Loading...
HomeMy WebLinkAboutDoc 498 - Latham Decision For Recording Stamp Only REVIEWED ______________ LEGAL COUNSEL DECISION OF THE BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES COUNTY FILE NUMBERS: CU-07-102/SP-07-46 (MA-08-3, MA-08-4) APPLICANT: Mark Latham Excavation, Inc. dba Latham Excavation 84 SW 5th St. Bend, Oregon 97702 PROPERTY OWNER: McClain Investments, LLC 62628 McClain Drive Bend, OR 97701 APPLICANT’S ATTORNEY: Bruce White Bruce W. White, Attorney, LLC PO Box 1298 Bend, OR 97709 REQUEST: Site plan approval for proposed surface mining operation at Site No. 303 to extract and process pumice and overburden resources, including the addition of a scale and scale house. Approval of a conditional use permit to allow crushing at three alternative sites for excavated material. PROPERTY: Tax Lots 17-12-07-300 and 301 STAFF CONTACT: Paul Blikstad, Senior Planner RECORD CLOSED: June 24, 2011 I. SUMMARY OF DECISION: In this decision, the Board of County Commissioners (“Board”) is asked to decide on a remand order from the Oregon Land Use Board of Appeals (LUBA), on a site plan to expand the mining of pumice and to include the associated overburden, including volcanic tuff and incidental aggregate, and a conditional use to allow crushing of such materials on site. The case comes to the Board on remand from LUBA, through the final opinion and order nos. 2009-061 and 2009- 062. The prior Board decision dated April 30, 2009 is adopted and incorporated by reference herein, except as provided below. CU-07-102, SP-07-46 (MA-08-3, MA-08-4) A-08-14, A-08-20 Page 1 In this decision, the Board amends the previous decision of the Board dated April 30, 2009, as outlined in the LUBA remand final opinion and order. On the issues presented by the LUBA remand final opinion and order, the Board decides as follows:  The proposed mining is not within the scope of mining anticipated by the ESEE as to the headwall and type of material. Specifically, the Board finds that the Tumalo Tuff resource identified in the record was not inventoried as part of the ESEE approval for surface mining site no. 303, and the mining and removal of the Tuff and the headwall were also not contemplated in the 1990 ESEE. The applicant will thus be required to submit a Post Acknowledgement Plan Amendment (PAPA) application to the Deschutes County Planning Division if they desire to mine and remove the Tuff. The Board also has determined that additional mining of the pumice resource on the site below the Tuff would necessitate increasing the size of the headwall, and that increasing the size of the headwall will have to be reviewed as part of revised/updated ESEE.  The Board finds that any PAPA application review will include the screening requirements for the Hoffman residence, as well as the screening requirements for Tumalo State Park, as outlined in the Hoffman third assignment of error (two sub- assignments of error).  With respect to the existing storage piles of minerals (overburden) at the site, the Board finds that the piles within the quarter-mile setback established under DCC 18.52.090(B) that have been overgrown with vegetation can remain in their present location, except for the pile nearest the Hoffman property which the applicant offered to move. The Board finds that there is no on-site location for these materials which will have less noise or dust impacts. The piles that are not vegetated must meet the quarter-mile setback, except for the piles within a quarter-mile of the dwellings to the south of the subject property, which are buffered by the steep slope. (Hoffman fourth assignment of error).  The Board finds that the County will rely on the 5-acre extraction site size under DCC 18.52.110(K), and the existing site requirement of restoring the current hillside cut at a slope of 11/2:1, to meet the ESEE requirement for “ongoing incremental reclamation.” (Hoffman fifth assignment of error). Additional reclamation issues may also be addressed in any subsequent PAPA.  The Board finds that the three crusher locations were shown to meet the quarter-mile setback under DCC 18.52.090(B), and that the noise study submitted with the application demonstrated that these locations would meet DEQ noise regulations. (Latham first assignment of error)  The Board finds that the southwestern crushing site was already approved in the prior proceedings, based on its location in a lower elevation and buffered by the existing tuff storage pile. The northeastern and southeastern crushing sites are more exposed and the applicant has indicated they will construct earthen berms adjacent to these crushing sites. CU-07-102, SP-07-46 (MA-08-3, MA-08-4) A-08-14, A-08-20 Page 2  The Board finds that the dust impacts of the headwall, and increasing its size, will need to be addressed in the PAPA required above. Unless the applicant can demonstrate through the PAPA process that the dust can be mitigated (and any necessary buffering determined), the headwall cannot be increased. (Latham third and fourth assignments of error) II. APPLICABLE CRITERIA: The Board re-adopts its prior findings in this section and incorporates them herein by reference. III. BASIC FINDINGS: The Board re-adopts as its basic findings in its prior decision in Sections II (A) through (J), incorporated by reference herein, except as noted, replaced or amplified below. A. PROPOSAL: The applicant is requesting approval of a site plan and conditional use permit to operate a surface mine on the site. The subject property was most recently mined for pumice, as approved in the surface mining approval from 199 (SP-95-10). Applicant’s site plan proposal is included on a revised site plan map submitted on March 20, 2008 as supplemented by the map submitted at the April 15, 2008, hearing, including three proposed processing locations and showing five arcs, representing quarter-mile setbacks from nearby noise and dust-sensitive uses. The site plan also reflects a revised location, as shown on the map submitted on April 15, 2008 (showing the quarter-mile setbacks), outside the quarter-mile setback for the southeast processing location. B. PROCEDURAL HISTORY: The Board adopted a decision in this case on April 27, 2009 and mailed it out on April 30, 2009 to all parties. The Board’s decision was appealed to the Land Use Board of Appeals (LUBA) by both the applicant and opponents Eric and Ronna Hoffman. The Hoffmans appealed LUBA’s decision to the Oregon Court of Appeals but based on limited issues. The Court of Appeals upheld LUBA’s decision in favor of the county on those issues. The Hoffmans appealed the Court of Appeals decision to the Oregon Supreme Court and the Supreme Court denied review. LUBA then issued its Final Order, which is dated May 17,2010. On April 30, 2011, the applicant requested that the remand process begin. That was a Saturday; thus, the 90-day period began on May 2, 2011 and ends on August 1, 2011. CU-07-102, SP-07-46 (MA-08-3, MA-08-4) A-08-14, A-08-20 Page 3 The Board held a public hearing on