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HomeMy WebLinkAboutFinal Testimony - Latham AppealPaul D. Dewey Attorney at Law February 11, 2009 Board of Commissioners Deschutes County c/o Deschutes County Planning Division 117 NW Lafayette Ave. Bend, OR 97701 Re: Legal Arguments on Appeals in CU- 07- 102/SP -07 -46 (MA -08 -3 and MA- 08 -4); Latham Excavation Dear Commissioners: 1539 NW Vicksburg Bend, Oregon 97701 (541) 317 -1993 fax (541) 383 -3470 pdewey@bendcable.com RECEWED BY: UkCia`- FEB 1 1 2009 DELI EKED EY: a 2 As you allowed at your hearing on this matter, I am submitting on behalf of Eric and Ronna Hoffman this legal memorandum to address some of the key issues in this case. I. A new ESEE is needed where so much of what is proposed by the Applicant is beyond the scope of the 1990 ESEE for this site. In my submittal of January 20, I included a separate memorandum addressing this issue. In this follow -up briefing, I believe it would be helpful to divide up the Goal 5 issues into separate subjects, discussed below. The most appropriate action by the County at this point would be to require a post - acknowledgement plan amendment ( "PAPA ") and ESEE analysis for the site. It wouldn't necessarily foreclose all mining at the site but would give the opportunity for a complete assessment of conflicting uses and a new program to balance resource conflicts associated with the Applicant's new proposal for the area. A. The County can elect to require a new ESEE and Program to Achieve the Goal. There should be no dispute in this case that the County could call for a new ESEE and other Goal 5 processes here. OAR 660 - 023 - 0180(2) (which addresses mineral and aggregate resources) provides that local governments "are not required" to amend acknowledged inventories or plans with re&ard to mineral and aggregate resources except in response to a PAPA or at periodic review. Even if not "required" to do so, the County can, and should, decide to require a new This parallels the general Goal 5 OAR 660 - 023 - 0250(3) and (4) provisions that local governments "are not required" to apply Goal 5 to PAPAs or to revise acknowledged inventories or other implementing measures for a resource site unless certain conditions require such application. February 11, 2009 Page 2 Goal 5 process when an applicant seeks to fundamentally change what was contemplated in the original ESEE as long as 18 years ago. Where far more and different material are now contemplated to be mined than considered in the original ESEE, where crushing is proposed though the ESEE does not designate it and it hasn't occurred on the site in 25 years, where expansion and no reclamation of a highly visible hillside headwall is proposed, where noise, dust, truck traffic and duration of mining are substantially increased, and where all neighbors, including State Parks, have requested a new ESEE, it is entirely appropriate for the County to require a new Goal 5 assessment. This prerogative is entirely with the County. The case of Urquhart v Lane Council of Governments, 80 Or App 176, 721 P2d 870 (1986), (cited by the Hearings Officer at page 7 of her Decision) is not controlling here. This is not a "changes in circumstances" case where changes in the area are to be addressed in periodic review but rather a proposed change in use by an applicant which should be addressed in a PAPA. Urquhart clearly did not prohibit a local government from requiring a new ESEE. B. The County must require the filing of a PAPA. Even if the County elects not to call for a new Goal 5 process on its own, such a process is still required here where what the Applicant is proposing must be done as a PAPA rather than as a conditional use or site plan permit. See Trademark Construction Inc v Marion County, 34 Or LUBA 202 (1998), where LUBA approved a county's denial of a proposed expansion of a mining site and determined that a PAPA rather than a conditional use application was required. In that case the county had found that the comprehensive plan permitted mining at only historic levels, based on plan language that the rock removal should be limited due to proximity of residential areas and that current use activities could be considered compatible. There was a 20- acre site, of which only one acre had been mined previously. Apparently the entire 20 -acre site had been designated for mining since it was said to have 1.5 million cu yds of material which is far more than could exist on one acre.2 Contrary to the Hearings Officer's assumption here that only expansion of areas designated for mining (rather than expansion of mining within a designated site) triggers Goal 5, LUBA approved Marion County's decision to require a PAPA. The same kind of presumption should be applied in this case where the ESEE contemplated removal of only 760,000 cu yds of material on an 80 -acre site and presumably based its conflicts and compatibility analyses on that low level of mining. As noted by the Hearings Officer at page 16 of her Decision, Latham reported removing 150,000 cu yds of material in just one year. That constitutes one -fifth of the total removal contemplated and assessed in the ESEE. That limited volume context for the ESEE analysis should not be changed without a PAPA. The Applicant's interpretation of the law as allowing anything and everything forever on a mining site has no basis. Just because Mr. White when he was County Legal Counsel drafted what he describes as only "generic" ESEEs with few detailed restrictions does not mean that his mining clients now can do anything not specifically restricted. Latham Excavation should not be 2 An acre is 69.5 yds x 69.5 yds or 4,840 sq yds. Depth provides volume. Dividing that number into 1.5 million cu yds would require a depth of 927 feet on a one -acre parcel. February 11, 2009 Page 3 allowed to do more than what was actually contemplated in the ESEE, including the amount and type of material to be mined. Critical to an ESEE analysis of conflicts between a mining site and conflicting uses in the surrounding area is the determination of what is to occur on the site. Only with that identification can the conflicts analysis be done, plus the balancing of resource interests and development of a program to carry out the balancing. This is not only implicit in the ESEE process, but it is also occasionally stated explicitly as in OAR 660 - 023- 0180(5)(d)(C) requiring consideration of a probable duration of the mining operation and OAR 660 - 023- 0180(6)(d) prohibiting the mining of more than what is specified.3 C. The role of the County's ESEE. Mr. White in his arguments asserts that we are improperly elevating the role of the ESEE here. He argues that it should apply and supersede the Code only where there is an actual "conflict" with the Code. This is fundamentally incorrect where the ESEE is part of the County's acknowledged comprehensive plan and the Code is subservient to and must be consistent with the plan. Furthermore, the Code itself broadly relies on the ESEE. DCC 18.52.010(D) states that the Surface Mining Zone is to "allow the development and use of identified deposits of mineral and aggregate resources consistent with Statewide Planning Goal 5." (Emphasis added.) The Goal 5 planning document here was the ESEE which identified the kinds and amounts of resources. DCC 18.52.080(E) requires for a site plan application: "A description of all potential impacts of the mining activities identified by the ESEE analysis for the specific site and how those impacts are addressed." (Emphasis added.) DCC 18.52.100(B) requires review of "the proposed site plan's conformance with the ESEE analysis for the site." (Emphasis added.) Modifications to the site plan may be made as "necessary to fulfill the requirements of the site - specific ESEE analysis." (Emphasis added.) The Applicant must also prove under DCC 18.52.110(P): "All impacts of the mining activities identified in the ESEE analysis for the specific site are addressed and have been resolved at the time of site plan approval or before the start of mining activity." (Emphasis added.) Given the above Code language, there is no basis for the Applicant's theory that the ESEE should only be applied where there are direct "conflicts" with the Code. 3 Note that these provisions apply to aggregate materials, but where the Applicant intends to mine aggregate as well as pumice and even plans to crush the aggregate and where the pumice and aggregate are intermingled, these standards are applicable here. February 11, 2009 Page 4 Furthermore, DCC 18.52.100(J) requires demonstration that drilling and blasting "are allowed under the site - specific ESEE analysis," DCC 18.52.050(B)(2) allows crushing of materials only on sites "designated for crushing in the ESEE analysis," and DCC 18.52.020 provides that setbacks, standards and conditions in the ESEE are controlling over the criteria in the Code. Finally, DCC 18.52.140(A) states the applicable conditional use criteria for "[w]hen a site has been designated for crushing of mineral and aggregate materials under the site - specific ESEE analysis." Where the Code provides that the "site- specific ESEE" impacts and requirements are controlling, the Applicant has the burden of showing that these criteria are met. The Applicant cannot use as an excuse that the ESEE was so "generic" or "formulaic" that it did not get around to specifically allowing what the Applicant is applying for -- that it did not allow more types of activities, more kinds of materials to be mined and more volume of materials to be mined at the site than it does. The burden is on the Applicant to prove that what it is seeking is actually allowed by the ESEE. The Applicant also attempts to minimize the role of the ESEE by claiming that OAR 660 -016- 0010 requires clear and objective standards and that such standards are provided only by the DCC. To the contrary, OAR 660 - 016 -0010 requires the "clear and objective" standards to be in "the comprehensive plan." OAR 660 - 016 - 0010(3). Apparently whatever is in this comprehensive plan ESEE was found to be adequate by LCDC. D. The Goal 5 process should be followed to assess impacts of the proposed mining on Goal 5 resource sites in the area. The adjoining and nearby Goal 5 resource site of the Deschutes River Scenic Waterway4 is not even assessed in this application by Latham Excavation, though the expanded operations of the mine could substantially impact this Goal 5 resource site because of the dust and noise. Latham's argument against needing to address the Goal 5 resource sites in the area would presumably rely on OAR 660 - 023- 0250(3) which apparently requires a county to assess Goal 5 impacts only where there is a PAPA. As discussed above, the substantial differences between what was approved in the original ESEE and what is proposed by Latham now requires a new PAPA. Additionally, as also addressed above, there is nothing preventing the County from initiating consideration of these broader Goal 5 impacts on its own. E. Approval of this proposal would constitute a violation of Goal 5. If the OARs are interpreted as foreclosing a new ESEE here, despite the difference between what is proposed and what was addressed in the ESEE, then the rules are invalid as applied, contrary to Goal 5 and ORS 197.225's requirement that PAPAs be consistent with the Plan and Goals. Goal 5's requirement of conserving scenic and open spaces is not met. 4 Originally, we assumed Tumalo State Park is also a designated Goal 5 resource site, but we have found no designation of it or other similar sites by the County. The fish and wildlife resources of the Deschutes River are protected under Goal 5 through Ordinance 92 -041. That does not mean, though, that Tumalo State Park is not protected from the mine's impacts since the comprehensive plan through the mine ESEE provides protection. February 11, 2009 Page 5 II. Not all reclamation - related decisions are the exclusive province of DOGAMI. The County and DOGAMI have dual roles regarding reclamation. The Applicant is wrong in asserting there is exclusive jurisdiction in DOGAMI for all reclamation issues. County decisions related to reclamation include the requirement that not more than five acres of a site be in a disturbed condition at any time. DCC 