HomeMy WebLinkAboutLatham Excavation Surface Mining ApplicationsDeschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701 -1960
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AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of April 27, 2009
Please see directions for completing this document on the next page.
DATE: April 21, 2009
FROM: Paul Blikstad Department CDD Phone # 6554
TITLE OF AGENDA ITEM:
Board discussion and possible adoption of the Board's decision on the Latham Excavation surface
mining applications (CU -07 -102, SP- 07 -46) for expanded surface mining operations at the Johnson
Road mining site (site no. 303).
PUBLIC HEARING ON THIS DATE? No.
BACKGROUND AND POLICY IMPLICATIONS:
The Board upheld the Hearings Officer's approval with some modifications to the original decision.
Staff has reviewed the draft submitted by the applicant's counsel, and has made several changes to it.
The decision has to be mailed out by April 30, 2009.
FISCAL IMPLICATIONS:
None.
RECOMMENDATION & ACTION REQUESTED:
The Board will decide whether the written decision is satisfactory to them.
ATTENDANCE: Paul Blikstad, Laurie Craghead
DISTRIBUTION OF DOCUMENTS:
Planning staff will mail out the written decision of the Board once it is completed.
For Recording Stamp Only
DECISION OF THE BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
FILE NUMBERS:
APPLICANT:
PROPERTY OWNER:
APPLICANT'S ATTORNEY:
REQUEST:
PROPERTY:
STAFF CONTACT:
RECORD CLOSED:
A -08 -14 & A -08 -20 - CU- 07- 102/SP -07 -46 (MA -08 -3,
MA -08 -4)
Mark Latham Excavation, Inc.
dba Latham Excavation
84 SW 5th St.
Bend, Oregon 97702
McClain Investments, LLC
62628 McClain Drive
Bend, OR 97701
Bruce White
Bruce W. White, Attorney, LLC
PO Box 1298
Bend, OR 97709
Site plan approval for proposed surface mining operation
at Site No. 303 to extract and process pumice and
overburden resources, including the addition of a scale
and scale house. Approval of a conditional use permit to
allow crushing at three alternative sites for excavated
material.
Tax Lots 17 -12 -07 -300 and 301
Paul Blikstad, Senior Planner
February 18, 2009
SUMMARY OF DECISION:
In this decision, the Board of County Commissioners ( "Board ") is asked to decide on a site plan
to expand the mining of pumice and to include the associated overburden, including volcanic tuff
and incidental aggregate, and a conditional use to allow crushing of such materials on site. The
site that was historically used for surface mining dating back to the 1970s and that has an
existing site plan approved in 1997 for mining activities. The case comes to the Board on the
appeal of both the applicant and opponents, Eric and Ronna Hoffman, which were heard de
novo.
CU -07 -102, SP -07 -46 (MA -08 -3, MA -08 -4) A- 08 -14, A -08 -20 Page 1
In this decision, the Board approves the applicant's site plan for the proposed mining operation,
including one site for processing, and applicant's conditional use application to allow crushing at
the southwest location noted on the site plan, all subject to the conditions set forth in Section VII
herein.
On the issues presented by this appeal, the Board decides as follows:
• The proposed mining is within the scope of mining anticipated by the ESEE both as to
the amount of material and as to the type of material. As set forth in the Board's
discussion in Section IV(B)(1)(a) and (b) of this decision at pages 8 to 15, neither the
ESEE nor the implementing site plan regulations limit the amount of material to be
mined, nor is there any limit on the duration of mining at the site. In the absence of any
express limitations in the ESEE or in the implementing site plan regulations, mining of
the overlying Tumalo tuff, closely associated with the Bend pumice, is within the scope
of the ESEE and no new ESEE is required in order to approve the proposed mining
activities.
• As set forth in the Board's discussion in Sections IV(B)(1)(c) and VI(1) of this decision
at pages 15 and 69 -71, the ESEE's Program to Meet the Goal authorizes crushing. The
ESEE's Program to Meet the Goal allows for "processing." The definition of "surface
mining, processing," included in the zoning ordinance implementing the ESEE's Program
to Meet the Goal may appropriately be considered in determining the Board's intent on
what is to be included in the term "processing." The definition of processing in the
zoning ordinance includes crushing and accordingly, crushing is allowed at Site 303,
subject to the conditional use standards in DCC Chapter 18.52.
• As set forth in the Board's discussion in Section IV(B)(1)(d) of this decision at pages 15-
18, the only portion of the ESEE that is to be applied during the site plan permitting
process is the ESEE's Program to Meet the Goal as implemented through the site plan
regulations. DCC 18.52.020 allows application of restrictions or allowances from the
conditions listed in the ESEE's Program to Meet the Goal where such allowances or
restrictions are either an additional restriction or allowance contemplated by or not found
in the site plan regulations or a more strict limitation than found in the site plan
regulations. To be consistent with Goal 5 and the findings implementing the Program to
Meet the Goal DCC 18.52.100 and DC 18.52.110(P) must be interpreted narrowly to
constitute nothing more than a cross - reference to those conditions of the ESEE Program
to Meet the Goal that either are not otherwise addressed in the implementing site plan
criteria or that conflict with the site plan criteria.
• As set forth in the Board's discussion in Section IV(B)(2) of this decision at pages 18 -19,
provided the proposal falls within the scope of the existing ESEE, there is no basis in law
that would allow the Board to consider a new ESEE for the site while applications for a
site plan and conditional use are pending.