the LUBA remand on June 13, 2011. The hearing was de novo, but limited only to the remand issues identified by LUBA. The written record was left open until June 20th for additional comments/argument, and the applicant was allowed to submit final argument by June 24, 2011. In the applicant’s June 24, 2011 submittal, the applicant requested that the Board disregard the testimony of Cascades Academy, Mike Van Ness, Skip and Karen Grossman, and Sanders and Danielle Nye. The applicant based this on the following language of DCC 22.34.030(A): “Unless state law requires otherwise, only those persons who were parties to the proceedings before the County shall be entitled to notice and be entitled to participate in any hearing on remand.” The Board, however, interprets that provision to mean that persons who participated in the proceedings below must be allowed to participate in a hearing on remand and that others may participate at the discretion of the Board. Thus, the Board chooses to allow the testimony of the listed people to be entered into the record in this de novo proceeding. That being said, the Board does not rely on the testimony of those people in making its decision on remand. The Board finds that the previous record and the testimony of the applicant and the Hoffmans, in addition to the arguments of the parties submitted to LUBA, and the LUBA decision to be sufficient evidence to support the Board’s decision on remand. IV. FINDINGS OF FACT AND CONCLUSION OF LAW SPECIFIC LEGAL ISSUES The Board finds that the issues addressed in the Board’s prior decision on these applications under this category (specific legal issues) is relevant, and incorporates them herein by reference, with the following changes. B. Deschutes County Comprehensive Plan ESEE for Surface Mining Need for New ESEE In order to determine whether or not a new Environmental, Social, Economic and Energy analysis is necessary for mining the tuff and the headwall, the Board must determine the boundaries of the area approved to be mined in SP-95-10. LUBA described the headwall by saying, “Recently a portion of the northwest edge of the hill has been mined, creating a 50-foot headwall that is approximately 900 feet long.” (LUBA Rec. pg. 3) The applicant describes its site plan proposal as allowing the headwall to be expanded vertically about 20-30 feet and horizontally by 650 feet. The 1995 site plan map is difficult to read, but the Board interprets the boundary of the SP-95-10 site plan as being the lines on the map and, in the case of the hillside, the Board interprets those lines to be at the 30-35 foot level above the line of pumice as described in the SP-95-10 decision. The discrepancy between that finding and LUBA’s description of 50 feet may be that the excavation has crept higher than the 30-35 feet and there has also been excavation downward, which increases the height of the headwall. LUBA found that a local government’s determination of the quantity and quality of mineral resources at a particular surface mine site not only determines whether the mineral resource is CU-07-102, SP-07-46 (MA-08-3, MA-08-4) A-08-14, A-08-20 Page 4 significant, but also what, if any, conflict resolution, Economic, Social, Environmental and Energy (“ESEE”) analysis or “Program to Achieve the Goal” should be adopted. (LUBA at page 13). LUBA also found that a surface mine is not strictly bound by the amount of mineral resources estimated for an inventoried resource in the ESEE and that a non-inventoried mineral can be afforded the Goal 5 protection if the mining of that non-inventoried mineral is incidental to the mining of the inventoried mineral on the same site. (LUBA at page 16.). LUBA then concluded that an amended ESEE Findings and Decision for Site 303 that imposes additional restrictions on mining to provide additional protection for the conflicting uses might be justified. LUBA based this on the concerns expressed in the Site 303 ESEE about both visual and dust impacts from the mining operation on the Deschutes River Scenic Area, nearby Tumalo State Park, and other nearby uses, and on the possibility of dramatically increased impacts on those resources if the tuff is mined and a larger headwall becomes a permanent fixture of the property after reclamation (LUBA at pages 19-20). Additionally, LUBA noted that there was no serious dispute between the parties to the appeal that the visual and dust impacts from the mining operation on the Deschutes River Scenic Area, Tumalo State Park and other nearby uses could be dramatically increased if mining and removing the tuff produces a much deeper final excavation and larger headwall. The Board finds that, as a result of reviewing the arguments presented to LUBA, LUBA’s decision and the more narrow focus of the remand hearings, it better understands the nature and volume of the tuff the applicant is proposing to mine and the potential impacts from mining this non-inventoried resource. Additionally, the Board finds that the mining of the headwall to the extent proposed by the applicant was not anticipated in the ESEE for Site 303. Neither the headwall nor the tuff was mentioned in the ESEE. If the height of the headwall and the volume of the tuff proposed to be mined by this applicant had been contemplated by the Board in 1990, the Board would not have chosen to balance conflicts in the same way and with the same Program to Meet the Goal. Therefore, the Board no longer finds that mining and selling the tuff is incidental to the mining of the inventoried pumice at Site 303. This, then, necessitates a new ESEE or an amendment to the existing ESEE to evaluate the tuff and any impacts with conflicting uses that mining the mineral may cause. The Board finds the new ESEE necessary because Site 303 ESEE would have included an analysis of the tuff and headwall, had the Board known about them, since the ESEE was describing the mining activity as it was occurring and the Board found that it was an existing mine that would likely be allowed to continue as it was operating prior to the adoption of the ESEE. The description in the ESEE for the sand and gravel was that it was nearly gone. Furthermore, while there was discussion about the pumice having some economic value, there was no discussion of the economic value of the tuff. The current economic value of the tuff is irrelevant for purposes of determining whether or not the Board in 1990 would have balanced the conflicts in the same manner as it did for the pumice. Thus, the lack of a description of the removal of large volumes of tuff as part of the then existing mining activities indicates to the Board that the Board in 1990 was likely unaware of the non-inventoried material being mined and removed, let alone the volume of the material, and, thus, unaware of resulting impacts to the conflicting uses to be protected. CU-07-102, SP-07-46 (MA-08-3, MA-08-4) A-08-14, A-08-20 Page 5 The previous decision not to require an amended ESEE for the mining of tuff and the headwall was in error and the