18.52.110(K). That is not a DOGAMI requirement, but it is no less valid for not being so. Karen Green at page 6 in her 1997 decision held that she could make modifications to the Applicant's reclamation plan and that DOGAMI would review and approve them. Just because DOGAMI may ultimately need to review County decisions on reclamation does not mean, as suggested by Mr. White, that the County can't address reclamation issues at all. This is particularly critical here with regard to the Applicant's new proposal to leave the headwall as is with no resloping of the hill, thereby creating a permanent visual blight and dust source. That is not in the best interest of the County and the County should require a resloping of the hillside (subject to DOGAMI approval). The County can also decide what mining can occur at the site and thus the area eventually to be in need of reclamation. There is no obligation for the County to allow all 80 acres of the site, including the complete hillside, to be mined. DOGAMI does not control what is mined; that is exclusively the County's prerogative. The County requires that an applicant submit to the County all of the information required for a site reclamation plan by DOGAMI. DCC 18.52.080(B). The Applicant clearly did not supply this information, but the Hearings Officer found that violation of this Code provision was not important since it was only "informational." (H.O. Decis., p. 12) To the contrary, this information is required for site plan review and approval. III. The scope of noise and dust - sensitive uses is not limited to the residences in the area. The Applicant has appealed the Hearings Officer's decision that noise and dust - sensitive uses apply not just to residences but also to "residential activities that occur outside of buildings." (H.O. Decision, p. 14) This decision is the basis for the Hearings Officer's conditions requiring screening along the Hoffman property and decisions denying crushing at sites 2 and 3. The Applicant focuses on the Code definitions of noise and dust - sensitive uses, highlighting the fact that Ordinance 91 -038 amended the Code definitions to specifically exclude garages and shop areas. It should be noted, however, that this ordinance did not amend the ESEEs, but only the Code, and there is nothing inconsistent between excluding noise - generating areas like garages and shops and protecting other uses on the properties. The Applicant's additional argument that the County definitions are derivative of DEQ rules is irrelevant. The focus of concern here is what is required by the comprehensive plan ESEE for this site. February 11, 2009 Page 6 The Applicant further asserts that all noise and dust - sensitive uses are associated with structures (residences, schools, churches, hospitals and public libraries) and that the "common thread" is the "protection of activities that are carried on inside the structures." (Applic. 1/21/09 letter, p. 7) Such a restrictive application of the rules does not make sense here and is inconsistent with the ESEE's identification of noise and dust - sensitive uses, including the ESEE references to the State Park, agricultural activities and "noise- sensitive property." These noise and dust - sensitive uses are obviously not "structures. "5 The ESEE at page 5 refers to impacts of noise "on persons dwelling in or patronizing noise- sensitive uses in the surrounding zoning." (Emphasis added.) If noise - sensitive uses were limited to dwellings as argued by the Applicant, the ESEE would not have referred to other noise - sensitive uses. The ESEE at page 5 also refers to the County Board finding that "all" residential and park uses are "dust- sensitive uses due to the potential health impacts of dust on occupants and patrons." The ESEE also states at page 6: "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 developed portions of the Park and from the River. Neighborhood residents testified that the usual winds blow dust toward the park and that sound carries from the site toward the river and the park." There is again no limitation of the noise and dust - sensitive uses merely to structures. Furthermore, the ESEE at page 10 refers to the negative impacts of noise and fugitive dust emissions on the livability, scenic quality and compatibility of other uses in the vicinity of the project. It further specifically refers to farm uses as being noise - sensitive uses in certain situations, "such as with livestock operations." The Applicant tries to portray an unworkable scenario resulting from the Hearings Officer's definition of noise and dust - sensitive uses as restricting what can occur within a surface mine impact area ( "SMIA "). Mr. White states that it would make it difficult to build a driveway.6 (Applic. 1/21/09 letter, p. 8) That is not correct where the obvious answer is a waiver of remonstrance by any applicants in the SMIA zone. DCC 18.56.120. 5 It also does not make sense that a dust - sensitive use would be limited to the inside of structures since presumably dust would not enter structures, even if noise might. 6 This argument also suggests that the Hoffman driveway is new, when in fact it has always accessed the pre -July 1990 dwelling on the property. The use to be protected by the buffer along the Hoffman property line is not only the driveway, but also a horse trail along the north boundary. The fact that these facilities are now located on a separate lot owned by the Hoffmans is irrelevant where their use is still associated with the pre -July 1990 dwelling (the driveway provides its only access). February 11, 2009 Page 7 Finally, Mr. White cites Hearings Officer Karen Green's decision in 1995 as support for his limited definition of what constitutes noise and dust - sensitive uses. It is clear from her decision, though, at page 12, that she only looked at the Code definition of "protected use" and no one raised the issue of what the ESEE required. IV. The applications should be denied where the impacts of fugitive dust emissions are not resolved. The Applicant is wrong in asserting that compliance with DEQ dust and noise provisions is all that is required for its requested mining permit. There is the additional requirement of the ESEE and DCC 18.52.110(P) that all impacts identified in the ESEE be addressed and resolved at the time of site plan approval. The ESEE at page 3 specifically addresses "fugitive dust emissions" and mentions impact on agricultural activities. We have also submitted testimony and evidence regarding impacts on the Hoffmans' horse operations and the need for better monitoring of dust emissions due to health impacts. Additionally, there has been no substantiation that these uses will not cause a significant change in accepted farming practices or the cost of accepted farming practices on surrounding lands as required by ORS 215.296. See Eugene Sand and Gravel Inc v Lane County, 44 Or LUBA 50, 69 -71 (2003), upholding a county's finding of inadequate proof by a mining operator that dust impacts on agricultural operations would not violate ORS 215.296. Where EFU lands are included as part of this application as acknowledged on page 5 of the Modification (Applic. Rec. Excerpts, Tab. 1), ORS 215.296 should apply here. The dust and truck traffic generated by the mining operation would significantly affect the agricultural practices on the Hoffmans' property, namely their horses. V. The Hearings Officer's condition based on the scope of screening requirements should be upheld. The Applicant argues that the screening requirements of DCC 18.52.100(B)(2) do not apply to the visibility of the mine from the State Park because supplied screening will not obscure the views of the headwall from the Park due to topography. The Applicant asserts that it therefore can make the headwall as big and visible as it wants to. The Hearings Officer was correct in rejecting this illogical interpretation that would make a mockery of the screening requirements. She properly concluded that "topography" in DCC 18.52.110(B)(6)(b) refers to topography outside of the Applicant's control and that the Applicant can't be excused from compliance on the basis of a problem it creates. The creation of this highly- visible sheer wall is the Applicant's choice. Choosing to mine a site in a place and in a manner whereby screening becomes impossible cannot be a way to avoid the screening requirements of the Code. 7 Just as with reclamation and DOGAMI, the fact that DEQ regulates some aspects of dust does not foreclose the County from preventing or regulating it, particularly here where the ESEE calls for it. February 11, 2009 Page 8 It also needs to be emphasized again that the ESEE provides the basis for protection of views from the State Park. The ESEE at page 4 notes that "physical scarring of the landscape and the loss of vegetation associated with surface mining at the site" would have an adverse impact on scenic resources. The ESEE further addressed the impact to aesthetic values which "would affect primarily residential uses and community and park -type uses," at page 5. The ESEE at page 12 provided a special condition requiring mitigation of noise and visual impacts, "with particular attention paid to screening from Tumalo State Park or the eastern, northeastern and southeastern boundaries. (ESEE, p. 12) VI. The Applicant is not entitled to be operating under a land use permit granted to Cascade Pumice in 1997. The Applicant is incorrect in asserting that it is entitled to be operating at the mining site under the 1997 permit granted to Cascade Pumice. No evidence of a transfer to a successor in interest has been provided and there is furthermore much about what the Applicant is doing that was not addressed in or is inconsistent with the Cascade Pumice permit. The Hearings Officer did not find that the Applicant could be operating under that permit and in fact made clear that SP 95 -10 was not applicable here. (H.O. Decision, pp. 5 -6) The Hearings Officer stated: "The applicant's proposal exceeds the scope of the 1997 application in several respects, including (1) the volume and types of materials to be extracted; (2) year - round hauling rather than more limited seasonal hauling; (3) crushing of materials on site; and (4) the anticipated duration of mining activities....The applicant seeks approval of a new, expanded operation and, in the applicant's view, the only relevant review criteria is set out in the Site 303 Goal 5 program (Site 303 Program) and the zoning code. According to the applicant, its proposal stands on its own and satisfies all applicable approval criteria." A more complete list of the inconsistencies between what Cascade Pumice was allowed and what this Applicant is pursuing include: 1. Cascade Pumice asked to mine 750,000 cu yds of pumice while Latham doesn't state any limiting amount and instead suggests it can mine 4.5 million cu yds. 2. Reclamation was to be commenced within two to three years by Cascade Pumice, but it has still not occurred and Latham has not been doing it despite operating on the site for over two years. 3. The mining slots were limited to 160,000 square feet for Cascade Pumice, but Latham is planning five -acre areas. 4. The topsoil and overburden were to be retained for reclamation under the Cascade Pumice permit, but Latham is actively selling topsoil and overburden. 5. Cascade Pumice proposed a reshaped slope of 1.5:1, but Latham is proposing to leave the headwall as is. February 11, 2009 Page 9 6. Earlier mined areas were to be reclaimed, but that has not occurred. 7. Hauling was limited to the hours of 7:00 to 3:00 from November 15 to February 15, but Latham is operating beyond those limits. 