer zone between the surface mining area and the State Park property. In addition to this buffer zone being retained, we would also like the following conditions to be considered: 1. Material processing to be done at the existing Bend Aggregate plant and not on this site; 2. Due to the high campground and day use at Tumalo State Park we would like the hours of operation within the surface mining site to be limited to between 7:00am and 10:00pm. These hours will not conflict with the "quiet hours" enforced in the park; -3. Road access to the site to be limited to the north boundary so as not to increase activity on the Old Bend-Sisters Highway or Reservoir Road; 4. Vegetative screening to be retained on the eastern portion of the site to help with noise abatement and screen the project from the road, park property and river; 5. As this site is within the Upper Deschutes River Scenic Waterway, notification must be filed with our agency prior to any surface mining activity begining. Thank you, again, for the opportunity to comment. If you have any questions, please contact me. Sincerely, K. Ernst Region Coordinator 73410-804 , - --F , - - Reservoir Road and is bordered on the east by O.B. Riley Road and east of that is the Deschutes River. There is a 15 acre buffer zone which they are not including in the permit that is immediately south and runs to the "y" of O.B. Riley and Johnson Road. In concurrence with the State Parks Division, that will remain as a buffer zone. He submitted the permit and maps for the record. He _,stated that there has been no mining on this site. He stated that he thought the State Parks Division would submit testimony as to the conditions they would like to see apply to the site. They concur fully with those conditions. Chair Prante then called for testimony in opposition. Jan Ernst, Oregon State Parks, stated they are not really in opposition. She had written testimony to submit which refers to all the sites on the agenda tonight they were concerned with. They request that the buffer zone remain and that material processing be done at the existing Bend Aggregate plant and that there be 7:00 AM to 10:00 PM operating hours. Road access to the site should be limited to the north boundary and that vegetative screening be retained on the east side of the site. She stated that notification must be filed with their agency prior to any mining due to the site's proximity to the scenic waterway. Site 306 George Read gave the staff report. The site is located along Johnson Road southwest of the intersection with Tumalo Market Road, presently zoned SM and consists of 90 acres owned by R.L. Coats. The site contains aggregate and quarry rock resources which meet ODOT specifications, and contains an estimated 150,000 cubic yards. Conflicts include open space lands, fish and wildlife habitats and outstanding scenic views. There are also conflicts with residential dwelling units in the area. Staff recommended allowing the use with standard conditions. Planning Commission approved the staff recommendation, allowing processing for one year as long as it is reclaimed after mining. Chair Prante called for neutral testimony. There was none. She then called for proponents' testimony. R. L. Coats, 63285 Skyline Ranch Road, stated that this site was mined prior to 1972, so it was. grandfathered in. The site is pretty well mined out, about 150,000 cubic yards of rock remains, which is about enough for one more job. He thought one year was adequate and he would like to mine it out in a year and then reclaim it. He did not feel that 5 acres would be enough to set up the processing plant, they would need ten. They would allow excavation only in the five acre site. There is now a reclamation plan on the site. If it were not zoned SM, he would have to go back in and reclaim it now. He can keep it in the state it is in if he pays his $385 annual fee each year. There is a stockpile of 2 lb U d `J 2 J t ~~~I((~~D94' i~ \ y_+ M~ w r t>" is aiV - w f d, ~ N~ r.J V -r ~a Y~ S t~ X,