Board now realizes that it misunderstood the relationship between the volume of the tuff being mined and the impacts to the protected conflicting uses. Although the profile of the depth of the minerals was in the record previously (LUBA Rec. at 4220), the sheer volume of the record overwhelmed the Board at the time and that particular document did not stand out as it does now. That document helped to call to the Board’s attention this time to the huge volume of tuff being mined - 3.4 million cubic yards (See the chart at Rec. 4203 - 2.6 acres of Tumalo tuff, .2 acres of reworked Tumalo tuff and .6 acres of Desert Springs tuff). Thus, the Board realizes that the previous requirement of better demonstration of dust control when mining the headwall was actually something the Board should have required to be determined as part of a new ESEE. Now that the Board better understands the actual volume of tuff proposed to be mined and sold off-site and better understands potential impacts to conflicting uses from the expanded mining of the headwall, the Board finds that a new ESEE is the only way to determine what should be that adequate dust control. Because of the inquiry which LUBA directed the County to conduct as to whether the ESEE and Program to Meet the Goal would have been different if mining the tuff and creating the headwall had been known, we also reviewed the legislative history of the adoption of the ESEE for Site 303. Under the State v. Gaines decision and ORS 174.020(1)(b), legislative history may be consulted in determining the intention of legislation. First, it was repeatedly stated to the Board in 1990 that only 25 acres of the proposed 80-acre site were to be mined. The proponents of the mine site testified to the Board, “The area that would be mined is about 25 acres at the most, and probably less than that.” At another meeting the County Staff reported to the Board again that the Applicant testified that he only wanted to mine “25 of the 80 acres.” Additionally, the ESEE itself describes the surface mining impacts associated with “the opening of a pit in the ground.” The ESEE record is clear that all that was contemplated was the opening of a pit in the ground with a maximum size of 25 acres.1 Where there is no mention in the ESEE or in the ESEE record of mining the tuff or of creating a headwall, these activities were obviously not assessed and a new ESEE is necessary if the Applicant wishes to expand the headwall or mine and remove the Tumalo tuff. The applicant argues that the mention of the 25 acres was merely an expression of intent on the part of the Cascade Pumice and, therefore, not binding on subsequent applicants because there was no 25-acre limitation in the Site 303 ESEE. The discussion of the 25 acres, however, informs the Board that the Board in 1990 was not considering the mining of such a large amount of tuff nor of the headwall because that quantity of tuff and the its impacts would not likely occur in just the 25 acres. Otherwise, there would have been more of a discussion of those impacts in relationship to the size of the area to be mined. Though the entire 80-acre site is identified as a mining site, it was clearly contemplated that only 25 of the 80 acres would actually be mined. The Applicant points out that nothing in the Program to Meet the Goal limits mining to the 25 acres or indicates where mining is to occur on the site. The Applicant asserts that it is well settled that it is what is in a governing body’s written decision that matters, not what is in the 1 There are a couple of other pages of analysis where the proposed mining area is described as being 40 acres. That figure, though, was apparently not brought to the attention of the Board. CU-07-102, SP-07-46 (MA-08-3, MA-08-4) A-08-14, A-08-20 Page 6 record. It is also the case, however, that the designation of this site for mining in the ESEE was a comprehensive plan amendment and, as such, was a legislative decision. The Applicant also argues that, because of the generic nature of the ESEE, there is no basis for the Board to have made a different decision if the tuff had been explicitly considered. The Applicant further argues that the conflicts and consequences addressed in the ESEE are stated in generic, broad-brushed terms and that the Program to Meet the Goal is generic as well. The Applicant’s argument is that where the ESEEs did not consider the form of excavation for how a site may be reclaimed or the exposure of a cut, it would be inappropriate to assume that the Board in 1990 would have done so for this site if it had contemplated mining of the tuff. It is not correct that the ESEE for Site 303 is so generic that it would not have made any difference to the Board to know that what would be entailed in the mining operation is the mining of 3.4 million cubic yards of tuff and the creation of a large headwall. The ESEE specifically addresses concerns about visual and dust impacts on Tumalo State Park, the Deschutes River Scenic Area and other surrounding uses. Also, as LUBA noted in its decision, where the Board recognized there was a threat, such as to Tumalo State Park from Sites 304 and 305/306, limitations were imposed. Given the Board’s concerns for the surrounding natural resources in the area, we believe that the County would have analyzed the impacts of mining such a large additional amount of material and the creation of a headwall had it known that that was what was planned. Additionally, we know of no other proposed headwall in such a sensitive site such as this. The Applicant asserts that ESEEs under the law are only required to address the general nature of conflicts and are not required to do a fully-articulated analysis. Whether or not that assessment of the law is correct, it is clear that the Board in 1990 was specifically concerned about visual and dust impacts on specific sensitive sites around the mine. In a related argument, the Applicant asserts that it is not appropriate to assume the specifics of what impacts are known today as a measure of what the Board would have decided in 1990. The argument is that it would not have been known or assumed that there would have been a headwall associated with the mining. First of all, we do not believe that this argument is consistent with what LUBA directed us to do on remand. The test as LUBA described it is whether the possibility of a large, visible headwall that may continue to produce dust would have changed the Goal 5 program. It is entirely appropriate to consider the possibility of a headwall entering into an ESEE assessment. Additionally, we do believe the Board would have been aware of the potential scope of impacts where such a large volume of tuff, 3.4 million cubic yards, would have been proposed to be mined. That would not have been at all consistent with the representation that only 25 acres of the site would be mined or that the mine site would consist of an open pit in the ground. The applicant also pointed to other ESEEs that also described the mining