8. There was to be a meteorological condition monitoring system, but Latham has not implemented it. 9. All Cascade Pumice haul trucks were to be covered with tarps, but again Latham has not been following that. 10. A particle fallout bucket was to be monitored monthly for fugitive dust, but Latham has not been doing that. 11. A daily log was to be kept for site conditions, but Latham has not been doing that. 12. A winter noise study was to have occurred, but that has not been done. 13. A revegetation plan was apparently approved by ODFW, but it has not been followed in any reclamation. Where Latham has so completely modified what Cascade Pumice proposed and what the County approved for Cascade Pumice, there is no basis for Latham to claim that it is entitled to continue operations under the 1997 permit. It cannot pick and choose what it wants from an earlier permit. The permit is a package deal, including all the conditions of approval and being limited to what was applied for. As for a mining area being previously approved, any approval would be limited to that particular permit, and there has not been an adequate showing that what the Applicant intends to mine is what was approved in 1997 (the site plan for which is imprecise with no topographical or distance identifications and which does appear to differ from the Applicant's map) and the Hearings Officer did not address the issue because what is now applied for is so different from the 1997 permit. Very truly yours, PAUL DEWEY PD:ao cc: Clients BRUCE W. WHITE, ATTORNEY, LLC February 11, 2009 Hand Delivered Community Development Department, Planning Division Attn.: Paul Blikstad 117 NW Lafayette Avenue Bend, Oregon 97701 -1925 Subject: SP -07 -462 and CU -07 -102 for Surface Mining and Crushing Operations on Surface Mining Site #303 Please find enclosed Applicant's rebuttal, consisting of two memoranda. Sincerely, Bruce W. White c. Latham Excavation RECEIVED BY. (� FEB 1 1 2009 DELIVEXED BY: P.O. BOX 1298 • BEND, OR • 97709 PHONE: (541) 382 -2085 RECEIVED BY: CV'NiYA Latham Excavation FEB 1 1 2009 SP- 07 -46/ CU -07 -102 A- 08- 14/A -08 -20 DEEIA E ED E : -BR-Lice LOKI }-e_ Response to Oral and Written Testimony of Paul Dewey at January 21, 2009 Continued Hearing This memorandum response to the written and oral testimony of Paul Dewey submitted during the January 21, 2009 hearing and the continued hearing on January 26, 2009. At the hearing, Mr. Dewey submitted a January 20, 2009 letter and 6 supporting memorandums. This response is organized in a similar fashion, with this cover memorandum responding to the January 21, 2009 letter and individual memorandums in response to Mr. Dewey's separate memorandums. Mr. Dewey attached the previous testimony of opponents from the hearing. This testimony has been rebutted in Applicant's previous submittals. Applicant would direct the Board to Applicant's submittals of April 15, 2008, May 6, 2008, May 20, 2008 and June 3, 2008 for rebuttal to that testimony. With respect to Mr. Dewey's oral testimony, that will be rebutted here. Much of that testimony was made in his memoranda, which is rebutted point -by -point further on in this memo. With regard to the Mr. Dewey's testimony about the hydro -mulch not being effective on the headwall, the most troublesome area of the headwall was treated with the mulch after May 13, 2008. Since that time, there have been no complaints about dust from the pit. The hydomulch can be renewed as necessary. Rebuttal to the photograph introduced by Mr. Dewey is included in response to Memo No. 6. Mr. Dewey complains that Applicants appealed the Condition that would require buffering along the northern boundary. Applicants appealed this issue because the Hearings Officer applied an inappropriate definition of noise or dust sensitive use that might be used against the Applicant as it relates to measure for compliance with noise standards. In fact, Mr. Dewey has argued that that definition should in fact be used to require noise studies to consider noise impacts anywhere on the property, in contravention to DEQ rules. With regard to the amendment of the definition of noise or dust sensitive uses, the reason garages and workshops were included was not because they themselves are generators of noise, but because they are not inhabited in the way a dwelling is. Mr. Dewey argues that pallets and other solid waste has been brought onto the property. DEQ's site visit indicated only a problem with the pile of tree wood waste. 1 Response to Memorandum No. 1 In his Memorandum No. 1, Mr. Dewey argues that a new ESEE is required because of changed circumstances in the 18 years since the ESEE for Site 303 was adopted in 1990 and what he argues are elements of Applicant's plan that go beyond what was contemplated in the ESEE. Change in Circumstances Mr. Dewey argues that with the passage of 18 years, the ESEE is dated. That a provision in the County's comprehensive plan has been in effect for a long time is not sufficient reason to argue that it cannot be applied to a pending application. The County is required to apply the rules in effect at the time an application is accepted and cannot reject an application because some opponents believe that some portion of what it believes to be the approval criteria has not been updated to conform to current circumstances. Scope and Role of ESEE Mr. Dewey's larger argument is that the applicant's proposal goes beyond the scope of the ESEE and includes elements that are precluded by the ESEE. Mr. Dewey's argument assumes a larger role for the ESEE than is actually granted by the County's mining permitting framework and also includes outright distortions of Applicant's proposal and what the ESEE provides for. Applicant and Mr. Dewey have differing views of what the role of the ESEE is in the County's mining permitting process. Applicant believes that the ESEE has a more limited on -going role than does Mr. Dewey. The areas in which the ESEE has a continuing role are limited to the specific tasks given it by the references to it in the County's site plan requirements. It is not, as Applicant's contend, a general limiting document that is to be held up against the site plan to see if the various specific elements of the proposal of or whether specific impacts were addressed in the ESEE. The Role of the ESEE in the site plan process is informed by the specifics of the site plan requirements, by the Program to Meet the Goal in the ESEEs and by the requirements of Goal 5. Under Goal 5, the ESEE serves as the analytical findings and analysis document to determine how to resolve conflicts identified in the ESEE between the subject Goal 5 resource and identified conflicting uses, such as dwellings, and other Goal 5 resources, such as inventoried wildlife areas and inventoried scenic views. Under OAR 660 - 016 -0010, conflicts are resolved by weighing the importance of the conflicting uses or resources against the subject Goal 5 resource (minerals in this case) against the importance of existing or future conflicting uses within the impact area. Amongst the choices open to the Board is a decision to allow both the Goal 5 resource and the conflicting uses, but with restrictions on both. Any restrictions must be subject to clear and objective standards. OAR 660 -16- 0010(3).1 In this case, the Board's 1 That provision reads as follows: 2 decision under ESEE Site 303 (as it was with virtually all sites approved for mining) was to allow both conflicting uses and resources and the mineral resource, with restrictions on each side through the site plan permitting process of Chapter 18.52 for mineral resources and through the surface mining impact area permitting process of Chapter 18.56 for conflicting noise or dust sensitive uses, such as dwellings. Of importance in determining the role of the ESEE in the permitting process is Goal 5's command that the ESEE decision is to implemented by ordinance provisions under clear and objective standards. The ESEE for Site 303 served as the findings document to document under OAR 660 -016- 0010(3) the reasons for the Board's decision under Goal 5 to allow both the mining at the site and to allow the conflicting uses within the impact area and under what specific conditions. The continuing role of the ESEE in the mining permitting process is summarized in DCC 18.52.020, which reads as follows: 18.52.020. Application of Ordinance. Except as provided in DCC 18.52.160, the setbacks, operation standards and conditions set forth in DCC 18.52.090, 18.52.110 and 18.52.140, respectively, apply to every surface mining site and activity to the extent that setbacks, standards and conditions are not expressly provided for in the site - specific ESEE analysis within the surface mining element of the Comprehensive Plan. When there is a conflict between the site - specific ESEE analysis and the provisions of DCC 18, the site - specific ESEE analysis shall control. This provision identifies the components of surface mining permitting under DCC Chapter 18.52 as involving "setbacks, standards and conditions." Where there is a conflict between site - specific setbacks, standards and conditions of the ESEE and similar provisions in DCC Chapter 18.52, those provisions of the ESEE override the conflicting provisions of DCC Chapter 18.52. The remaining provisions of DCC Chapter 18.52 that reference the ESEE must be read in that context (and in the context of Goal 5's command to implement the ESEE decision through clear and objective standards). Therefore, the provisions of DCC 18.52.100(B) and DCC 18.52.110(P), cited by Mr. Dewey as being a catch -all provisions that allows a proposed site plan to be held up against the ESEE generally cannot be read that broadly. At most, they can be read to require application only of the specific restrictions included in the ESEE's Program to Meet (3) Limiting Conflicting Uses. Based on the analysis of the 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 allow 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 what uses are allowed conditionally, and what specific standards or limitations are placed on the permitted and conditional uses and activities for 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. 3 the Goal, set forth in Paragraph 23 of the ESEE. (See discussion of this issue in Item 14 of Applicant's April 15, 2008 memo — Tab 51.) Amount of Material Mr. Dewey argues that the amount of material being excavated is limited by the 750,000 cubic yard figure in the inventory and that Latham's plan to excavate more than that amount requires a new ESEE. Applicant addressed this issue in depth in Pages 3 -7 of its May 6, 2008 memorandum (Tab 52) and on Pages 13 — 15 of its January 21, 2009 memorandum, which will not all be repeated here. In the absence of a challenge to the data, the Goal 5 inventory process did not require detailed data or scientific studies to show the exact quantity of the inventoried resource. It was sufficient to base a quantity determination for Goal 5 inventory purposes on "how much information was obtainable." OAR 660 - 016 - 0000(3). In this case, Cascade Pumice estimated there to be 750,000 cubic yards to 1,000,000 cubic yards of pumice. There were no studies provided of the exact amount of resource and none were required. In short, nothing in Goal 5, in the Goal 5 rule, in the ESEE or in the site plan requirements of DCC Chapter 18.52 makes the inventory amount a limitation on how much material can be excavated from the site. The Goal 5 inventory for the site showed that the resource was significant enough to be placed on the Goal 5 inventory and to be treated as a Goal 5 resource and provided a basis for balancing the importance of the resource against the importance of the conflicting resources. If anything, an understatement of the inventoried amount would have worked against protection of the Goal 5 resource as making the resource less important as a Goal 5 resource, when it's relative importance was weighed against the relative importance of the conflicting uses, including residences. Nothing in the language of the site plan approval criteria of DCC 18.52 specifies that the inventory amount acts as a ceiling. Nothing in the ESEE itself imposes the inventoried amount as a ceiling or as a condition of mining the site in the manner of the specifics of the Program to Meet the Goal of Paragraph 23 of the ESEE. It would be impractical in practice for the inventoried amount to act as a limit on the amount of material to be excavated from the site. Finally, under DCC 18.52.200(A), a site cannot be rezoned for a post- mining unless the operator "demonstrates that a significant resource no longer exists on the site." If the amount of resource to be taken from the site were to be limited by the amount of the inventory, the Applicant would be in a Catch -22 situation, unable to continue mining and unable to rezone the property for a post- mining use. Mr. Dewey