• As set forth in the Board's discussion in Section IV(B)(1)(e) and IV(C) of this decision at
pages 18 and 19 -23, the scope of a "noise- sensitive use" is limited to include the structure
plus 25 feet, per OAR 340 - 035- 0035(3)(b), that defines the use and does not include any
CU -07 -102, SP -07 -46 (MA -08 -3, MA -08 -4) A- 08 -14, A -08 -20 Page 2
other associated grounds, such as fields, gardens and driveways. The Hearings Officer
erred in relying upon a definition from the body of the ESEE, when the ESEE Program to
Meet the Goal and the ESEE findings indicate that definitions from the zoning ordinance
are the applicable definitions. The zoning ordinance definition defines the use with
reference to activities and with the types of uses where noise - sensitive uses are carried on
indoors. This, coupled with the application of the DEQ noise control definition from
which the zoning ordinance definition is derived, indicates an intent in the County Code
that the applicable portion of the property is the dwelling location plus 25 feet. The
context of the "noise- sensitive use" definition supports such a conclusion. Use of the
term in the context of "setbacks" indicates a County Code intent to use a structure as the
reference for applying the setback. A definition of "noise- sensitive use" that includes the
grounds in addition to the dwelling location is too restrictive for siting structures in the
SMIA zone and would be difficult to administer in practice.
Despite slight differences in the definition, for most the same reasons as cited for "noise-
sensitive uses ", "dust- sensitive uses" need to be interpreted similarly. This is evidenced
by reviewing the one instance in which the term "dust- sensitive use" is used by itself with
reference to a setback. Finally, in most instances in the site plan regulations, "noise-
sensitive uses" and "dust- sensitive uses" are used together; accordingly they need to be
interpreted in a similar fashion for the ordinance to be applied in a coherent fashion.
The Board finds, however, that the evidence in the record shows that applicant's attempts
at dust control of the headwall are inadequate to prevent dust from affecting the dust -
sensitive uses in the area. Therefore, the Board adds Condition 23, prohibiting further
mining of the headwall until applicant submits a new site plan demonstrating that
applicant can provide sufficient dust control. This site plan, of course, will be subject to
public notice and comment and /or a public hearing in accordance with DCC Chapter 22.
• As set forth in the Board's discussion in Section IV(D) of this decision at pages 23 -26,
the visual screening protections are intended to protect the views only from the location
of the protective uses listed in DCC 18.52.110(B)(3). Applying the appropriate definition
of noise and dust - sensitive use to the circumstances of this case, no supplied screening is
necessary to protect the pre -1990 Hoffman residence, and the Hearings Officer's decision
on this issue is overturned. With regard to screening the pit headwall from view of the
higher elevations in Tumalo State Park, the Board finds that the ESEE's Program to Meet
the Goal is implemented by the screening requirements of DCC 18.52.110(B) , the
screening requirements do not establish an absolute "no impact" standard. Although the
Board finds that man -made situations do not fall within the topographical exception to
screening set forth in DCC 18.52.110(B)(6)(2) because "topography" in both (a) and (b)
mean natural topography, the Board finds that the natural topography separating the mine
from the surrounding uses is such that it would be impracticable, if not impossible, to
screen the mine from all trails in Tumalo Park and from the other nearby uses.
• As set forth in the Board's discussion in Section IV(E) of this decision at pages 26 -27,
traffic impact issues are not addressed in the ESEE's Program to Meet the Goal and are
addressed in only a limited fashion in the implementing site plan regulations. There is no
CU -07 -102, SP -07 -46 (MA -08 -3, MA -08 -4) A- 08 -14, A -08 -20 Page 3
basis under the ESEE and the site plan regulations to impose limitations on the site based
on sight distance or off -site traffic capacity issues.
• As set forth in the Board's discussion in Section IV(F) of this decision at pages 27 -29,
DOGAMI has exclusive authority to review and consider reclamation issues and to
approve reclamation site plans in cases such as this that are subject to DOGAMI
jurisdiction.
• As set forth in the Board's discussion in Section IV(G) of this decision at page 29, the
importation of clean fill onto the site does not trigger the need to gain land use approval
of the site as a landfill, provided the fill is for reclamation purposes only.
• As set forth in the Board's discussion in Section V(A)(6) of this decision at pages 34 -37,
the quarter -mile setbacks are met from pre -1990 dwellings for the storage of excavated
materials held for sale , with a small exception warranted for the storage of materials
within the quarter -mile setback from the former Kemple residence. Applying the
appropriate interpretation for noise - sensitive and dust - sensitive uses from the location of
the dwellings, the quarter -mile setbacks for the one processing site approved by this
decision are met. The quarter -mile setback from the pre -1990 dwellings are met for the
current equipment storage area and can be met in successive mining stages by storing the
equipment outside the (i/) quarter -mile setbacks shown on the site plan map.
• As set forth in the Board's discussion in Section V(A)(6) of this decision at pages 40 -46,
the visual screening requirements are met. The only issues appear to be the screening
from the pre -1990 Hoffman residence and screening from the higher elevation areas of
Tumalo State Park. The Hearings Officer's determination that the views from the
Hoffinan driveway needed to be protected is reversed by the Board's determination that
noise - sensitive and dust - sensitive uses only include the actual dwelling site plus 25 feet.
Additionally, although Board agrees with the Hearings officer's interpretation of DCC
18.52.110(B)(6)(b) that the exception does not apply to man -made topography, the Board
finds that the natural topography along the Eastern edge of the property is such that
requiring additional screening materials to be planted will be futile.
• As set forth in the Board's discussion in Section V(A)(6) of this decision at pages 46 -51,
the applicable DEQ air quality standards can be met if applicant adheres to the conditions
of approval and the dust from the mining site does not create a nuisance under state
regulations. The applicable standard to be met is the nuisance standard of OAR 340 -208-
0210(2). The standard is not a numerical standard and, given the variables associated
with dust control and the aspirational tenns of the nuisance standard, does not lend itself
to prescribing quantifiable standards of approval. The menu of best management
practices presented in applicant's dust control plan and the availability of water for dust
control demonstrates that applicant can meet the DEQ nuisance standard. The mulch
proved effective for preventing emissions from exposed areas except for the headwall.