areas as “pits” despite that mining would occur along headwalls. Because, however, the Board is more aware now of the volume and potential impacts from mining the large amount of the non-inventoried tuff and the potential impacts from mining that tuff on the headwall, the Board no longer finds persuasive that the ESEEs for other mining sites that are mining slopes do not mention the headwalls. As LUBA (LUBA decision pg 19) and the applicant pointed out, some of those other sites have restrictions for the mining activities that Site 303 does not. Given that those other sites have CU-07-102, SP-07-46 (MA-08-3, MA-08-4) A-08-14, A-08-20 Page 7 lower volumes of significant mineral resources, the Board finds that indicates that the Board in 1990 must not have considered such an extensive mining of the headwall at Site 303, and, therefore, was not aware of the volume of tuff being removed. Otherwise, the Board would have included more specific protections in the Program to Meet the Goal or would not have included screening requirements since, as the applicant has argued, the screening requirements will be less than effective for the headwall that would be created. Specifically with regard to the headwall, the Applicant argues that it cannot be assumed from the ESEE record that allowing tuff to be mined will necessarily result in a headwall. It is argued that the Board in 1990 had no basis to assess how much of a headwall would be left, so it cannot be said that the Board would have contemplated that kind of impact. The Applicant points out that there are no specifics on where the resource is or the mining method to be employed. The Applicant further asserts that the ESEEs from that era had an apparent disregard for the final configurations of mining sites and that we cannot say the Board wouldn’t haven’t allowed mining even if it had known of a headwall. Once again, we understand LUBA’s direction to be that we should assess whether the possibility of a large visible headwall that may continue to produce dust would have changed the Goal 5 program. We also assume that the Board in 1990 knew that there was a hill on the property since it is described in the ESEE. We also assume, based on the fact that existing mining was on the flatter ground and that the assumption was that only 25 acres of the site would be mined that if such an additional larger amount of material such as 3.4 million cubic yards would be mined that the Board would have assumed that the hillside was going to be cut into. Finally, the argument that the Board would not have been concerned about a highly visible headwall is simply not consistent with the Board’s concern for protecting Tumalo State Park and the Deschutes River Scenic Area. Just as the closer proximity of Sites 304 and 305/306 to the Tumalo Rim Subdivision and Tumalo State Park was found to justify special restrictions, we believe that a proposal to mine tuff and create a highly visible headwall would have led the Board to impose additional restrictions on the mining. It is also not accurate to state that the Board was never concerned about landforms that resulted from mining. The ESEE itself describes mining as a transient use after which other uses may occur. The resulting land form after mining is important for allowing future uses to be possible. Furthermore, there are ESEE examples where the Board did not allow excavation of areas that would be visible. For example, the Board required a specific slope for the final contours of a mine site, Site 294, and precluded mining of two benches of material at a sensitive site at Twin Bridges (Site 368). Where the Board was aware that there could be a problem with the visibility of landforms, it did address the problem. The record does includes many photos and discussions regarding other headwalls near this mining site where visibility did not seem to be a problem, such as those along roads in the area or other mining sites. They are not, however, persuasive in determining how concerned the Board in 1990 would have been with visual impacts at this sensitive site near Tumalo State Park and the Deschutes River Scenic Area. The fact is that it must have been at least somewhat concerned or it would not have required screening in the Program to Meet the Goal. CU-07-102, SP-07-46 (MA-08-3, MA-08-4) A-08-14, A-08-20 Page 8 An additional reason asserted by the Applicant for why the Board in 1990 would not have imposed additional restrictions had the headwall and mining of tuff been contemplated is that the Board only addressed impacts or imposed conditions where there were readily observable physical relationships. The argument is presumably that the Board would not have imposed restrictions on the mining of tuff or the headwall because the Board’s attention would not have been drawn to potential impacts. The assertion is that while the Board could clearly see that there might be impacts from sites close to the Tumalo State Park and the river, the potential for the headwall was not similarly apparent. The Applicant further asserts that if the Board in 1990 had been concerned about the land form that could be created, then it would have been expected to have done something about it. Instead, the Applicant argues, the Board provided the same basic level of scenic protection in this ESEE as in other ESEEs. The Applicant’s arguments ignore the fact that the Board in 1990 was actually aware of the physical relationship between this site and Tumalo State Park because it required screening. Had the Board known that an additional 3.4 million cubic yards of material was going to be mined and removed (nearly five times the volume of material identified in the ESEE), then it is likely the Board’s attention would have been drawn to potential impacts. Additionally, the Applicant states that there was no concern expressed by State Parks and that there was little testimony and a lack of focused concern in 1990 about the site. The reason why there was no concern expressed by State Parks or an expression of more focused concern about the headwall is simply because no mining of the headwall was contemplated. Had State Parks or the other neighbors assumed that there would be extensive mining into the hillside that would leave a highly visible headwall, it is presumed that there would have been testimony against it. State Parks has made it clear in these proceedings that it is very concerned. The Applicant argues that the Board not only would have had no basis for judging what land form might result but would not have had the ability to address whether a headwall should be left since arguably exclusive jurisdiction over reclamation rests with DOGAMI. This decision will address reclamation issues later, but it should be noted at this point that the Board has, in the past, specifically designated a slope requirement for the final contours of a mine site.2 That was apparently not found to be contrary to DOGAMI authority. The Applicant argues that the tuff is similar to pumice and that, since