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HomeMy WebLinkAbout6-13-11 LUBA Docs Submitted at MtgBEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY REMAND PROCEEDING ON MA -083, CU -07-102 AND SP -07-46; LATHAM EXCAVATION SURFACE MINE SITE NO. 303 Brief by Eric and Ronna Hoffman in Opposition to the 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 That land use approval is no longer applicable and has been superseded by the Applicant's actual operations of the site.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 1'aul D. Do%ev, OSB 478178 1539 NW Vicksburo Bend, Orceun 97701 (541) 317-1993 2 attached Geologic Profile: B -B1 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 13`b day of June, 2011. Respectfully submitted, PAUL D. DEWEY Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541)317-1993 Paul D. Dewey Attorney at Law 1539 NW Vicksburg Bend. Oregon 97701 (541) 317-1993 fax (541) 383-3470 Rdewey(iPbendeable.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: 1 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 AND SP -07-46; LATHAM EXCAVATION SURFACE MINE SITE NO. 303 Brief by Eric and Ronna Hoffman in Opposition to the 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: -"Concerns 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 anal sis. 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 .otential impact of mining and removing 3.7 million cubic yards of tuff, creatin the possibility of leavina 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. De,%o, OSB 978178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 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 si• nificant de osit 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 1). Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541)317-1993 3 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 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." (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. [)cwo., OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541)317-1993 0 0 0 0- 0 0 0 0 0 0 0 o 0 0 0 0 N C9 In [o N 0 0) t0 to t0 • to tO to to to t0t<) K) to to t0 U t U Q) 0 L S _0 0 I\Q) 0 Cr) 0 N 0 L 0 0 LE 0 to - — - — aur' �alad o�d L(ynoc, .xo-iddy 0` t3 U x W z L ect March 2007 0 0 ;r N E 0 ,j N N a E F 0; 0 - +) B 2n t6 E+-1 � r.� F3 -v io 1� -a 2 E u _It, q V J t S m / c143 N tI� y o 9 i V/ m C O Xm WC v 0 0 0) 0 to tO N 00C -LL eun /C}J3doJJ 4yON _ o N t9 0 to N to to 0 to to 0 to to 0 N 0 0 to t4 0 (3) to 0 N to F.14 Slab ig S 1115116111111•1111raliatilil 111111116/ OWEN it! halia`tatari C-4W4fir VOrgq E CS n t) t) s 7 0 (Looking East) 1 1 r r 1 1 1 t I 3 1 1 1 t 0 0 O_ b 0 0 o 0 0 000 In 0 O 0 0 00 0 0 m m N tto to to to til t j to to to pun Al-aado.0 ya.noGG xa.ddy r) U_ O co 0 cTs 00 0 > N N Q qs S 06w k2. (Q a) E+' m RS t o, 00 L N 0 DZ O 5)o- u° E .il IL N .- 0 Z 73 S E Li - 4) N V - Q) Q) _ Tri- 1 `) F— d LL U �_> 0 I0 O to to 0 to 0 0 0 3 K) to to 0 N Irrigation Pond 1.02 "IJ. - — - 3 a 0 cot to to to to to 0 M) to 0 0 N m O 0 0 O 1N co 3 r� � c 1 � 2 b ▪ ? % \ \ \ \ \ \ \ n \ • n $ \ ƒ [ [ 2 [ [' ( § / (Looking East) — _ems aaa#mgr as 0 2 \ § N. ;5 6 irl 0 § R iii < Qs z X 2 AS cd ill (ts EE� 2 RS 0 / / RS Cil t 0 DZ ? / / 2 ƒ / 0 Q L L / \ S E z_ z..i3----Cs / 0 Z _ I— \ \ / Horizontal: 1 inch = 100 feet � ƒ / : e }/N ® E \ t 2 o4 �}/ \ii } $ 2 t /) \ \/ Q O 2! \ ] !J o \ } (,) { 4 }§ }!E !! NE >)2t>)2tri E \I 002 mn� wsaw�ON E ƒ ; § E ) \ Lower Basalt: Vesicular o t 6 00 9 § % ) b' 0 \ \ \ 0 (3)[ r n r / n n n. R R n n n n n n r to n n. n n E Basalt likely underlain by welded tuff: Volcanic Ash T 1 1 1 \ ) \ / / N \ \ to \ \ / ( ( [ ( ----- -- ®mom acuA 4nO eo d Geoloyic Profile: C - C' § \ r b \ 10 § m \ ) ' J J J Q § g 0 0 \ ) \ 0 \ r / c� 000 -LI wee a0-1,3 LOJON 1 \ G m ( \ n § to b / § e / G e [ § & [ L /\ BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY REMAND PROCEEDING ON MA -083, CU -07-102 AND SP -07-46; LATHAM EXCAVATION SURFACE MINE SITE NO. 303 Brief by Eric and Ronna Hoffman in Opposition to the 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, 0S13 478178 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. Dewe, OSB W75178 1539 NW vicksbure Bend, Oregon 97701 (541) 317-1993 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY REMAND PROCEEDING ON MA -083, CU -07-102 AND SP -07-46; LATHAM EXCAVATION SURFACE MINE SITE NO. 303 Brief by Eric and Ronna Hoffman in Opposition to the 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. OSR #78178 1 539 NW Vicksburg Fiend, Oregon 97701 (41) 317-1993 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY REMAND PROCEEDING ON MA -083, CU -07-102 AND SP -07-46; LATHAM EXCAVATION SURFACE MINE SITE NO. 303 Brief by Eric and Ronna Hoffman in Opposition to the 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, 18.52.1 10(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. Dewe, OSB #78178 1539 NW Vicksburg Bend Oregon 97701 (341) 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 1). Dew cy, OSB #78178 1 539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 EXHIBIT "C" r 