• As set forth in the Board's discussion in Section V(A)(6) of this decision at pages 53 -57,
the applicable DEQ noise control standards are met. The applicable standard is DEQ's
CU -07 -102, SP -07 -46 (MA -08 -3, MA -08 -4) A- 08 -14, A -08 -20 Page 4
rule for "New Sources on Previously Used Sites" at OAR 340 - 035- 0035(1)(b)(A), since
the site was used for mining over the previous 20 years. Applicant demonstrated from
the noise studies presented by its noise expert that the proposed mining operation,
including the pumice crusher and the rock crusher at the location approved by the Board
can meet the DEQ noise control standards. Under the circumstances, there is no need to
specify exact equipment models, but applicant will be required to supply the results of
monitoring tests every other year. The Board finds, however, that the Southwestern
processing site provides the greatest protection from excessive noise and dust and is the
only location approved under this application for processing materials on -site.
• As set forth in the Board's discussion in Section V(A)(6) of this decision at pages 60 -62,
the applicable DEQ water quality standards for surface water are met. Surface water will
be retained on site and there will be no discharge of waters into the Deschutes River or
other waters of the state. To the extent that areas outside the permit are relevant,
discharge of storm water onto the adjacent Hoffman and Todd properties can be
controlled by directing storm water away from adjacent properties by berming and
contouring. Condition of approval 17 requires such redirection of storm water.
Wastewater discharged from the proposed wash plant can be contained on site and is
covered by the WPCF -1000 permit issued by DEQ. The water quality approval standard
does not address the Tumalo Rim Water Improvement District's concerns about potential
groundwater contamination issues and protection of its wells.
• As set forth in the Board's discussion in Section V(A)(6) of this decision at pages 61 -62,
the applicant has an adequate amount of water for dust control and any amount needed
for processing.
II. APPLICABLE CRITERIA:
The Board adopts the Hearings Officer's findings in Section I of her decision and incorporates
them herein as its own findings.
III. BASIC FINDINGS:
The Board adopts as its basic findings the findings that were made by the Hearings Officer, in
Sections II (A) through (J) except as noted, replaced or amplified on below.
F. PROPOSAL: The applicant is requesting approval of a site plan and conditional use
permit to operate a surface mine on the site. The subject property was most recently
mined for pumice, as approved in the surface mining approval from 1995 (SP- 95 -10).
Applicant's site plan proposal is included on a revised site plan map submitted on March
20, 2008 as supplemented by the map submitted at the April 15, 2008, hearing, including
three proposed processing locations and showing five acres, representing quarter -mile
setbacks from nearby noise and dust - sensitive uses. The site plan also reflects a revised
location, as shown on the map submitted on April 15, 2008 (showing the quarter -mile
setbacks), outside the quarter -mile setback for the southeast processing location.
CU -07 -102, SP -07 -46 (MA -08 -3, MA -08 -4) A- 08 -14, A -08 -20 Page 5
The applicant's revised conditional use and site plan request includes the following, as
listed on the applicant's March 20, 2008 submittal, as supplemented thereafter:
• Extraction within the general footprint of the area approved for extraction in SP -95-
10, as shown on the March 20, 2008 site plan, outlined in black ink by a combination
of lines denoted as "limit of mining activity ". Extraction will occur in "slots" or
excavation areas, starting generally with a slot located in the southwest portion of the
property, then moving to the southeast, northwest and finishing at the northeast
corner.
• Excavation of Bend pumice and associated Tumalo tuff overburden material and
aggregate materials incidental to excavating pumice and Tumalo tuff.
• Processing and sale of materials extracted on -site to industrial and commercial
customers; processing to include screening and crushing of pumice, tuff and other
incidental rock materials encountered in extraction of pumice and overburden
materials, and washing of the tuff as needed to meet client specifications.
• Extraction areas to include area of up to five acresl of the site at any given time. The
extraction area does not include access roads, stockpile sites; equipment storage
areas, processing areas, and areas undergoing reclamation.
• Retention of clean fill from off -site brought onto the property prior to the hearing
before the Board for eventual use in reclamation.
• Identification of three alternative locations (as shown on the April 15, 2008 setback
map) for screening and crushing of pumice and overburden materials and washing of
tuff for production of arena sand.
• Use of screening and crushing equipment for crushing pumice, welded tuff and
incidental aggregate. Crusher equipment includes a roll crusher and its associated
screening plant for crushing pumice and a rock crusher and its associated screening
plant for crushing welded tuff pieces and incidental aggregate. The crusher at the
northeast location is proposed to be sheltered by either a 5 -foot berm or located at an
elevation 5 feet below grade. Crushers to be screened from high elevations of
Tumalo State Park by berms or stockpiles 16 feet in height.
• Equipment storage and stockpile locations subject to quarter -mile setbacks from the
Hoffman pre -1990 residence, the Todd residence, the former Kemple residence2, and
the two closest Tumalo Rim subdivision properties, except for slight exception for
quarter -mile setback from former Kemple residence, which is now owned by the Ray
Tien family, who testified before the Hearings Officer and the Board (as shown on
April 15, 2008 map with quarter -mile setbacks shown as arcs).
• Shielding of stored equipment from pre -1990 residences across the river by berms, as
necessary when the current vehicle storage area is mined and is not available for use.
1 The reference on the site plan to 160,000 square feet as a limit is erroneous based upon the site plan for SP -95 -010
and should be disregarded. The March 20, 2008 site plan shows the 160,000 square -foot slot area crossed out.