LUBA stated that an additional two million cubic yards of pumice could be mined on the site if it were found, then it should not make any difference if an additional two plus million cubic yards of tuff is mined. First of all, the comment by LUBA with regard to the possibility of additional pumice being allowed to be mined at the site was only with regard to the question as to whether the inventory amount stated in an ESEE limits the amount of that material that may be mined. The question of whether tuff and pumice are so similar that they need not have been addressed separately in the ESEE has already been determined where LUBA has described the tuff as a “non-identified, non-evaluated and non-inventoried mineral resource.” This is not an issue on remand and we choose not to readdress the issue. The fact that there might be spots of pumice included in portions of the tuff does not mean that the tuff may be mined under the ESEE as if it is pumice. The critical factor, as identified by LUBA, is the potential for a highly visible headwall. The mining and removal of tuff was not contemplated in 1990 and that is not the equivalent of 2 See the ESEE for Site 294 where the Board required the slope to be reclaimed at a 5:1 ratio. CU-07-102, SP-07-46 (MA-08-3, MA-08-4) A-08-14, A-08-20 Page 9 additional pumice being found at the site. In fact, had there been an identification of over 3 million cubic yards of pumice at the site, it is likely that a different ESEE analysis and Program to Meet the Goal would have occurred. The presumption at the time was that only 25 acres of the 80 acres were to be mined. A much larger amount than the identified 750,000 cubic yards of material would have alerted the Board that more than the 25 acres would be excavated and that extensive mining of the hillside could be involved. The Applicant also appears to be operating under the assumption that there is no limit on what amount of pumice may be mined from the site. For example, a significant portion of the hillside has a basalt cap on top of it. In order to reach the pumice below that cap approximately 15 feet of pumice would need to be blasted, followed by removal of some 90 feet of tuff. Contrary to the suggestion of the Applicant, the ESEE does not allow blasting at the site. The reference to blasting in the ESEE at p. 5 is only a generic listing of potential mining activities. The ESEE does not authorize such blasting and the previous decision on a site plan for the site determined that blasting would not be allowed. Additionally, the County may impose site plan restrictions that limit possible mining of pumice. Further, the requirements for reclaiming the site and resloping the hillside could mean that some pumice could not be mined where it would make impossible necessary reclamation. As an argument against requiring an ESEE for mining of the tuff and headwall, the Applicant asserts that there will be potentially serious economic consequences if the mining of the tuff is not allowed. The argument is that the tuff is a needed resource in the area and there are few available sites that could produce it. As an initial matter, the Board notes that there is also evidence in the record that tuff is very abundant in the region. As another matter, the current economic consequences of the tuff are not the issue. The issue is what the Board in 1990 would have considered were the economic consequences to be of mining that much tuff. If it was so important, the 1990 Board would have mentioned it in the ESEE. In any event, economic considerations will be addressed in an ESEE analysis. The applicant also argues that other ESEEs for pumice do not mention the mining of the tuff because it is a given that tuff must be removed in order to access the pumice. The Board does not find that argument persuasive for Site 303. It is one thing where the overlay of tuff is only about 30 feet as it is in the flatter area of the mine site and where the mining of tuff may be considered incidental. It is quite another matter where the proposed mining of tuff completely dwarfs the proposed mining of pumice and would result in such an extensive headwall that would obviously conflict with surrounding sensitive uses. As an aside, Pat McClain’s last submittal claimed that the applicant has been mining only where Cascade Pumice mined and, therefore, has not mined outside the parameters approved in SP-95- 10. The record, however, includes an admission that at least a “small area” outside the footprint of the 1995 approval has been mined. (LUBA Rec. at 3521) An operator’s activities on a site, however, are not automatically legitimized merely because the operator’s predecessor was the one who engaged in the non-approved activity. It does not matter who mined that “small area.” The fact is that there is an admission in the record that mining has occurred outside the 1995 site plan approval. We do not, however, decide in this decision how small is that “small area” but do note that the applicants will need to cease any excavation outside the footprint approved in the CU-07-102, SP-07-46 (MA-08-3, MA-08-4) A-08-14, A-08-20 Page 10 1995 site plan and reclaim that area unless additional land use approval is obtained to continue to mine that area or use it as part of the current site. As we stated in our 2009 decision, the boundary of the area to be mined is established by the site plan, with the exception of the headwall. (2009 Decision, pp. 30 and 69). As part of the Applicant’s final argument in this case, the Applicant includes the request that there should be a condition of approval that “the conditions of approval agreement that implements SP-95-010 should be released by the county upon exercise of the subject site plan approval.” (6/25, p. 5) It is not timely for the Applicant to introduce such a request in its final argument on a remand of this case. The conditions of approval agreement that implements SP- 95-010 has substantive requirements for the owner of the site to comply with. There is simply no basis for the County to give the Applicant a complete release of all of the obligations in that conditions of approval agreement without a showing of compliance with its terms. The conditions of approval agreement executed by Cascade Pumice runs with the land and compliance with those conditions of approval is now the responsibility of the Applicant which owns the property. For example, the site plan requires reclamation of prior-mined areas within two years of the approval of that site plan. This is an obligation that has apparently not yet been fulfilled and there is simply no basis to release the Applicant from this obligation. Also, concurrent reclamation of each slot once a new slot has begun is required. Though the Applicant is being allowed not to limit future slots to 160,000 square feet as was required of Cascade Pumice, the concurrent reclamation of the first slot is still required under the conditions of approval agreement. This is also consistent with the conditions requiring