1 1 1 1 December 12, 1988 MEMORANDUM: TO: 1kOM: SUBJECT: FILE NO. COPY TO: Legal Cauns: Adminlstratlon 8idg. / Send, Oregon 97701 / (5031388-662? BOARD OF COUNTY COMMISSIONERS KAREN H. GREENS"" Assistant Legal Counsel Surface Mining Goals and Policies 1-534 Craig Smith, Planning Director Chuck McGraw, Associate Planner Richard L. (sham, County Legal Counsel Karen H. Green. Assistant Legal Counsel Bonnie Carrell, Legal Assistant 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," 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 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY REMAND PROCEEDING ON MA -083, CU -07-102 AND SP -07-46; LATHAM EXCAVATION SURFACE MINE SITE NO. 303 Brief by Eric and Ronna Hoffman in Opposition to the 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, 0S13 #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 AND SP -07-46; LATHAM EXCAVATION SURFACE MINE SITE NO. 303 Brief by Eric and Ronna Hoffman in Opposition to the 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 U. Dewey, 0513 #78178 1539 NW Vicksburg Bend, Ore,on 97701 (541)317-1993 Ili i MINIM • M • • 1 ift. 1 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. II. 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 1 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 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 general 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. 3 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 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 5 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 Adjacent 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 %2 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 .1/4 -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 'A mile of Hoffman No. 1 residence to a place outside the 1/4 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 Tess 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. 8 - 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 ites 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 are as stated - 1/4 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. Com • Iiance with visual screenin: sites Subject Provision: DCC 18.52.140(A) 2009 Findings: pp. 67-68 LUBA's decision: p. 62 Latham Response: re uirements for the northeast and southeast crushin 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 Site 303 ESEE Exhibit 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, 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, OAR660-16-000, 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 X62 Pf �.- (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. Thesite 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 Paq_R�gr-oo9f fi' 'os2 04182 (3) 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. 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 �chibt� Page; 04183 2009-061 & 062 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 one 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 Exhibit Pagel l 2 04184 062 Ay 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 Tamale 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 sitetoward 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 Exhbt Page b ZR i : 062 04185 1 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 wouid 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 EAItb Page-uBg7204NA062 04186 1 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 valueof 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 go • Exhibit :=QQ Paget 04187 )3)5- 1 & 062 1 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. r 1 i 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 rile 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 Exhibit, P5ig 04188 • :_. . • A 1 etU62 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 Exhibit Pa, s2 04189 1 w 1 1 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 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 PaigJt 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; (o) 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); Mining operations, including placement of processing operations and equipment and excavation and transport of material shall meet all applicable DEQ noise and dust standards. {f) 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 ExhPageibit.., g r & 062 04191 1 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 besited 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 Exhibit ��rr'�� Page - /9 ` 8.062 04192 (b) 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 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 1 1 1 1 1.,1 • • - t e‘, 1-';':!' -•-•--.6- . • jA Sri -6 303 1201- oct • 00300 Sail Lc., '•••:*": 71 1 PgRA2247gATtet2 04194 App- - -q - Scope of ESEE Excerpts 2009 BOCC Decision Exhibit L 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. b. Type. of 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 othcr 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 __being made up of 30°%0 pumice inclusions by weight. Because of the nature of 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 LUBA 2009-061 & 062 00016 1 1 1 1 1 1 1 J 1 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 611 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. Sitnilarly, the Board finds, from a comparison with two nearby surface mining sites, Sites 304 and 3051306, 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 Sitc 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 arc 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 Sitc 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. Crushi g. 