2 Because the residence is referred to in the application materials and on one or more maps as the Kemple residence,
to avoid confusion the Board will continue to reference it as the Kemple or former Kemple residence in this
decision.
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• Placement and use of a portable scale next to the entrance road for weighing
excavated materials on site and construction of a small scale -house associated with
use of the scale.
• Hours of operation from 7 a.m. to 6 p.m. on weekdays and from 7 a.m. to 5 p.m. on
Saturday, year- round, although the original application was for 7 a.m. to 6 p.m. from
November 15, through February 15 and from 7 a.m. to 5 p.m. from February 16. to
November 14.
• Placement of a monitoring weather station on the site.
• Use of a water system, consisting of an existing well and water tank, and a truck for
dust suppression and to allow the use of the truck as needed after hours and on
weekends to ensure that dust impacts are minimized.
• Waste water from the wash plant is to be disposed of by spraying the water from a
hose and nozzle over stockpiles, roads and mulched areas to control dust.
The applicant proposes to minimize the impact of the mining activities by applying and
maintaining a dust suppressant (NaturesOwn mulch or its equivalent) to exposed areas
not subject to vehicular travel and not being actively worked and by watering the
stockpiles, internal drives and walls, as needed, including a tackifier agent when
conditions or watering warrant, and ceasing extractive activities on days where the wind
blows more than 20 miles per hour and humidity is less than 50 %, as measured by an on-
site weather station. In addition, to minimize dust emissions from loaded trucks, the
loads will either be covered or watered before leaving the site.
This modified proposal eliminated a number of aspects of the original application that
caused concern for staff and neighboring property owners: the construction of an office
and shop and other structural accessory support facilities on site, the expansion of the
excavation boundaries, a proposal to allow drilling and blasting and a proposal to allow
the sale of minerals not excavated on site.
PROCEDURAL HISTORY: These applications were originally deemed complete and
accepted on November 19, 2007. An initial hearing was held on January 15, 2008, at
which time applicant requested a continuance. At the continued hearing, on February 19,
2008, the applicant submitted additional materials, which were deemed to require a
modification of the application. The applicant submitted a modification of application on
March 20, 2008. As required under section 22.20.055 of Title 22 of the Deschutes
County Code, the submittal of a modification of application automatically restarted the
150 -day review period upon which the County must complete review of the applications.
A hearing date before the hearings officer on the modified applications was noticed for
and held on April 15, 2008. The record was held open after the April 15, 2008 hearing
for additional written testimony, with additional written submittals received on May 6,
2008, rebuttal testimony received on May 20, 2008, applicant's rebuttal received on June
3, 2008 and applicant's final argument received on June 10, 2008. The Hearings Officer
issued her decision on July 31, 2008. On August 12, 2008, the applicant requested
CU -07 -102, SP -07 -46 (MA -08 -3, MA -08 -4) A- 08 -14, A -08 -20 Page 7
reconsideration of the Hearings Officer's decision and opponents3 Eric and Ronna
Hoffinan appealed the Hearings Officer's decision. While the decision was being
reconsidered, the 150 -day time clock did not run pursuant to DCC 22.30.010. The
Hearings Officer issued her decision on reconsideration on October 16, 2008 and the
applicant filed an appeal on October 27, 2008. Upon receiving an extension of time from
the applicant of the 150 -day clock, the Board determined to hear both appeals in a de
novo hearing.
The Board heard the appeal on January 21, 2009 and January 26, 2009 and allowed for
written rebuttal argument for both parties until February 11, 2009, with applicant allowed
a final written response on February 18, 2009. On February 25, 2009, the Board met to
deliberate on its decision. The applicant extended the 150 -day deadline to April 30,
2009. This decision was adopted on April 27, 2009 by the Board of County
Commissioners.
At the time of this final decision, the 150 -day time clock, including all extensions by the
applicant and tolling of time, three days remain.
IV. FINDINGS OF FACT AND CONCLUSION OF LAW
SPECIFIC LEGAL ISSUES
Applicant requested site plan approval to expand the nature of the existing operations at the site.
In addition, applicant seeks conditional use approval to allow crushing on the site. Each
requested approval is reviewed separately in this decision under Sections V (Site Plan) and VI
(Conditional Use). Before addressing the individual standards of the site plan and the
conditional use, however, the Board will address some preliminary legal questions relating to the
application of the former site plan, the scope of the ESEE and some of the more contentious
issues that were argued on appeal by the parties.
A. Applicability of SP -95 -10
The Hearings Officer found in her decision that one of the major disagreements between the
applicant and the opponents is the applicability of Cascade Pumice's site plan prior approval
(SP- 95 -10) to this proposal. She found that the applicant's proposal exceeded the scope of that
earlier approval 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. She noted that several
neighbors, including appellant Eric Hoffman, had testified that they had been assured by
representatives from Cascade Pumice, Inc. (Cascade Pumice), the applicant's predecessor -in-
interest, that Cascade Pumice did not intend to mine for longer than eight to ten years on the site
because the site's pumice reserves would be depleted within that tune. She found that several of
3 Many of the neighboring property owners expressed concerns regarding the proposal. For ease of reference,
common concerns are generically attributed to "opponents." Specific issues raised by individuals are separately
addressed.
CU -07 -102, SP -07 -46 (MA -08 -3, MA -08 -4) A- 08 -14, A -08 -20 Page 8
those neighbors asserted that their concerns with respect to Cascade Pumice's activities were
allayed based on those representations.
The Hearings Officer also noted in her decision that neighbors had testified that Cascade
Pumice's activities caused fewer impacts for residents and local wildlife, in that Cascade Pumice
did not haul during winter months and took the materials elsewhere for crushing. She noted that
opponents argued that Latham Excavation is bound to the limitations of the SP 95 -10 application
and approval, either because that permit established the outer limits of permissible mining
activity, or because they relied on those representations to purchase or make improvements in the
area.