compliance with the 1995 site plan application and requiring reclamation in accordance with the approved reclamation plan for that site plan. Restoration of the hillside was part of that approved reclamation plan. While, under the current site plan approval, the Applicant is allowed to mine areas within the boundaries of the 1995 proposed site plan, that does not extend to an expansion of the headwall. We also note that in its final argument in this case the Applicant asserts that the 1995 site plan map does not accurately reflect areas allowed to be mined and that some areas outside the boundary should be allowed. It is again untimely for the Applicant to be asserting in a final argument that the site plan boundary should be different than as shown on a site plan map. Likewise, opponents note that the site plan map is inconsistent with the description of the allowed mining area in the Board’s 1997 decision which describes excavation of the headwall only as 30 to 35 feet deep. The site plan map is not clear, but it apparently includes potential headwall cuts up to 45 feet deep in the hillside. Because of the ambiguities in the scope of the mining area allowed in SP-95-010, the allowed boundaries for mining under this site plan shall be limited to the boundary lines shown on the 1995 site plan map, excluding any additional headwall cut which is to be addressed in a PAPA. Given the above decision, the Board shall not grant the applicant’s request to release the existing recorded conditions of approval agreement and replace it with a revised agreement. The first time that the Board recalls that request being made was in the applicant’s final arguments and, thus, was an untimely request. Also, the applicant has not demonstrated compliance with that CU-07-102, SP-07-46 (MA-08-3, MA-08-4) A-08-14, A-08-20 Page 11 agreement given that the applicant stated that “it will not accept” the 160,000 square feet limitation on the slots to be mined. Furthermore, the very first condition states that the owner/operator is suppose to mine the area “in accordance with the submitted application and the revised site plan,” except where that 1997 decision and the agreement altered that application a revised site plan. Because the Board finds that mining the large volume of tuff and the headwall is outside the ESEE and the previous owner’s proposal for SP-95-10, that first condition has not been met and the Board believes that the agreement could be amended at the time a new ESEE is adopted. D. Visual Impacts – Applicability and Scope of Screening Requirements 1. Screening of Headwall Mining For Pre-1990 Hoffman Residence and 2. Screening from Tumalo State Park “B. Noise and visual impacts shall be mitigated by buffering and screening, with particular attention paid to screening from Tumalo State Park or the eastern, northeastern and southeastern boundaries.” The Board finds that a new ESEE can potentially spell out what buffering and screening will be necessary for the Park, as well as other uses in the area, including any necessary buffering for the Hoffman residence. The use of the term “northeastern and southeastern boundaries” is unclear. The southeastern boundary provides a significant buffer for any uses to the southeast. It does not seem necessary to pay particular attention to a boundary that already has a significant buffer in place. The revised ESEE can clarify which specific uses need to be protected, and what level of protection should be provided for these uses. F. Reclamation Issues On the substantive issue of whether the County can regulate reclamation issues, the Board finds that DOGAMI has exclusive authority to review and approve reclamation site plans where the site is not subject to an exemption. See ORS 517.780. This does not completely preempt County authority over how a site will be restored. As reflected in the ESEE, the County has a legitimate interest in seeing the site restored in a way that facilitates other uses after the mining is completed. Consideration of how a mined area will look and potentially impact surrounding uses in the long term is also a consideration for an ESEE conflicts analysis, For example, the ESEE for site 294 required a specific slope for the final contours of the site. The record includes DOGAMI correspondence indicating that a 3-acre portion of the property was mined prior to 1972 and is potentially exempt from DOGAMI jurisdiction. The Board finds that exempt area is on the eastern portion of the property and is likely outside of the proposed mining boundary. Even if the exempted area was partially included within the boundaries of the proposed mining site, the Board agrees with the Hearings Officer that there is no practical way of segmenting what is otherwise a unified site into a DOGAMI sphere and a County sphere. It is clear from DOGAMI’s compliance letter of May 6, 2008 that DOGAMI believes it can review the entire site for compliance. CU-07-102, SP-07-46 (MA-08-3, MA-08-4) A-08-14, A-08-20 Page 12 The Board previously recognized that the concept of “ongoing incremental reclamation” as expressed in Condition (e) of item 23 in the ESEE presents no standard for it to judge when such activities should begin, when an area was completely mined that would allow for such activities to begin or when a mined out area is needed as a staging area for the next mining area and cannot be reclaimed. The Board finds that the County will rely upon the findings under the new ESEE for mining the tuff, the DOGAMI approved reclamation plan requirements and the limitation on a five-acre extraction site size in DCC 18.52.110(K)., with the existing site requirement of restoring the current hillside cut at a slope of 1.5: 1. V. SITE PLAN A. CHAPTER 18.52, SURFACE MINING (SM) ZONE 18.52.090 Minimum Use Setbacks. B. Storage and processing of mineral and aggregate material, and storage of operational equipment which creates noise and dust, shall not be allowed closer than one-quarter mile from any noise or dust sensitive use or structure existing on the effective of Ordinance No. 90-014, unless applicant demonstrates that:. 