seems to argue that the amount of the resource was important because the amount of time it would take to excavate the resource was an important assumption that went into the ESEEs. Nothing in the ESEEs included any discussion about how long it would take to excavate the resource. As indicated in the Applicant's memorandums of May 6, 2008 (Tab 52, Page 6) and January 21, 2008, where the Board placed a time limit on the excavation of a site, it did so explicitly in the conditions included in the Program to Meet the Goal. See, e.g., Site 305/306, Permit and Ordinance Notebook, Item II(14)(c). In the absence of such a condition, there are no assumptions in the ESEE that could be used to place a time limit on the excavation of a site. Mr. Dewey argues that the ESEE references mining uses as "transitional uses." That is true in the sense that mining sites ultimately transition to a post- mining use, but that does not 4 indicate that the ESEEs contemplated any specific time frame or amount of material to be excavated. Nature of the Material Mr. Dewey indicates that the inventory and the ESEE limits the nature of the material to be taken from the site to the deposit that was placed on the inventory. In particular, he argues that because the overlying Tumalo tuff was not specifically included in the Goal 5 inventory for the site it cannot be mined. Applicant responded to this issue in its memoranda of May 6, 2008 (Tab 52) and January 21, 2009 (Pages 15 -17) and will not go into as great a detail here as in its prior memoranda on this issue. Mr. Dewey argues that the fact that the Tumalo tuff was to be left on the site was an somehow and important assumption that underlay the County's decision in the ESEE to allow for mining at the site. The County's ESEE analysis is generic in nature, and is virtually the same from site to site, whether the site was inventoried for 11,000,000 cubic yards of material of whether it was inventoried for substantially less material. The specifics of how the material was to be extracted, from what depth and how the site was to be reclaimed were details that were not considered in any of the ESEEs. The fact that the Tumalo tuff overlies the inventoried Bend pumice means that the material would have to be extracted in any event to get to the inventoried resource. As noted earlier, the County did not in its ESEE findings include any consideration of the amount of time that it might take to excavate the resource except in the one case where it specifically imposed a time limit (ironically to protect the Tumalo Rim neighborhood on Site 305/306). With regard to the possibility of increased truck traffic, the ESEE Program to Meet the Goal does not even consider truck traffic as a relevant impact to be regulated and DCC Chapter 18.52 does not regulate the impacts of truck traffic. Given all this, mining the Tumalo tuff is within the general scope of impacts considered in the ESEE and accordingly does not require a new ESEE. Mr. Dewey argues that the ESEE didn't consider the plan to expand the height and scope of the headwall and that somehow this requires a new ESEE. However, the original ESEE didn't consider any specifics about what it would take to excavate the resource, including the length or height of the headwall that might be required to excavate the resource, or how it might be reclaimed. It only required that particular attention be paid to screening from Tumalo State Park, but did not indicate any degree of screening to be achieved. The facts in this case show that the pit and headwall are screened from the heavily used areas of the park by the existing topography and vegetation and only at the upper elevations is the pit and the headwall visible. As noted in the applicant's presentation and in its argument, the screening requirements of the ESEE and as implemented by DCC 18.52.110(B) do not require that the headwall be obscured from view. 5 Crushing Not Anticipated Mr. Dewey argues that the ESEE did not contemplate crushing. Applicant responds to this argument in detail in its response to Mr. Dewey's Memo No. 3. As detailed therein, there is no basis to this argument.2 2 Mr. Dewey also argues in his cover letter that the ESEE banned blasting. Applicant also believes this is not true and would have argued as much if blasting had been sought for this site. The ESEEs do not specifically address blasting unless there was an intent to restrict or prohibit it, such as in the Program to Meet the Goal for Sites 305/306 (Coats), 392 (Rose), 359/ 369 (Deschutes County) and 461 (Nolan/Reimenschnieder /Weigand) See Tab 50, Exhibit 1.) 6 Response to Memo #2 Mr. Dewey argues in Memo #2 that the Hearings Officer erred in deciding that the County had no authority over reclamation activities and the reclamation plan for the Latham pit. He argues that DOGAMI authority over reclamation is not exclusive and because there are provisions in the site plan provisions of Chapter 18.52 that address reclamation, the County must have a role to play in regulating and approving reclamation activities. In response to Mr. Dewey's first point, as Applicant pointed out in its memorandum of May 20, 2008, for sites subject to DOGAMI jurisdiction and for counties that adopted land use ordinances purporting to regulate reclamation activities after July 1, 1972, state law makes clear that DOGAMI's authority over reclamation is preeminent over attempts by Counties to assert authority over reclamation activities. ORS 517.780(1).3 In all his various arguments asserting a role for the County in regulating reclamation activities, Mr. Dewey never addresses the effect of this statute upon any Deschutes County ordinance provisions that might be read to have the County regulate reclamation activities. The statute clearly gives no room for the County to assert authority over reclamation. Mr. Dewey then argues that the fact that various provisions of DCC Chapter 18.52 reference reclamation means that the County has authority to regulate and prescribe reclamation activities. Upon review, the terms of those ordinance provisions do not support Mr. Dewey's arguments. The key ordinance provision is DCC 18.52.130. By its express terms, this provision leaves approval of reclamation plans to DOGAMI, where a DOGAMI reclamation plan is required. See DCC 18.52.130(A).4 It is clear from DOGAMI's correspondence that the Latham site is subject 3 That provision reads as follows: 517.780 Effect on local zoning laws or ordinances; rules; certain operations exempt. (1) The provisions of ORS 517.702 to 517.989 and the rules and regulations adopted thereunder do not supersede any zoning laws or ordinances in effect on July 1, 1972. However, if the zoning laws or ordinances are repealed on or after July 1, 1972, the provisions of ORS 517.702 to 517.989 and the rules and regulations adopted thereunder are controlling. The governing board of the State Department of Geology and Mineral Industries may adopt rules and regulations with respect to matters covered by zoning laws and ordinances in effect on July 1, 1972. (2) City or county operated surface mining operations that sell less than 5,000 cubic yards of minerals within a period of 12 consecutive calendar months are exempt from the state mining permit requirements of ORS 517.702 to 517.989 if the city or county adopts an ordinance that includes a general reclamation scheme establishing the means and methods of achieving reclamation for city or county operated surface mining sites exempted from the state permit requirements by this subsection. 4 This provision reads as follows: 18.52.130. Site Reclamation Plan. Prior to the start of mining activity, a site reclamation plan shall be submitted and approved which demonstrates that the mineral and aggregate extraction site can be reclaimed for a subsequent beneficial land use consistent with the designation of such subsequent use in the surface mining element of the Comprehensive Plan. 7 to DOGAMI regulation. (See, e.g., DOGAMI operating permit, Exhibit 6 to Applicant January 21, 2009 submittal; see also DOGAMI May 6, 2008 letter, Tab 38.) Furthermore, the language of DCC 18.52.130(A) indicates that for sites subject to DOGAMI regulation, the reclamation plan is to be approved not as part of the County land use process but just that the plan must be approved sometime prior to the start of mining. Before an applicant can receive a use permit for mining, the County must determine that "the reclamation plan has received final approval." DCC 18.52.170. There is not a word in that provision that gives any support to an argument that it is the County that approves the reclamation plan or reclamation issues generally. Mr. Dewey refers to the language from the ESEE that states that "excavation shall be limited to five acres with ongoing incremental reclamation (subject to DOGAMI review and approval)." Again, the County enactment explicitly recognizes DOGAMI's pre- eminent role in regulation of reclamation activities.5 Far from supporting Mr. Dewey's position, this provision confirms that his argument has no merit. DCC 18.52.110(K), cited by Mr. Dewey in his memorandum No. 3, likewise provides no textual basis to argue for County authority for approval and regulation of reclamation activities. DCC 18.52.110(K) merely limits extraction activities to a size limit of 5 acres. There is no reference whatsoever to reclamation activities or to any requirement of concurrent reclamation. Finally, Mr. Dewey cites to the DCC 18.52.080 list of what information must be included in an application as justification that the County has authority to regulate reclamation activities. This argument fails to distinguish between what are merely information requirements and what are substantive approval criteria. Informational checklists cannot substitute for substantive approval criteria and an applicant's failure to provide required information does not pose a fatal flow in an application if there is no substantive approval criterion that makes the requested information relevant. Le Roux v. Malheur County, 32 Or LUBA 124 (1996). As the above analysis of the approval criteria indicates, no provision of DCC 18.52 or the ESEE conditions allows or requires the County to approve or regulate reclamation activities. It is evident that in drafting the DCC 18.52 approval criteria that the County was mindful and respectful of the limits of its authority in the area of reclamation. A. When a site reclamation plan is required by DOGAMI, the site reclamation plan shall be approved by DOGAMI. To the extent practicable, review of the site reclamation plan shall be conducted jointly between DOGAM1 and the County. B. When a site reclamation plan is not required by DOGAMI, the site reclamation plan shall be approved by the County in conjunction with the site plan review described in DCC 18.52.070. The County shall review such site reclamation plans for consistency with the site - specific ESEE analysis in the surface mining element of the Comprehensive Plan and the standards and conditions set forth in DCC 18.52.110 and 18.52.140. The County also shall follow the applicable DOGAMI standards and criteria for a site reclamation plan. (Ord. 90 -014 §4, 1990) 5 In point of fact, DOGAMI's May 6, 2008 comments indicate that concurrent reclamation would not be feasible at this site. (Tab 38.) 