In response to such arguments, the Hearings Officer found that Cascade Pumice's self - imposed
limitations in SP -95 -010, such as agreeing to mining slots smaller than the maximum allowed
and hours of operation less than the maximum allowed, do not impose similar limitations on the
applicant for this application. The Hearings Officer agreed with the applicant that the only
relevant review criteria is that set out in the Site 303 Goal 5 program (Site 303 Program) and the
zoning code, that applicant's proposal stands on its own and that there was no requirement that
as part of this approval the applicant should be required to abide by the limitations or conditions
set out in the SP -95 -010 approval, provided all applicable approval criteria are met.
On appeal before the Board, several of the opponents reiterated their concern about the prior
operator's time frame and that the applicant was proposing to expand the operations in a manner
that would extend the time frame of mine operations. In addition, the attorney for the Hoffiiians
argued that the current permit was not being complied with.
The Board finds that Cascade Pumice's activities do provide perspective on the likely impacts of
this proposal and SP 95 -10 provides reasonable alternatives that might address those impacts.
The Board agrees with the Hearings Officer, however, that the current proposal stands apart from
the prior approval and that the Board is not bound by the restrictions set forth in that decision.
Whether or not there are violations of the prior permit, the Board finds that its inquiry is whether
the current proposal meets the approval criteria.
B. Deschutes County Comprehensive Plan ESEE for Surface Mining
Perhaps the greatest area of contention between the applicants and the opponents, both before the
Hearings Officer and before the Board on appeal, is the extent to which the ESEE for Site 303
continues to play a part in the permit decision - making for mining activities under the zoning
code. These issues concern whether the Goal 5 inventory for the site, as referenced in the ESEE,
limits the amount of material to be taken from the site; whether mining must be limited to mining
the specific material identified in the Goal 5 inventory and referenced in the ESEE; and whether
conflicts identified in the ESEE can be resolved in ways other than as provided in the Program to
Meet the Goal or in the specific setbacks, standards and conditions of DCC Chapter 18.52 that
implement the ESEE decision. A second issue identified by the opponents was that the ESEE
should be updated to reflect changes in circumstances, including increased use of Tumalo State
Park, a recent recognition that groundwater flows under the proposed mining site to the Tumalo
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Rim Water Improvement District's wells and a relatively recent recognition that crystalline silica
can cause cancer. The Board will address the issues separately below.
1. Scope of the ESEE
In answer to the first issue, the Board finds it is helpful to review the context of the ESEE and
the implementing zoning ordinance provisions. Mineral and aggregate resources are regulated
under Statewide Planning Goal 5, as implemented by the Oregon Administrative Rule found at
OAR 660 -016 -000 et seq. As part of the acknowledgement of its initial comprehensive plan, the
County was required to address the mineral and aggregate resources under Goal 5. The County
addressed its compliance with Goal 5 as it relates to mineral and aggregate resources through a
hearing process in the period of 1988 through 1990, resulting in adoption of a package of
ordinances that together constitute the surface mining element of its comprehensive plan and
implementing zoning ordinance.
On July 12, 1990, the effective date of Ordinance 90 -014, the county adopted ordinances
addressing its Goal 5 mineral and aggregate resources. The ordinances included (1)
comprehensive plan policies addressing mining in general (Ordinance 90 -028), (2) an inventory
of known mineral and aggregate resources (Ordinance 90 -025), (3) an economic, social,
environmental and energy (ESEE) analysis for each identified significant site (Ordinance 90-
029), (4) programs to achieve the goal at each of those sites (Ordinance 90 -029), and (5) Surface
Mining (SM) zone regulations intended to implement the ESEE decisions (Ordinance 90- 014).4
According to the county's Goal 5 inventory, Site 303 contained approximately 10,000 cubic
yards of aggregate and 750,000 cubic yards of "good quality" pumice in 1990. After identifying
conflicting uses and resources and assessing the ESEE consequences of allowing the mining in
the context of expansion of an already- existing site with conflicts already or previously existing ,
the county adopted a Program to Meet the Goal. That program that allowed both further mining
of the site and also allowed the conflicting uses and natural resources within the identified
impact area (a decision to "Limit Conflicting Uses" under OAR 660 - 016 - 0010(3)). The decision
and Program to Meet the Goal was set out in Paragraph 23 of the ESEE as follows:
The Board .finds that in order to protect both the aggregate resource and the
conflicting resources and uses, the site on top of the plateaus will be zoned for
surface mining, subject to the, following ESEE conditions:
(a) Setbacks shall be required for potential conflicting residential and other
development;
' Those ordinances, including the findings associated with their adoption, have all been made a part of the hearing
record in this case.
5 It appears to the Board that the reference to the "top of the plateau" is a scrivener's error, perhaps imported from
the ESEE in Site 322, which is located along the Deschutes River on a plateau above the river.
CU -07 -102, SP -07 -46 (MA -08 -3, MA -08 -4) A- 08 -14, A -08 -20 Page 10
(b) Noise and visual impacts shall be mitigated by buffering and screening, with
particular attention paid to screening, from Tumalo State Park or the eastern,
northeastern and southeastern boundaries;
(c) Hours of operation shall be consistent with DEQ standards and applicable
county ordinances;
(d) Wildlife restrictions set forth in ODFW's letter of August 10, 1989, shall
apply; 6
(e) Excavation shall be limited to five acres with ongoing incremental
reclamation (subject to DOGAMI review and approval);
(0 Mining operations, including placement of processing operations and
equipment and excavation and transport of materials shall meet all applicable
DEQ noise and dust standards.
The Board finds that processing on site will be allowed.