1. Due to the parcel size, topography, existing vegetation or location of conflicting uses or resources, there is no on-site location for the storage and processing of material or storage of equipment which will have less noise or dust impact; and 2. All noise control and air quality standards of DCC 18 can be met by the proposed use for which the exception is requested. FINDING: . Storage of Mineral Materials LUBA found that the storage of mineral materials must either meet the quarter-mile setback standard under DCC 18.52.090(B), or an exception is allowed under 18.52.090(B)(1 and 2). The Board finds that the existing mineral piles that have become vegetated (and stabilized) will be allowed to remain as currently located, based on the fact that there is no other on-site location that will have less noise or dust impact. That is because moving those piles will remove the stabilizing vegetation and likely cause more dust to become airborne and affect the protected conflicting uses. Additionally, moving the piles will create more noise from the additional truck noise moving the piles. The piles that are not revegetated will be required to be moved to meet the quarter-mile setback. Where the applicant has offered to move and revegetate the pile nearest the Hoffman property, that will be allowed. Processing Locations CU-07-102, SP-07-46 (MA-08-3, MA-08-4) A-08-14, A-08-20 Page 13 With regard to processing sites, the Board finds that the applicant proposes to process excavated minerals in three areas identified on its revised site plan, by screening, washing and crushing mineral materials, all of which activities are subject to the setbacks of DCC 18.52.090(B) as processing activities. According to the applicant, this flexibility is necessary to maintain on-site operational efficiency as extraction moves to new “slots” on the site. The applicant submitted a site plan drawing superimposed over an aerial photo, showing all three processing locations are outside of the one-quarter mile radius of nearby dwellings and Tumalo State Park. The setbacks from noise or dust sensitive uses must be measured from the structures themselves or 25 feet from the structures, whichever is closer. The Board finds that all three locations will meet DEQ noise standards. The Board also finds that under DCC 18.52.110(4), the crushing and processing equipment is a use that is required to be screened. The applicant will be required to supply 16-foot high earthen berms, stabilized with ground cover, and kept from producing dust. VI. FINDINGS OF FACT AND CONCLUSION OF LAW – CONDITIONAL USE 2. Section 18.52.140. Conditional use criteria The criteria set forth in DCC 18.52.140 shall be the only conditional use criteria applicable to the surface mining activities described below. Compliance with these criteria shall be demonstrated at the time of site plan review. A. Crushing. When a site has been designated for crushing of mineral and aggregate materials under the site-specific ESEE analysis in the surface mining element of the Comprehensive Plan, the following conditions apply: 1. If a crusher is to be located less than one-half mile from a noise-sensitive use or structure existing on the effective date of Ordinance No. 90-014, the applicant shall demonstrate through a noise report from a qualified, registered sound engineer or similarly qualified professional, that the crusher can meet all applicable DEQ industrial and commercial noise control standards as designed and located, or by methods including, but not limited to: Modification or muffling of the crusher; placement of the crusher below grade or behind berms. 2. If a crusher is to remain on the site for longer than 60 days in any 18-month period, the applicant shall demonstrate that it will be screened in accordance with DCC 18.52.110(B). FINDING: The Board previously found that the ESEE for Site 303 “designated” the site to allow for crushing of mineral and aggregate materials. Accordingly, crushing is allowed if the approval criteria and setbacks are satisfied. The first conditional use approval criterion for crushing requires applicant to demonstrate compliance with applicable DEQ noise standards in the event that a crusher is proposed to be located within one-half mile of a noise-sensitive use or structure existing on the effective date of Ordinance 90-014. The Board found that the proposed crushing locations would be located CU-07-102, SP-07-46 (MA-08-3, MA-08-4) A-08-14, A-08-20 Page 14 within one-half mile of one or more noise-sensitive uses that existed as of July, 12, 1990, the effective date of Ordinance 90-014, including the pre-1990 Hoffman residence, the Todd residence, the former Kemple residence and the Zuber residence, all of which were identified in the Board’s previous decision as nearby noise-sensitive uses. The Board previously found, in response to DCC 18.52.110(H), that the mining operation, including rock crushing and screening equipment at three alternative sites, met applicable DEQ noise standards. The Board relies on those findings to show compliance with DCC 18.52.140(A)(1) and hereby incorporates those findings in this response as if fully stated herein. The second conditional use criterion requires the applicant to demonstrate that any crusher will be in compliance with the screening requirements of DCC 18.52.110(B). The Board finds that due to the location of the proposed southwestern crushing site in the bowl of the applicant’s mining site and the existence of intervening ridges and vegetation, this processing site would be screened from most protected uses. For the reasons set forth in the Board’s previous findings under DCC 18.52.110(B), which are incorporated by reference herein, the only protected uses that need be considered are the two pre-1990 dwellings located in the impact area across the Deschutes River in between Highway 20 and Tumalo State Park and the upper elevation areas around the knob in Tumalo State Park. The applicant proposed to screen the processing equipment in the southwestern location behind the existing stockpiles. The Board finds that screening is feasible, noting from the contoured site plan map the existence of an existing berm at the southeast processing site and the need to excavate down at that site to expose the pumice. The northeastern and southeastern crushing sites will require that 16-foot high earthen berms be installed, and these must be stabilized with ground cover, prior to any crushing activity at these two locations. VII. Dust impacts of the headwall Regarding LUBA’s remand to address issues associated with dust from the headwall, for the most part this matter would be addressed in any PAPA for a new ESEE. The applicant asked the Board to reopen the issue of whether dust would come off the headwall, but the Board decides that would not be appropriate. This was not an issue specifically remanded by LUBA and, in our discretion, we elect not to re-address it. Further, the parties extensively addressed this issue in the original proceedings and the Board made finding that dust from the headwall would be a significant issue. VII. DECISION: Based on the findings of fact and conclusions of law set out above, the Board concludes that the applicant demonstrated that all applicable approval criteria have been satisfied or can be satisfied through the imposition of conditions of approval. Accordingly, CU-07-102/SP-07-46 (MA 08- 3/MA 08-4) is APPROVED, subject to the following conditions of approval: 1. The mining operation approval is based on the site plan map submitted on March 20, 2008 as supplemented on April 15, 2008, showing the proposed mining boundaries, one- quarter mile setbacks from five pre-1990 dwellings, the three processing sites, the existing well and water tank sites, the location of the proposed weigh scale and scale CU-07-102, SP-07-46 (MA-08-3, MA-08-4) A-08-14, A-08-20 Page 15 house, and the proposed operations, except for no increase in the headwall and no mining or removal of the tuff. Any substantial change to the plan shall require new land use applications. 