8 Mr. Dewey refers to a December 1988 memorandum from former Assistant County Legal Counsel Karen Green, as a basis for the County having reclamation authority. That memo was dated December 12, 1988 and was attached to Ordinance 88 -040, adopted by the County in December 1988 to adopt comprehensive plan policies for surface mining early on in the development of the County's surface mining package. The final surface mining package of ordinances was adopted on July 12, 1990, including Ordinance 90 -028 (adopting a revised set of comprehensive plan policies for surface mining) and Ordinance 90 -014 (adopting the zoning ordinance provisions for site plan review under DCC Chapter 18.52). Ordinance 90 -028 repealed Ordinance 88 -040. While the Karen Green December 12, 1988 memo was attached to Ordinance 90 -028, the fact that there are no references to reclamation issues in the actual approval standards themselves. The provisions of the Board's site plan ordinance adopted on that date does not provide any approval standard for reclamation or for any County authority over reclamation issues. Applicant has an approved reclamation plan for DOGAMI and according to DOGAMI's letter of May 6, 2008 is in compliance with its DOGAMI plan. The May 20, 2008 email from DOGAMI staff person Ben Mundie makes clear that DOGAMI reclamation plans are flexible and may be amended from time to time. Such amendments may be made without proceeding through the County's land use process. The only County site plan regulation that touches on reclamation issues is the DCC 18.52.110(K) requirement that actively mined areas be limited to 5 acres at a time. Mr. Dewey and other opponents have mischaracterized this provision to state that all disturbed areas be limited to 5 acres. The language of DCC 18.52.110(K) reads otherwise: K. Extraction Site Size. The size of the area in which extraction is taking place as part of a surface mine does not exceed five acres. For the purpose of DCC 18, the extraction site size does not include access roads, equipment storage areas, processing equipment sites, stockpiles, areas where reclamation is in progress and similar accessory uses which are necessary to the mining operation. An exception to this standard may be allowed as part of site plan review if the applicant demonstrates that mining techniques normally associated with the specific type of mining in question and commonly used in the surface mining industry require a larger extraction site size. DCC 18.52.110(K) (Emphasis supplied). 9 Response to Memo No. 3 In his memo No. 3, Mr. Dewey again argues that crushing is not allowed at the Latham pit because the ESEE for Site 303 does not expressly "designate" the site for crushing. Throughout these proceedings, going back to its February 19, 2008 burden of proof and up through the final argument of June 10, 2008 and again in its appeal memorandum of January 21, 2009, Applicants have repeatedly addressed this issue, refuting Mr. Dewey's arguments. The Applicant's position is summarized in its January 21, 2009 memorandum at Pages 20 -22. Mr. Dewey's latest submittal raises no arguments that haven't already been addressed by Applicant's previous analysis of this issue. Essentially, Mr. Dewey's argument is that the only context for interpreting what is meant by the phrase "designated for crushing" in DCC 18.52.050(B)(2) and 18.52.140(A), is the language of the ESEE itself. His argument ignores the fact that the ESEE and the County's zoning ordinance are inter - related documents, as is evidenced by the fact that it is the provisions of the zoning ordinance — DCC 18.52.050(B)(2) and 18.52.140(A) -- that cross - reference the ESEE document and adopts an overly narrow interpretation of the rules of statutory construction from PGE v. BOLI, 317 Or 606, 859 P2d 1143 (1993) about what the relevant legislative context is in this case for discerning legislative intent. Having found a single reference in a list of mining activities in the ESEE that lists both processing and crushing as if they were separate and distinct, he uses that as the basis of an argument that any other use of the term "processing," such as that found in the ESEE's program to meet the goal, cannot possibly include the term "crushing" and he then attempts to limit the Board to look only at the ESEE and not the other parts of the surface mining package adopted on that same day. PGE provides no basis for taking such a narrow view of what the context of a legislative enactment is for purposes of interpreting its terms. The appropriate context includes any other legislation that bears on the term at issue. In this case, the definition of "processing" in the zoning ordinance bears directly on that term as it is used in the ESEE and must be considered. Mr. Dewey's reference to DCC 18.52.020, which states that in instances of conflict the provisions of the ESEE should control, is an inappropriate use of that ordinance provision. The interpretation of what the Board meant by "processing" in the ESEE's Program to Meet the Goal does not involve a conflict between a specific setback, operating standard or condition of the ESEE and the zoning ordinance. It is only a question of interpretation of what the Board meant by the term "processing" in the ESEE. Hence there is no conflict, and DCC 18.52.020 cannot be used to limit the Board from considering all of the legislative enactments adopted in the surface mining package — including the definition of "processing" found in the definition section of the Title 18 zoning ordinance. Mr. Dewey's attempts to bootstrap his argument by referring to the Hearings Officer's determination in SP -95 -010 (affirmed by the Board in A -97 -4) that since blasting was not expressly allowed by the ESEE, it was not permitted. This is not a convincing argument, since blasting was not proposed and therefore not at issue for the Cascade Pumice site plan (as it is not for this site plan) so that any findings concerning blasting in the previous site plan are gratuitous 10 and not essential. Because blasting was not proposed by Cascade Pumice, it would not have been briefed or addressed by the parties and whether or not it was approved or not was of no consequence to Cascade Pumice. 11 Response to Memo #4 In Memo #4, Mr. Dewey argues that applicant failed to comply with site plan informational requirements and supplied inconsistent information as it relates to a reclamation plan. In addition, Mr. Dewey argues that there is no clear description of what uses and types of equipment are being allowed, that the boundary of the mining operation needs to be established, that the north boundary screening needs to be specified, that applicant has not clearly identified where its proposed mining is to occur, where its stockpiling and reclamation are occurring, what areas are to be reclaimed and that the noise studies were inadequate in that Applicant's noise expert did not do an assessment for pre -1990 properties or for noise associated with increased traffic. Applicant will respond to Mr. Dewey's arguments point by point under each of the headings, as written by Mr. Dewey. Applicant's repetition of Mr. Dewey's headings in this memo are for administrative convenience and do not signify Applicant's agreement with them, as will become obvious from Applicant's responses. A. Incomplete Application Mr. Dewey goes into great detail addressing how he believes the Applicant's application was deficient in failing to produce information called for by DCC 18.52.080, which is the ordinance provision that details what information is to be submitted along with an application. Much of the argument centers on DCC 18.52.080(B), which lists "all information for a site reclamation plan by DOGAMI. "6 The Hearings Officer's response to Mr. Dewey's arguments about the application being incomplete is found at Page 12 of her decision, as follows: "The Hearings Officer finds that DCC 18.52.080 is an informational standard, which is satisfied when the applicant submits evidence addressing factors (A) through (E). The question of whether that evidence is sufficient to demonstrate that approval criteria is addressed by considering other criteria set out in DCC 18.52. The Hearings Officer finds that 18.52.080(E) does not require that the impacts on the Tumalo Water Improvement District be addressed in the initial application. DCC 18.52.080(E) requires only that those `impacts' identified in the Site 303 plan be addressed. There is no dispute that the district's well is not identified in the Site 303 plan." The Hearings Officer was correct that DCC 18.52.080 is an informational standard as opposed to an approval standard. The purpose of having an ordinance provision that 6 Because the County has no authority to approve reclamation activities, Applicant will not respond to the variety of issues Mr. Dewey raises with respect to reclamation best management. Suffice it to say that DOGAMI has informed applicant that it is in compliance with its reclamation plan is in compliance and that it may amend its reclamation plan, if necessary. See May 6, 2008 DOGAMI letter. 12 includes application information requirements is to provide some guidance to applicants as to what information will be useful in helping the County to assess whether or not an applicant's proposal meets the actual approval requirements. In this case, the approval requirements are set forth in DCC 18.090 and DCC 18.52 110 and in the ESEE to the extent it conflicts with substantive standards of DCC 18.52. It is compliance with the approval Whether or not an applicant submits every last piece of information included in an application check list has no bearing on whether an application can be approved so long as an applicant's evidence adequately addresses the actual approval criteria. Le Roux v. Malheur County, 32 Or LUBA 124 (1996) ( "The fact that application requirements may not have been satisfied provides no basis for remand absent a showing that the failure to satisfy the requirements resulted in non - compliance with at least one mandatory approval criterion. ") In this case, Applicant has provided sufficient evidence that the applicable approval standards have been satisfied. See also Champion v. City of Portland, 28 Or LUBA (1995), Wissusik v. Yamhill County, 27 Or LUBA 94 (1994). To simplify, if the County's code lists information that has no relevance because it doesn't relate to an approval criterion, then an applicant's failure to provide some aspect of information specified in the application check list is of no consequence. What matters is whether there is evidence in the record to support approval under the actual approval criteria. Mr. Dewey's arguments ignore the difference between an informational checklist and substantive approval standards, or they wrongly assume that there are approval standards that are applicable to this application that in fact are not. The parties do not agree which standards are applicable in two respects; whether reclamation must be demonstrated as part of the approval and whether ESEE impacts provide a separate grounds for assessing an application. B. What Equipment is Being Allowed Mr. Dewey argues that there is no clear description of what uses are being allowed and what equipment is being allowed because there have been various modifications to the site plan. Contrary to Mr. Dewey's argument, it seems clear from the Applicant's burden of proof and its modification that the following "uses" are being requested: • Excavation of Tumalo tuff, Bend pumice and incidental aggregate; • Screening of pumice; • Screening of tuff, as necessary for production of horticultural products from the pumice inclusions in the tuff; • Washing tuff for possible use as arena sand; • Crushing of pumice, welded tuff, and incidental aggregate • Stockpiling of pumice, tuff and incidental aggregate 13 Equipment includes the following equipment: excavators, front -end loaders, haul trucks, water trucks, a screener, a wash plant, a roll crusher and an impact rock crusher as identified in the noise studies. In its application, the applicant requested that it not be bound by model and brand - specific equipment but that the mining operation be subjected periodically to monitoring for compliance with applicable DEQ noise standards to ensure compliance with noise standards. The Applicant's noise expert addressed this issue in his February 19, 2008 submittal. The Hearings Officer agreed with this approach. In addition, stationary equipment includes a weather station, water tank and a portable scale and scale house. C. Boundary of the Mining Operation Needs to be Established Mr. Dewey notes that in her decision the Hearings Officer required the boundary of the mining area to be adjusted so that it was no longer visible from the upper trails of Tumalo State Park. His concern was that the condition did not require public involvement in establishing a revised boundary. Applicant's position is that the Hearings Officer's condition is not supported by the law and the evidence and that the boundaries need not be adjusted to comply with the County's screening requirements under DCC 18.52.110(B). Accordingly, this condition should drop out and the issue of public involvement in the site plan revision will become