Paragraphs 24 — 28 of the ESEE describe how the Program is to be implemented. In Paragraph
24, the ESEE found that conflicts between the mine site and with natural resources, including
scenic views, would be resolved through the screening and buffering limitations found in the SM
zone. In Paragraph 25, the ESEE states that the SM zoning would protect the resource by
allowing for mining activities on the site and limiting on site uses that would conflict with
mining of the site. In addition, in Paragraph 26, the Board found that mining would be protected
by limiting conflicting uses through the establishment of the SMIA zone in the zoning ordinance
provisions adopted by Ordinance 90 -014, requiring new conflicting uses to meet setback
requirements. In Paragraph 28, the Board found that existing conflicting land uses were to be
protected by the requirement that new surface mines or expansion of existing mines meet
screening requirements, setback requirements, noise standards, adhere to limits on maximum
area of surface disturbance and other limitations.
In essence, in its ESEE Program to Meet the Goal for Site 303, the Board delegated the task of
implementing its decision to the provisions found in the SM and SMIA zones in the zoning
ordinance. This is confirmed by the findings made by the Board in Ordinance 90 -029, which
adopted the ESEEs. Those findings include Finding 20, on pages 5 -7, to demonstrate that the
County's surface mining provisions, including the ESEE decisions, complied with Goal 5.
Finding 20 includes the following finding at subsection (d):
"Development of a program to meet the goal of protecting mineral and
aggregate resources in the county has taken shape through the individual ESEE
decisions and the implementation of those ESEE decisions through the surface
6 This portion of the Program to Meet the Goal was subsequently removed by an amendment to the ESEE adopted
by Ordinance 92 -044. With respect to Site 303, the amendments removed the requirement that hauling be prohibited
between November 15 and February 15.
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mining ordinance. The surface mining ordinance establishes standards and
procedures for surface mining operations and for development on lands within
the impact area of a surface mining site. The ordinance provides that standards
and procedures established in site specific ESEE analysis controls over the
standards and procedures when there is a conflict. The ordinance also provides
that the standards and procedures in the ordinance and the site - specific ESEE
analyses apply to the site with existing DOGAMI and /or County permits or
exemptions only when such sites are expanded beyond the boundary of the
areas covered by such permit or exemption." (Emphasis added.)
Within the SM zone, DCC 18.52.020 also explicitly states that the setbacks, operation
standards and conditions set forth in DCC 18.52.090, 18.52.110 and 18.52.140 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.
a. Amount of Material and Duration of Mining Activities.
As noted, the opponents argue that the proposal exceeds the scope of mining contemplated under
the ESEE because the proposal will result in extraction of minerals in an amount greater than
those listed on the County's Goal 5 surface mining inventory and referred to in the ESEE for Site
303.
The Board finds that nothing in Goal 5, the Site 303 ESEE or in the implementing provisions of
DCC Chapter 18.52 treats the inventoried amount of material as a cap on the amount of material
that can be taken from a site designated for mining in Deschutes County under Goal 5. Starting
with the Goal 5 inventory requirements, the Board finds from OAR 660 -016- 000(3) that the level
of detail required for listing the quantity, quality and location of a mineral resource depended
upon how much information was available or "obtainable." In the ESEE hearing record for Site
303, Cascade Pumice estimated the site had between 750,000 to 1,000,000 cubic yards of
material. The Board found, at the time of the 1990 ESEE, that such information was sufficient
for it to proceed with the Goal 5 process. There was no pretense that the amount of material
listed on the inventory was exact, and in the absence of a challenge to the inventory information
by objectors, there was no requirement to be exact. See OAR 660 - 016 - 0000(4).
For example, The findings for Ordinance 90 -025 include the following finding regarding how
resource quantities were determined for inventory purposes:
"In developing information concerning quality, quantity, and location for each
site, the County has relied upon information supplied by owners as well as. from
government publications and permit information. Where such data is not
disputed, no expert opinion has been required by the County and the opinion of
the owner or operator has been accepted. The Board finds that without great
expense, more accurate information concerning quantity and quality could not
reasonably be obtained for these resources. The Board finds that such
uncontroverted information is sufficient under the provisions and implementing
regulations o f Goal 5 ... "
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The Board finds, from the case law cited by the applicant interpreting the Goal 5 rule, that the
conflicts analysis and ESEE consequences analysis can be general in nature so long as the Board
can support its decision and Program to Meet the Goal with reasons. In this case, the ESEE
analyzed the conflicts, weighed the importance of the resource versus the importance of the
conflicting uses and made a reasoned decision in the Program to Meet the Goal to regulate both
the mining resource and the conflicting uses and resources. Nothing in the implementing zoning
ordinance specifies that the mine site is limited to a particular amount of material.
Similarly, the Board finds that nothing in the ESEE established a time limit on how long mining
activities could occur at the site. The Board finds from reviewing the Program to Meet the Goal
in nearby Site 305/306 that when the Board wished to establish a time limit for mining activities
at a site, it did so expressly with a provision in the Program to Meet the Goal. In the one
instance where the duration of a mine operation was an issue, the Program to Meet the Goal in
the ESEE for that site was specifically conditioned to restrict mining to only a year's time.
The opponents argue that the ESEE statement that mining uses are transitional supports an
argument that mining sites such as Site 303 are to have a limited duration and limited amount
and type of materials allowed to be excavated. However, that same language was used in all of
the County's surface mining ESEEs no matter how much material was present. The use of the
term "transitional use" recognizes only that mines are not permanent and that after a resource is
depleted, the land transitions to other uses, such as residential use. Nothing about the use of the
term "transitional use" in the ESEE expresses any policy of how long a mine's life should be.