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(I) 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 i 0.52.140 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 LUBA 2009-061 & 062 i 00017 Google Map Showing Tumalo State Park and Sites 303, 304 and 305/306 Exhibi 5'itis #30 r13 1 mage 2 )11 Digital[ , e '2(11 Gaoglet ! -' , . 44°07 43 34" N , 24' .9'59.11" W elev" 3202t Afefg Kit f4wi+1 too t oi.3 I gte:i 303 30 It/ 441 3or13o 'Id INV /144416 Mt, Art% ,#1s v s L,h 1 13 ec17 04- (- PA (vocck,;,). ESEE Programs Sites 303, 304, 305/306 (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 it will limit the use of the mineral resource and existing conflicting uses surrounding the site in 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. PROGRAM TO MEET THE GOAL 660-16-010 the favor of is not significant would limit the use The displaced lands in the them to occur at or 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 • r • 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 following E EE 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 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 12 - ESEE FINDINGS AND DECISION - SITE NO. 304 (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 �li- 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. 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. 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 14 - ESEE FINDINGS AND DECISION - SITE NO. 305/306 1990 Hearing Record Site 303 E�u°bit 5 MAUDLIN: 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..was..;.currently.._ zoned surface mining in a Wildlife Area Combining Sone and contained 10,000 cu yds of good quality aggregate and 750,000 cu yds of pumice. The staff report recommended surface mining 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,-andlastly, that the Park and Recreation Department benotified 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 siteL 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 i6LC �4ea bikes riding near the edge of the pit. Be expects that reclamation would occur by refilling the site after each extraction if the site is to be made as good or better. Ne 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 their 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 Ca6cade'Pumice. Staff recommendation was to allow mining with some restrictions. This is a site located off of Johnson Road within.the Tumalo Winter Deer 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 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. 8 LUBA 2009-061 & 062 03542 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, 64122 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 9 LUBA 2009-061 & 062 03543 73410-804 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 k303 T17S, R12E, SEC07, TL300 Dear Commissioners: ED ) L1G 1 6 1909 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'isundeveloped 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:O0am to 10:OOpm. 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 within 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, an K\ Ernst /jke ,„�;;iONERS LUBA 2009-061 & 062 03550 363 COALITION THE DESCHUTES P.O. BOX 6013 BEND, OR 97708 August 11, 1989 Karen Green Deschutes County Planner Deschutes County Administration Building Bend, Or. 97701 RECEIVED AUG 111989 Ans'd.......... 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 Study 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 scenic 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 has 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 DRIVE BEND, OREGON LUBA 2009-061 & 062 03548 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 protecting the esthetic, scenic, 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 Chairman Coalition for the Deschutes 939 NW Bond Bend, OR 97701 cc/County Commissioners LUBA 2009-061 & 062 03549 1990 Hearing Record Site 304 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 J , ) • 1.11 . \- • .\ 3" ) 35' - I I c • - 1.1. •••••••• •. • - 7 -\-• • s r. s 1 -r -e 3Dy 120(0 •oo- 00)00 - 00 3 0 1 - 00 301- "•‘.1 - — _ 9,-0006 RECEIVED JUN 1 2.1989 DEPT OF GEOLOGY +'iiNFRALINDUS. -- o J Q t ,1 o o � i jj . l'--, „ ey*-' r , �! o n Q- - — o `fir Frn 5`� - t.t.,:4-----H... _ V O O r 0 ©`r9. 0 0 o c-) 0 S-Jl(1110S-JU it NEIL GOLOSCHMF'JT GOVERNOR 73410-804 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:OOam and 10:OOpm. 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 1990 Hearing Record Site 305/306 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