moot. Applicant believes that the Hearings Officer's condition to re- address the mining boundaries is based on an erroneous reading of the screening requirements and cannot be justified. This was an issue raised by Applicant in its request for reconsideration as well as its appeal to the Board. A full argument on this issue is found on Page 8 -12 of its January 21, 2009 memorandum. D. North Boundary Screening Needs to be Specified The Hearings Officer required applicant to establish a screen between the Hoffman property and the pit as a condition of approval. Mr. Dewey believes that this requirement is not specific enough and that it precludes public involvement. Applicant's response is that for the reasons set forth in its first issue on appeal, the Hearings Officer's requirement for screening the north property line was not justified and that accordingly, the screening requirement cannot survive. See January 21, 2008 Memorandum, pages 4 -8. DCC 18.52.110(B) requires that noise or dust sensitive uses existing as of July 12, 1992, be screened from various aspects of the mine. Hearings Officer interpreted the scope of a noise or dust sensitive use to include the driveway leading to the Hoffman house, which for the reasons set forth in its January 21, 2009 memorandum (Pages 4 -8) applicant believes is an improper interpretation. Under a proper interpretation of the noise or dust sensitive use, the Hearings Officer had no basis to impose the screening requirement. Accordingly, in the absence of any screening requirement, this argument of Mr. Dewey drops away. 14 E. Location and Types of Mining Mr. Dewey complains that Applicant has not precisely identified what types of mining will occur and where. In response, despite Mr. Dewey's attempts to confuse the issue by questioning the label that has been attached, it is quite evident where Applicant is proposing to mine (within the permit boundary areas — the same area that was approved for Cascade Pumice) and how applicant proposed to mine these areas — scrape off the material that is above it and excavate with earth moving equipment, retain the topsoil for use in reclamation and stockpile removed material as necessary. As Applicant's geotechnical expert testified in one of his letters, "this is rock science, not rocket science." F. Areas Reclaimed and to be Reclaimed Mr. Dewey argues that the Applicant's operation is in violation of the 1997 site plan approval and with the ESEE in terms of the amount of ground that has been disturbed at the site. In addition, he argues that despite the ESEE's requirement for incremental reclamation, the applicant and the Hearings Officer had failed to show where that reclamation was occurring. With regard to compliance with the 1997 site plan, Applicant is making a new application to supersede the 1997 site plan, so the 1997 site plan has limited applicability to this application. That said, there is nothing to indicate that the Applicant is in violation of the 1997 site plan with respect to the size of the slot. The County's code enforcement officer measured the size of the slot and found it to be in compliance with the 160,000 square -foot limitation of SP -95 -010. (Tab 48, see entry for 4/09/08). It should be emphasized that the 160,000 square -foot limitation is for the actual slot area and not for roads, processing areas, stock piles, etc. As noted in testimony from the hearings before the Hearings Officer, Applicant is still working the original slot that was opened by Cascade Pumice; therefore, even if the County could require incremental reclamation, such reclamation of the initial slot would be premature. DOGAMI's comments of May 6, 2008 (page 2) indicate that concurrent reclamation does not appear to be feasible with the current slot configuration. (Tab 38) The Mr. Dewey and other opponents have consistently made the mistake of G. Noise Studies Mr. Dewey argues that the noise studies were inadequate at pre -1990 dwellings nearby the mining operation. Mr. Dewey's argument appears to rest upon an assumption that the term "noise- sensitive use" includes the entire property on which the noise - sensitive use is located and not just the area around a house. Applicant admittedly did not structure its noise studies in this way, but instead followed DEQ administrative rules that requires noise measurements to be taken at a point on the property line or at a point 25 feet from the residence toward the mine. (See January 21, 2009 Memorandum of Bruce White, January 21, 2009 Memorandum of Kerrie Standlee, Exhibit 4, Page 3.) The approval standard for noise impacts is set forth at DCC 18.52.110(1-1). By its terms, it refers to compliance with "DEQ noise control standards." As noted in Applicant's January 21, 2009 memorandum. DEQ noise control standards includes a 15 provision that requires noise measurements to be taken at the property line or at a distance of 25 feet from the dwelling, whichever is furthest from the noise source. To include the entire property in the noise analysis would require that the County modify the DEQ noise control standards, which under the City of LaGrand and City of Astoria line of caselaw, the County has no authority to do. As set forth in Applicant's noise studies of December 18, 2007 (Tab 64) and February 18, 2008 (Tab 65), Applicant's noise study was appropriately scoped to comply with DEQ's noise standards; accordingly, Mr. Dewey's argument with the regard to whether additional areas on a noise- sensitive property should be studied has no merit. Mr. Dewey argues that the Hearings Office failed to require an assessment of the impact of an increase in traffic and its associated noise issues. On Page 23 of her decision, the Hearings Officer found that such noise was not relevant to determining compliance with DEQ noise standards. For the reasons set forth in the Daly - Standlee letter of April 15, 2008, (Tab 66, Page 2 -3), the Hearings Officer's determination on this issue was correct. Site 303 is viewed as being a "previously used" site under DEQ rules8, which does not require that noise from on -road haul trucks be included in a noise study. OAR 340 - 035- 035(1)(b). In its consideration of the appeal of Cascade Pumice's site plan in 1997, the Board of County Commissioners previously addressed this issue and found that the noise from on -road haul trucks was not to be included in any noise study of the pit. (See Permit and Ordinance Notebook, Item I(2).) Nothing about this submittal changes the relevant facts or law that lead the Board to that conclusion. ' "The noise measurements exclude warning devices no operating continuously for more than five minutes, or sounds created by the tires or motor used to propel any road vehicle complying with the standards for road vehicles. OAR 340 - 035- 0035(4)." s A "previously used site" is one that has been used during the preceding 20 years for an industrial or commercial use. OAR 340 - 035- 0015(47). This issue is addressed in Applicant's January 21, 2009 memo, at Page 34. The history of use prior to Cascade Pumice are set forth in the DOGAMI permit materials submitted into the record, found at Tab 25. 16 Response to Memo #5 Mr. Dewey argues that the Hearings Officer failed to require a traffic study for any assessment or mitigation of the increased truck traffic associated with the subject applications and that the access point onto Johnson Road had inadequate site distance. Applicant's response is that these issues are not relevant issues for approval under the approval criteria of DCC Chapter 18.52. Applicant addressed this issue on Page 23 of its January 21, 2009 memorandum. As noted, DCC 18.52 contains no approval standards addressing off -site traffic impacts. The only reference to off -site traffic impacts is found at DCC 18.52.110(A)(2), under which the County can require off -site improvements in the event that the increase in traffic "will damage the road sufficiently to warrant off -site improvements." The Road Department commented on this application and did not require there to be off -site improvements to mitigate for damage to roads from truck traffic. (See April 4, 2008 Staff Report, Page 5.) Similarly, there are no planning approval requirements in DCC Chapter 18.52 that address sight distance issues. Access issues onto Johnson Road have been addressed by the access permit issued by the Deschutes County Road Department. An email addressing that issue from County Engineer George Kolb was included as Exhibit 7 to Applicant's January 21, 2009 submittal. The ESEE for Site 303 does not provide a basis for imposing traffic or off -site transportation mitigation requirements. As noted earlier, under a proper interpretation of DCC Chapter 18.52, the ESEE comes into play in mining permitting under DCC Chapter 18.52 only in the following circumstances: (1) Pursuant to DCC 18.52.020, where there is an express setback, operation standard or condition provided for in the ESEE that conflicts with a setback, operation standard or condition set forth in sections DCC 18.52.090, 18.52.110 or 18.52.140; (2) Limitations on or authorization of blasting and crushing under DCC 18.51.110(J) (blasting) and DCC 18.52.050(B)(2) (crushing); and (3) Pursuant to DCC 18.52.110(P), any site - specific requirements under the ESEE's program to meet the goal. None of these items provides a basis to regulate off -site truck traffic under the ESEE. With respect to the role of the ESEE under DCC 18.52.020, the setbacks, operation standards and conditions of the ESEE include no express limitations on truck impacts. There is simply no specific operating standard in the ESEE to import into the zoning code with regard to assessing the off -site impacts of truck traffic. Similarly, with respect to DCC 18.52.110(P), there is nothing in the Site 303 ESEE program to meet the goal that addresses the impact of trucks or truck traffic on the transportation system. In short, the ESEE does not provide any basis for a requirement to address the kinds of truck and traffic impacts that Mr. Dewey suggests. 17 Response to Memo #6 The applicant argues that the Hearings Officer erred in not finding dust to be an impact that requires screening, that the ESEE and DCC 18.52.110(P) requires resolution of ESEE impacts at the time of site plan approval and that dust issues have not been resolved and that the DEQ fugitive dust emission standards have not been met. Fugitive Dust Not Required to Be Screened From View The Hearings Officer was correct in her determination that fugitive dust need not be screened from view. Applicant covered this on Page 6 of its January 21, 2009 memorandum addressing the Hoffmans' issues on appeal. Dust is not listed in DCC 18.52.110(B)(4) as a mining use or impact that needs to be screened. Resolution of Dust Impacts Under DCC 18.52.110(P) Mr. Dewey argues that DCC 18.52.110(P) requires resolution of fugitive dust emissions at the site. As noted previously, a reasonable interpretation of DCC 181.52.110(P) requires only that the Hearings Body consider the items listed in Paragraph 23 of the ESEE, the Program to Meet the Goal. That includes an item (item (f)) that requires mining operations to meet "all applicable DEQ noise and dust standards." As it relates to air quality, this item is implemented through DCC 18.52.110(C) relating to air quality. DCC 18.52.110(C) requires that dust created by the mining operation not exceed any applicable DEQ ambient air quality and emission standards. Applicants have addressed this standard in its burden of proof and in its memoranda of May 6, 2008, pages 13 -14 (Tab 52) and in its January 21, 2009 memorandum (Pages 27 -32). The primary criterion is the criterion that DEQ staff person Frank Messina referenced in his testimony of January 21, 2009 before the Board — OAR 340 - 208 -0210, the nuisance standard. This standard requires that "no person may cause or permit any materials to be handled, transported or stored ... or a road to be used ... or any equipment to be operated, without taking reasonable precautions to prevent particulate matter from becoming airborne. "9 OAR 340 -208- 0210(2). In Mr. Messina's opinion, the Applicant's methods for addressing fugitive dust emissions adequately meets that and other requirements of DEQ rules. It is important to note that the Applicant has intensified its dust control efforts and that DEQ's opinion reflected the latest efforts of Applicant, including the use of the mulch material on areas that are not active. Mr. Dewey suggests that the Applicant be required to do an air quality study to demonstrate that air quality standards will not be exceeded by the proposed pumice mining operations. As noted in Applicant's prior memorandum of January 21, 2009, (Page 27) DEQ does not require that sources such as Applicant's perform any predictive modeling. (See Tab 41). DEQ's own method of implementing air quality standards is to condition its air contaminant discharge 9 Under OAR 660 - 208 -0210, "reasonable precautions" may include such practices ass use of water or chemicals for control of dust when grading roads or clearing land, application of asphalt, oil, water or other suitable chemicals onpaved roads, covering , at all times when in motion, open bodied trucks transporting materials likely to become airborne; and the prompt removal from paved streets of earth or other material that may become airborne. 