The opponents also argue that the reference to "identified deposits" in DCC 18.52.010(B) limits
the application of the Chapter 18.52 surface mining regulations to the exact amount of resource
that was listed on the inventory. The Board finds that the use of term "identified deposits" in the
purposes section of the county code for the surface mining zone are intended as words of general
description and not limitation. Nothing about the use of the terrn "identified deposits" indicates
that only specifically identified deposits were to be mined; rather it simply indicates that sites
with identified deposits are subject to regulation under Chapter 18.52.
Finally, DCC 18.52.200 prohibits rezoning an SM -zoned parcel for non - mining uses unless the
operator demonstrates that "a significant resource" no longer exists on the site. That provision
demonstrates that the inventoried amount of material is not a ceiling on how much material can
be removed from the mine site. If the Board had intended the inventoried amount to be the limit
of mining, it would have used a teen such as "inventoried resource" instead of the more general
term "a significant resource."
In support of his argument that mining should be limited by the amounts expressed in the ESEE,
the Hoffmans' attorney argues that OAR 660 - 023- 0180(5)(d)(C) requires consideration of the
duration of the mining operation as part of the ESEE analysis. The Board finds the Division 23
rules do not apply to this proposal. The Division 23 rules did not exist in 1990 when the ESEE
7 That was the ESEE for Site 305/306, located only a short distance from the subject site, adjacent to the Tumalo
Rim subdivision.
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in this case was drafted. The Division 23 rules are sufficiently different in their methodology,
they are not applicable or appropriate for interpreting the scope and meaning of the ESEEs, such
as for Site 303, drafted under the Division 16 administrative rules. The Division 16 rules
describe a more generalized conflicts identification and conflict resolution process, whereas the
Division 23 rules describe a very prescriptive process at the comprehensive plan amendment
stage that involves analysis of whether certain standards, such as DEQ noise, air quality and
water quality standards can be met as part of the conflicts resolution process of the Goal 5
process.
b. Type of Material.
The opponents also argue that the fact that only pumice and not tuff was listed on the
Goal 5 inventory precludes the applicant from mining the overlying Tumalo tuff unless the tuff is
separately inventoried and subjected to the ESEE process. For reasons similar to the reasons
stated above, the Board finds that the Site 303 ESEE and the implementing zoning ordinance do
not limit the applicant from excavating and selling the overlying Tumalo tuff.
As it found previously, the Board finds that the conflicts analysis and the ESEE consequences
analysis were somewhat formulaic and generic in nature. For example, the ESEE for Site 303
identified blasting as one of the impacts of mining the material at the site even though excavation
of the pumice and the overlying tuff does not require blasting. The Board also finds that, at the
time the ESEE was written, no information was submitted or required as to exactly where on the
site the deposit was located, how deep the deposit was, what kind of material, if any, overlaid the
inventoried material, nor what exact type of mining nor type of machinery would be necessary in
order to mine the material at the site. In addition, there was no information required or submitted
as to what materials might be used for reclamation, how the site might be reclaimed or what the
site might look like after reclamation. As noted in the appellate cases cited by the applicant, no
such detailed information was necessary in order to comply with Goal 5. All that was required
under OAR 660 - 016 -0005 for the ESEE analysis was a description of the resource and site
sufficient to allow a description of the general nature and scope of the conflicts such that in
electing which of the three choices allowed under OAR 660 -016 -0010, the Board could give
reasons for and explain its decision. This the Board did in the ESEE in weighing the relative
importance of the aggregate resource and the relative importance of the conflicting resources and
the relative importance of the conflicting uses (to other conflicting uses) and then resolving the
conflicts under Paragraph 23 in the Program to Meet the Goal.
The Board finds that the result of mining the Tumalo tuff in addition to the Bend pumice in this
case does not result in significant added impacts that exceed or are in any way different in kind
than the general impacts of mining documented and contemplated in the ESEE analysis. As an
overlying band of mineral material, the tuff must necessarily be excavated and stored on site in
any event to expose and mine the underlying Bend pumice. The Board finds from information in
the record from the Oregon Department of Geology and Mineral Industries (DOGAMI) and from
applicant's geotechnical expert that Tumalo tuff qualifies as a mineral under the County's DCC
18.04.030 definition of a "mineral" and that the Bend pumice and the Tumalo tuff are derived
from the same volcanic event and are similar in composition, except for grain size, with the tuff
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being made up of 30% pumice inclusions by weight. Because of the nature of the tuff material, it
is excavated in exactly the same manner as the Bend Pumice, using the same kind of machinery
as is involved in the excavation of the Tumalo tuff. About the only difference is that, when used
as a fill material, the Tumalo tuff doesn't require processing, while the Bend pumice must be
screened and crushed. While the excavation of the Tumalo tuff in addition to the Bend Pumice
would result in additional truck traffic, the Board finds that the ESEE's Program to Meet the
Goal and the implementing zoning ordinance do not regulate the amount of truck traffic required
to service the mine.
The Board finds that an understatement of the inventoried resource at the site would not have
affected the resolution of conflicts in the ESEE process in this case, since, under the conflicts
resolution step in OAR 660 - 016 -0010, the resolution of conflicts requires weighing the relative
importance of the resource site vis a vis the relative importance of the conflicting use and does
not involve a weighing of the impacts. If anything, inventorying just the pumice resource would
have tended to give the site less importance in the ESEE evaluation process as weighed against
the importance of the conflicting resources and uses; but, even then, the resource was sufficiently
important to warrant protection. Similarly, the Board finds, from a comparison with two nearby
surface mining sites, Sites 304 and 305/306, that the specific inclusion of an amount of Tumalo
tuff on the inventory would not have resulted in any different Program to Meet the Goal for the
Site 303 ESEE. The two nearby sites are sand and gravel sites, with Site 304 inventoried with
225,000 cubic yards of material and Site 305/306 inventoried with 150,000 cubic yards of
material. Site 304 is located within a half -mile of the Tumalo Rim subdivision and within a half -
mile of Tumalo State Park and across the road from the Deschutes River. Site 305/306 borders
the Tumalo Rim subdivision on its west side. The Programs to Meet the Goal of these two sites
are essentially similar to the Program to Meet the Goal for Site 303 in that the decision in each
was a decision to Limit the Conflicting Uses under OAR 660- 016 - 0010(3) and each decision
relies on the regulations in the SM and SMIA zones of the zoning ordinance to implement the
ESEE decision, with some additional site - specific restrictions not present in the Program to Meet
the Goal for Site 303. The additional restrictions found in those two sites are related to the closer
proximity of those sites to the Tumalo Rim subdivision and to Tumalo State Park.