2. Stockpiling of materials that are located within the quarter-mile setbacks shown on the April 15, 2008 site plan map shall be limited only to those piles that have already been revegetated, except as allowed for stockpiling of mined resources within quarter-mile of the former Kemple residence. The piles that have not been revegetated shall be moved to meet the quarter mile setback. As offered by the applicant, the pile closest to the Hoffman property will be moved outside the quarter-mile setback and revegetated. 3. Storage of equipment is allowed only outside the quarter-mile setbacks shown on the April 15, 2008 site plan map and behind sight-obscuring earthen berms when otherwise visible to the upper elevation trail area of Tumalo State Park and the pre-1990 dwellings located within the impact area east of the Deschutes River. 4. Operation of processing equipment is allowed at the three alternative sites identified on the April 15, 2008 site plan map. The southeastern and northeastern processing sites shall be buffered by installing 16-foot high earthen berms, which must be stabilized with ground cover prior to commencement of any processing at these two sites. 5. Natural terrain and vegetative features outside the mining area on the SM zoned property shall be retained to buffer the mining activity from the surrounding area, except for existing roads shown on the site plan. 6. The owner/operator shall be restricted to conducting mining operations between the hours of 7:00 a.m. to 6:00 p.m., Monday through Friday, and 8:00 a.m. to 5:00 p.m. Saturday. Mining operations shall not occur on Sundays or the following legal holidays: New Year’s Day, Memorial Day, July 4th, Labor Day, Thanksgiving Day, Christmas Day. Use of the water truck outside those hours shall be allowed as needed to suppress dust. 7. No drilling or blasting is permitted as part of this approval. 8. The owner/operator shall limit the extraction area to an area of no greater than five acres at one time. For purposes of counting acreage, extraction areas do not include roads, equipment storage areas, processing equipment sites, stockpiles, areas where reclamation is in progress and other accessory uses that are necessary to the mining operation. 9. The owner/operator shall control dust created by the mining operation and its associated activities so as to meet applicable DEQ standards. The dust control measures shall include, at a minimum: a. Regular watering of unpaved portions of the access road and interior roads, as needed. CU-07-102, SP-07-46 (MA-08-3, MA-08-4) A-08-14, A-08-20 Page 16 b. Application of the dust-suppressant and/or sealant products that meet State regulations to exposed areas that are not regularly being worked by applicant and that are not subject to vehicular travel. Renewal and maintenance of such treated areas as necessary. c. Monitoring of atmospheric conditions in the manner as identified in the ECI Dust Abatement Plan accompanying the ECI February 19, 2008 report. The applicant shall implement the ECI Dust Abatement Plan. A flexible work schedule shall be implemented for high dust producing activities, such as overburden removal. Those activities will not be conducted on days when wind speed exceeds 20 mph, humidity is less than 50 percent, and when mining surfaces are dry and exposed. d. Watering the loads of open-bodied haul trucks carrying mined materials from the site with a water bar or covering those loads with a tarp/covering. e. Keeping the paved access road connecting to Johnson Road as dust free as possible. f. Maintaining the ACDP permits for each crusher used on site. 10. Use of the wash plant shall be curtailed at such times as water is needed for dust suppression. 11. The applicant shall follow the Emergency Response Plan attached as Exhibit 7 to the modification of application submittal. The Emergency Response Plan shall be prominently displayed on site, and employees shall be trained in best management practices to implement the plan. 12. The owner/operator shall control noise generated by the mining operation and its associated activities so as to meet all applicable DEQ standards. The owner/operator shall submit to the Planning Division follow-up noise analyses from a qualified noise engineer starting one year from the date this decision becomes final and every other year thereafter for the life of the mining operation. 13. The owner/operator shall store on-site only equipment necessary and appurtenant to mining operations for this site only. The owner/operator shall remove all surface mining equipment from the subject property within 30 days of completion of all mining and reclamation. 14. The applicant shall maintain the 100-foot buffer area along the north property line. No mining activities, except supplied landscaping and reclamation, shall be conducted within this buffer area. 15. The applicant shall park/site vehicles and equipment, including on-site watering equipment, at least 250 feet from any water wells. The applicant shall continuously CU-07-102, SP-07-46 (MA-08-3, MA-08-4) A-08-14, A-08-20 Page 17 CU-07-102, SP-07-46 (MA-08-3, MA-08-4) A-08-14, A-08-20 Page 18 protect the on-site wellhead by maintaining a landscaped or fenced area for a radius of at least 15 feet from the wellhead. 16. Only those materials excavated from the site may be sold at the site. The applicant shall not bring in off-site materials for processing and re-sale from the site. 19. Use of the scale shall be limited to trucks leaving the pit with material loaded at the pit. 20. Applicant shall not start crushing on site prior to obtaining a use permit for the proposed mining operation from the County. The use permit shall not be granted until applicant provides a revised reclamation plan from DOGAMI or proof from DOGAMI that no revised site reclamation plan for the site is needed. 21. The discharge of storm water onto the adjacent Hoffman and Todd properties from the site shall be controlled by directing storm water away from adjacent properties by berming and contouring. 22. Further mining of the headwall is prohibited unless and until a Post Acknowledgement Plan Amendment is submitted and approved for that use. 23. This approval is subject to the above-stated conditions. Failure to abide by the imitations of this approval may result in revocation of the permit or other enforcement action. DATED this ____ day of July, 2011. MAILED this ____ day of July, 2011. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ______________________________________ TAMMY BANEY, CHAIR ______________________________________ ANTHONY DEBONE, VICE CHAIR ATTEST: ______________________________________ Recording Secretary ______________________________________ ALAN UNGER, COMMISSIONER THIS DECISION BECOMES FINAL UPON MAILING. PARTIES MAY APPEAL THIS DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS DECISION IS FINAL.