18 permits (ACDP) permits on compliance with applicable DEQ standards. See January 21, 2009 memorandum, Page 31. Applicant has received ACDP permits for both of the crushers that it would propose to use on site. In assessing whether the Applicant's dust control meets applicable DEQ air quality requirements, the County should not take a stance that requires a more stringent showing than is required by DEQ, which is charged with enforcement of the standards. In the end, if Applicant has the manner and the means to control dust by the kinds of techniques set forth in OAR 660 - 208 -0210, it will have met any applicable or potentially applicable DEQ air quality standards. Applicant has demonstrated through its use of the mulch product, the tackifier and through its watering program that it has the capacity to control dust at the site and that it has adequately controlled dust at the site. All of the examples of dust (including photographs) from the site raised by the opponents, including Mr. Dewey, are from a time period prior to Applicant's latest efforts to control dust, including spreading of the mulch material on the most problematic area of the headwall. The only exception to this is the picture that Mr. Dewey entered into the record on January 26, 2009. That picture shows a small, concentrated plume and doesn't indicate much of anything as to the source of the dust.10 As Commissioner Baney commented, it could be from a vehicle driving on the haul road. Mr. Dewey was not able to provide any explanation as to what may have triggered the dust. Given their interest in opposing this site and their level of previous documentation of dust issues at the site, one would think that the opponents would have been lying in wait for an opportunity to show that Applicant's current dust suppression is not working. It is reasonable to assume that if there had been clouds of dust coming off the property since that time, we would have seen photographs to that effect. If the picture introduced by Mr. Dewey is the best they can do to show that dust problems are continuing, then that is testament to the fact that the dust control efforts at the site are in fact working. As a way of explaining the absence of complaints since Spring 2008, the Opponents have indicated that they have given up complaining about dust because they get no response. Again, given the prior scrutiny, and the fact that this permit was still under appeal, one can reasonably assume that if there had been a problem in the interim — in the driest months of the year — a complaint would have been made. The fact that Ms. Whistler and Mr. Adams showed up at the January 21, 2009 hearing shows their continued interest in opposing the Applicant's proposal. 10 Contrary to Mr. Dewey's assertion, a review of the photograph does not show that the dust is coming from one of the surfaces treated by the mulch. 19 Response to Memo #7 In Memo No. 7, Mr. Dewey identifies 5 conditions of approval of the Hearings Officer as being inadequate. Applicant responds as follows. Condition No. 1: What Uses Are Allowed Applicants submittals have made clear what it is that Applicant is seeking approval for. • Excavation of Tumalo tuff, Bend pumice and incidental aggregate; • Screening of pumice; • Washing tuff for possible use as arena sand; • Crushing of pumice, welded tuff, and incidental aggregate • Stockpiling of pumice, tuff and incidental aggregate Some of what Mr. Dewey asks for in a revised Condition No. 1 is impossible to provide for at a surface mining site. As noted elsewhere in the record and in my testimony before the Board on January 21, 2009, surface mines are dynamic sites, unlike more traditional site plans where the elements, such as locations of buildings, parking lots, landscaping and sidewalks are fixed in place over the life of the site plan. With surface mines, the area to be excavated moves around the site as extraction is completed in older areas and new areas are opened up, and by necessity the other elements, such as equipment storage, processing locations and stockpile areas, move also as the area of extraction moves. As noted at the hearing, the area where Applicant currently stores its equipment will be excavated at some point. The Cascade Pumice site plan displayed at the January 21, 2009 hearing makes the point. It shows a series of "typical" slots. In reality, the first slot opened by Cascade Pumice did not conform to any of the slots drawn on the map, although that initial slot did conform to the 160,000 square foot size limit of the conditions of approval. Mr. Dewey believes that the conditions should include a condition of how much material should be stockpiled. As Pat McClain has testified, the amount of pumice material to be stockpiled is dependent on market conditions and the need to build up a stock pile of the pumice in the dryer months going into the winter, when the moisture in the pumice makes it harder to process. Fixing a number on the amount of materials in a stockpile would be like trying to regulate the amount of inventory on a retailer's shelves through the land use process. What the Board can do is to describe the areas on the site within which certain activities, such as equipment storage and stockpiling, may occur in order to comply with setbacks from noise or dust sensitive uses in existence on July 12, 1990. Applicant has provided a site plan with 1/4 mile arcs that describe an area on the site within which the activities subject to the '/4 -mile setbacks may occur. Applicant has also demonstrated through oral and written testimony at the January 21, 2009 hearing why an exception to the' /4 -mile setbacks is justified in the area between those setbacks and the headwall for stockpiling and possible equipment storage. 20 With respect to locating the wash plant below grade, there is no requirement that the wash plant or any other equipment be located below grade other than at alternative processing locations 1 and 2. Applicant has no problem with such a condition of approval. Condition No. 7: Dust Control Applicant has shown that it is feasible to control dust through a combination of mulching critical areas of the headwall and other exposed areas, through use of a tackifier in the water being applied to the roads and regular application of water from the on -site well and water tank. Applicant's submittal of May 20, 2008 included an analysis by DEA and a map showing that there Applicant's water supply and delivery through water trucks had sufficient capacity to control areas exposed to dust. Any condition of approval for such mitigation efforts of necessity will need to be somewhat generic. Applicant has no problem with a requirement that requires exposed, unworked areas to be mulched, with the mulch required to be renewed as necessary. As noted in Pat McClain's January 21, 2009 testimony, the mulch has held up well beyond the initial 6 -month time period. Condition No. 12: Specifics on Screening and Maintenance This screening requirement was a condition that Applicant appealed because it was based upon an erroneous determination that the Hoffman driveway was included as part of a protected noise and dust sensitive use. As noted in Applicant's arguments on appeal, there was no basis for this condition and it will need to be removed. Accordingly, Mr. Dewey's arguments with regard to the specificity of this condition will be mooted by resolution of Applicant's appeal related to this condition. Condition No. 17: Visibility from the Park As with Condition No. 12, this condition was a subject of Applicant's appeal and Mr. Dewey's issues with this condition will be mooted by resolution of Applicant's appeal. With regard to the location of storage sites, there is no basis for Mr. Dewey's allegation that storage sites need to be located as far away as possible from sensitive uses. The ordinance requires that stockpiles and equipment be located more than 1/4 mile from noise or dust - sensitive uses. Applicant has provided a site plan showing where on the site these activities can occur without violating the 1/4-mile setbacks. Within those areas outside the setbacks, the stockpiles can be located anywhere. It is only in areas that intrude within the '/4 -mile setbacks where, in accordance with the exception allowed by DCC 18.52.090(B), such areas may be located closer to noise or dust - sensitive uses. In this case, applicant believes that the area between the 1/4-mile setback area and the headwall qualifies for such an exception, as storage of equipment and material stock is located further away from the Hoffman No. 1 and Todd residences and the headwall and the difference in elevation buffers those areas from the Kemple residence to the south. The topsoil materials that have been bermed on the site are not subject to the'' /4 -mile setback limitation, as they are not composed of "stock" that is being held for sale. Portable Scale 21 Applicant has no problem with a condition of approval that limits use of its scale to use by customers of this site. Pat McClain has testified previously that that is all the scale is proposed for. The neighbor's fears are not justified, but nonetheless a condition of approval is acceptable. 22 Latham Excavation SP- 07 -46/ CU -07 -102 A- 08- 14/A -08 -20 RED VED BY: t`� FEB 11 2009 DELSVaED : Response to Testimony of Neighbors/ Opponents at January 21, 2009 Hearing Thomas Triplett Mr. Triplett testified regarding his and his neighbors' (Hamiltons, Geisler, Hoffmans) farming activities and his concerns about dust.' As a matter of fact, the record shows that that Mr. Triplett and the neighbors that he referenced are all located upwind of the Latham mine, as demonstrated by the wind records submitted into the record by Pat McClain as Exhibit 2 to his May 20, 2008, letter2. The winds blow primarily from the NW (from April — September) and from the SW (from October — March). Mr. Triplett and his adjacent neighbors are located to the west and northwest of the Latham Site. There is no proof in the record of Mr. Triplett's property being impacted by dust from the site. The only pictures of dust in the record show dust blowing toward the east — away from the Triplett property. The record indicates that Mr. Triplett's farming operation itself is a generator of dust. Applicants provided testimony through the May 20, 2008 letter of Pat McClain about dust arising from Mr. Triplett's farm during plowing drifting toward the east toward the Latham property. This would seem to be contradictory to the concern that Mr. Triplett expressed about his grandson's asthma. (It is interesting to note that those neighbors involved in farming activities are all protected by Oregon's Right to Farm law, which precludes any neighbor from taking action for dust raised by accepted farming practices.) Ironically, the testing of the soils for the presence of harmful silica shows that the topsoil has the highest levels of harmful silica in it. Mr. Triplett admitted during his testimony that the dust from the Latham mine had been reduced since the applicant had started using the mulch product. However, he insinuated that despite the use of the mulch that dust continued to be a problem. The only specific date that he referred to was a problem on Mother's Day. Applicants would ask that you take official notice that Mother's day was on Sunday, May 11, 2008 (see attached). From the May 20, 2008 testimony of Pat McClain, this was before Latham Excavation treated additional areas of the pit on May 13 2008. (Tab 53. Page 4.) A comparison of the May 5, 2008 aerial photo with the May 20, 2008 aerial photo shows that those areas were the troublesome southeast corner area of the headwall 1 The location of those properties is shown on the aerial photo map that was displayed on the easel at the January 21 2009 hearing and that was introduced into the record on February 19, 2008. 2 That exhibit was not included in the book prepared for the January 21, 2008 hearing before the Board, but is included in the record. 1 and the top of the tuff stockpile. (Tab 53, Exhibits F -1 and F -2.) Mr. Triplett's testimony did not indicate any further dust problems after the Mother's day date. There is no evidence that the Latham mine has posed air quality problems for Mr. Triplett, the Davenports, the Hamiltons or the Geislers or other neighbors located to the west and northwest of the proposed mine site. Mr. Triplett complained about pumice "dumped" on his property. This was responded to by Pat McClain's testimony of May 20, 2008. (Tab 53, Page 1.) As Pat McClain explained in his testimony of April 8, 2008, there has been a tendency of neighbors to exaggerate the impact of the mine and to attempt to blame the mine for impacts totally unrelated to the mining operation. (Tab 32, Pages 4 -5, Exhibits 1 -2.) Mr. Triplett brought up a trespass case decided by the Oregon Supreme Court involving an aluminum plant. That case has no relevance to this case and whether the applicant meets the applicable approval criteria. Mr. Triplett indicates that no reclamation is on- going. In fact, the May 6, 2008 letter from DOGAMI indicates that treatment by mulching is considered to be interim reclamation by DOGAMI. David Whistler In his testimony, Mr. Whistler expresses concern on behalf of the Tumalo Rim Water District, that the mine is in the middle of a water protection system and that the District has concerns about the possibility of contamination. In response to the contamination concerns expressed by the District, Applicant supplied letters from its geo- technical engineer Andy Siemens dated February 19, 2008, (Tab 59), May 6, 2008 (Tab 61) and June 3, 2008 (Tab 63), opining that the the risk of contamination from activities at the Latham pit was low. He explained that the risk is low due to the low porosity of the soils underlying the pit and the fact that the District's well draws water from an area that is much, much larger than the pit area. In the end, Mr. Whistler conceded that Latham had adopted spill reporting procedures and on -site training to respond to the potential for spills on site. Mr. Whistler indicated concern with reclamation and dust. He mentions that dust comes from the back wall in the summer, but did not testify as to any dust problems arising since Applicant has applied the mulch material to a portion of the headwall. In addition, he does not indicate that any dust arising from the wall ever leaves the property. David Adams Mr. Adams testified about dust arising from the site and a photo taken from Ridgewood Place or Easter Sunday in 2008. Again Applicant would ask that the Board take official notice of the fad that Easter Sunday was on March 23, 2008 (see attached), which is before any portion of the Latham site was treated with the mulch product. 2 Mr. Adams expressed concern with DEQ's approach to controlling dust, that their approach is to "do the best you can ". He wanted more stringent regulatory action by DEQ. In this case, the standard of approval is that the applicant must satisfy DEQ standards. By its testimony DEQ indicated that the applicant was addressing dust in a manner that is satisfactory to DEQ. It is clear that Applicant is doing what DEQ expects of it. The County cannot seek to impose a stricter standard than DEQ in this area. In response to a question from Commissioner Luke, Mr. Adams admitted that as a user of the park, the view of the headwall from the upper trails of the park "doesn't ruin his day." Mr. Adams admitted that his home does not look into the mine. Helen Whistler Ms. Whistler complains that Latham is not pro- active in trying to avoid dust arising from the pit and then listed a number of ways in which 'Applicant was only reactive to complaints arising from the neighbors. Applicant responds by noting that by its nature dust control is reactive. (See May 20, 2008 Pat McClain testimony, Tab 35, Page 3 .) As was noted by Pat McClain in his testimony of June 3, 2008, (Tab 36, page 3) the intensity of dust control activities varies in response to the circumstances. Too much water applied at once in excess of the evaporation rate will result in making mud. (May 20, 2008 Pat McClain testimony, Tab 35, Page 5.) Applicant has previously responded to the litany of complaints registered by Ms. Whistler. In response to her allegations that the Applicant has not acted to remove the wood waste on the property, this was addressed by Pat McClain in his letter of January 21, 2009, submitted as part of the Applicant's submittal before the Board. Ms. Whistler argues that the dust is carcinogenic, but Applicant has produced evidence from on- site testing showing that neither the Bend Pumice nor the Tumalo Tuff contains harmful concentrations of crystalline silica. (June 7, 1995 AGI Report, Tab 72.) In response to concerns about whether the AGI sampling was representative and accurate, Applicant responded with evidence from its geo- technical engineer, (Andy Siemens, June 2, 2008, Tab 63, Page 2 -3), its industrial hygienist (Kerry Cooley, June 1, 2008, Tab 74, Pages 2 -3) and Pat McClain (June 3, 2008, Pages 1 -2) to debunk the opponents' arguments about the accuracy of the AGI report. In addition, DEQ indicated that it has no air quality standard for silica and that based upon the testing done by Applicant's predecessor, it had no concerns about silica. (Tabs 43 and 44.) Gena McClard Ms. McClard testified about being the closest pre -1990 home to the mine. Her address shows her home to be the former Kemple property, (designated as "location No. 3" in the December 18, 2007 Daly - Standlee noise report, Tab 64, Figure 1) which has been documented as being about 1/4 mile from the active area of the pit. The color aerial photograph referred to at the hearing 3 (with tax lots superimposed) shows the homesite to be located on the southeasterly portion of the property, along the rim of the Deschutes Canyon. Like many other of the opponents, Ms. McLard testified that when she purchased her home in 2007, she was told that the mine would be closing down. As has been noted, there is nothing in the documents that regulate the use of the mine that would support such a conclusion. Due diligence on the part would require that a person review the permitting information to verify whether the site includes a condition that requires the pit to shut down within a certain time period. Ms. McClard claimed there to be no buffering effect from noise and dust, but provided no specific observations about being impacted by either in her residence. Applicant's noise study shows that DEQ noise standards are met at the McClard dwelling (referred to as Location #3 in the noise study). (Tabs 64 and 65.) She testified about her concerns that her children could be endangered by the high wall on the pit property. The evidence from the site plan shows the edge of the permit area (within which mining will take place) to be 100 feet from the Tien/McClard property line at its closest point and to be well more than 100 feet away from the Tien/ McClard property at most points. The April 15, 2008 testimony of Cougar Caverhill documents that the Applicant has fenced the areas of the headwall. In fact, as shown by the aerial photo referred to at the January 21, 2008 hearing, the Tien/McClard home is perched near the rim and steep walls of the Deschutes Canyon, which would pose much more of a threat than the applicant's mine. She testified about concerns for her well (shared with Kemple- Cranston and Gibsons), but did not testify as to any specific impacts that the Applicant's mine might have on the well. From the evidence provided by the Whistlers with respect to the Tumalo Rim Improvement District, any well on any of the Tien/McClard, Kemple- Cranston or Gibson properties would be "upstream" of the mining site and therefore not impacted by groundwater contamination concerns. She expressed concerns about the carcinogenic nature of the dust. Those concerns are responded to above in response to similar concerns expressed by Helen Whistler. Kris Cranston The aerial photograph shows that Ms. Cranston's home to be located southwest of the Applicant's pit. Ms. Cranston raises the issue of increased noise and dust. However, her testimony does not indicate that dust has migrated from the pit onto her property or to her house. Given the direction of the prevailing winds and her upwind location in relation to the pit, it would be highly unlikely for her to suffer any dust impacts at her property, even if dust suppression activities were not effective. In addition, her testimony does not give a time frame for her dust observations, as to whether dust has been observed after the date the Applicant's applied the mulch to the property or started using the tackifier in the water applied to the haul roads. 4 She complained about back -up alarm noises. This was addressed by the Applicant's noise expert in his testimony of May 20, 2008 (Tab 67). /1/ Ms. Cranston brought up the issue of deer migration. As Paul Blikstad responded, the Applicant's pit is not within a WA zone. As noted in Applicant's brief, the ESEE for Site 303 was corrected in 1992 to recognize that the site is not within a Goal 5 wildlife protection zone and to eliminate a required winter closure. Rex Gibson As other opponents have indicated, Dr. Gibson indicated that before he purchased his home he had been told that the mine would be shutting down. Again, what Dr. Gibson may have been told prior to purchasing his home is not relevant to whether the mine may continue to operate. Nothing in the ESEE or other applicable documents places a time limit on how long the mine may be operated. While Dr. Gibson expressed worries, he did not document any specific impacts from the mining operation. A review of the aerial photograph shows that his home is located to the south of the Applicant's property on the far southeastern corner of his property on the rim of the Deschutes River Canyon. 5 Date of Mother's day for year date 2007, 2008, 2009, 2010 Page 1 if 1 Calendar Date The date of Mother's Day - 2007, 2008, 2C Mothers Day Dinner Cruise www.comucopiacruise.com Date Calculator mun perpet.:1,31 cale:Klars. Mother's Day dates ck:O. Imo ?or Uroled St. Patrick's Day Valentine Easter Father's Day Halloween Thanksgiving Christmas Compare Dates I Got Rid Of My Wrinkles Hiow CarasWrinkles.com Want Mothers Day Ha we ; . DeLaFlowers.com Mother's Day In the United States, Mother's day, the day to celebrate mother is observed on the following dates: 2007 - Sunday, May 13th 2008 - Sunday. May 11th 2009 - Sunday, May 10th 2010 - Sunday, May 9th n f Map Date,eCjal ,:i()Q4, 2.00S 2009 Holic Coun E irthc 2005 2 http://wvvw.calendardate.com/mothers_day.htm 2/11/ !009 The date of Easter 2007, 2008, 2009 Cade Page 1 o r 1 The date of Easter - 2007 and 2008, 2009: 2009 Easter Holiday www.webcrawler.com VV Date Calculator tratet,,,Nt Easter dates St. Patrick's Day Valentine Mother's Day Father's Day Halloween Thanksgiving Christmas Compare Dates The Meaning of Easter Devon Easter Holiday www.JesusCentral.com www.ladysmile.co.uk Easter in the United States: Easter, a holiday that is celebrated to commemorate the resurrection of Jesus Christ, is observed on these dates: 2007 - Sunday, April 8th 2008 - Sunday, March 23rd 2009 - Sunday, April 12th 2010 - Sunday, April 4th In Canada: Easter Monday is celebrated on the following dates; 2007 - Monday, April 9th 2008 - Monday, March 24th 2009 - Monday, April 13th 2010 - Monday, April 5th 2009 hiolic Coun 2005 2i http:// www.calendardate.com/easter.htm 2/11, 2009