All this and the discussion above under the amount of material covered by the ESEE leads the
Board to conclude that applicant's proposal to mine the tuff in addition to the pumice is well
within the scope of the ESEE adopted by the Board and that no amendment to the ESEE is
required in order for the applicant to mine the pumice material.
c. Crushing. The opponents argued before the Hearings Officer and on appeal before the
Board that allowing crushing at the site is outside the scope of the ESEE. For the reasons set
forth in Section VI(1) below, the Board finds that crushing is included in the ESEE's allowance
of "processing" in the ESEE's Program to Meet the Goal and is therefore allowed. The Board
finds that the fact that crushing has not occurred at the site in over 25 years does not negate the
fact that, properly interpreted, the ESEE allows crushing to occur at the site, provided the
conditional use criteria of DCC 18.52.140 are satisfied.
d. Other ESEE Limitations. The opponents argue that various findings in the ESEE are
applicable to the applicant's proposal by virtue of certain provisions in the DCC Chapter 18.52
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site plan regulations, namely DCC 18.52.020, 18.52.080(E), 18.52.100 and 18.52.110(P). In
particular, the opponents claim that these provisions allow the County to apply additional,
unspecified limitations related to visual impacts and reclamation, traffic impacts, and air and
water quality issues on mining proposals other than the specific setbacks, standards and
conditions set forth in DCC Chapter 18.52. For the reasons set forth below, the Board finds that
such a reading gives too expansive a reading of the role of the ESEE in the mining permitting
process.
The applicant argued in its final submittal on appeal that the references to the ESEE in the
permitting standards of DCC Chapter 18.52 are limited to implementation of the specific
requirements of the Program to Meet the Goal set forth at Paragraph 23 of the ESEE or to those
instances in which there is a conflict between a specific provision in the site plan approval
criteria and a specific requirement of the Program to Meet the Goal. To support its argument, the
applicant referenced the findings in Paragraphs 24 -28 of the ESEE and OAR 660- 016 - 0010(3),
which provides that under Goal 5 conflicts must be resolved with rules that are "specific enough
so that affected property owners are able to determine what uses and activities are allowed, not
allowed, or allowed conditionally and under clear and objective standards."
The Board finds from the arguments of opponents and the applicant the following additional
areas other than those described above, are where there is disagreement between the parties on
how the ESEE is to be used: (1) Use of the ESEE's description of noise and dust sensitive uses
to define the scope of such uses in regulating setbacks and visual protection measures; (2) use of
the general description of truck traffic impacts in the ESEE conflicts and ESEE consequence
analysis as a basis for imposing unspecified limits on truck traffic; (3) use of the ESEE to define
"processing" instead of the definition in the zoning ordinance; (4) use of the ESEE description of
impacts to require compliance with air quality standards in addition to those required by DCC
18.52.110(C) or to require that dust be added to the list of uses to be protected by visual
screening; and (5) use of the description in the ESEE of scenic waterway impacts to suggest that
additional protection of the scenic waterway is warranted.
For the reasons set forth below, the Board agrees with the applicant that it is only the restrictions
or allowances expressed in the ESEE's Program to Meet the Goal that are applicable to mining
permitting decisions under DCC Chapter 18.52. The Board is not free, as various opponents'
arguments suggest, to take the somewhat generic references to impacts from the conflicts
analysis and discussion of ESEE consequences and to apply such discussions in some undefined
fashion as some kind of approval criterion for issuing a surface mining permit.
The text and context provided by DCC 18.52.020 and DCC 18.52.100, aided by the requirements
of OAR 660- 016 - 0010(3), offer support for the Board's interpretation. DCC 18.52.020 instructs
that it is the specific "setbacks, operations standards and conditions" of the ESEE that apply to a
specific permitting decision, but only to the extent that those "setbacks, operation standards and
conditions" are not expressly provided for in the implementing provisions of DCC Chapter
18.52.
As to the first point, the Board finds that the specific "setbacks, operations standards and
conditions" of the ESEE referenced in DCC 18.52.020 are those restrictions or allowances that
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are expressed in the ESEE's Program to Meet the Goal. The Program to Meet the Goal is the
only definitive statement in the ESEE as to how certain impacts identified in the ESEE are
addressed and resolved by the ESEE and how such impacts are to be addressed in the
implementation of the ESEE decision. Such a reading is confirmed by other provisions of DCC
Chapter 18.52 that refer to the ESEE and by the findings supporting adoption of the ESEEs.
DCC 18.52.100 speaks to fulfilling "the requirements" of the ESEE, which the Board finds can
only refer to the kind of specific limitation or allowances stated in the ESEE's Program to Meet
the Goal and not in a general discussion of conflicts and ESEE consequences found in the body
of the ESEE. Under OAR 660 -016 -0010, the Program to Meet the Goal is what reflects the
Board's decision whether to allow mining or not and under what specific clear and objective
conditions. The specific references in DCC 18.52.110(J) (allowance of drilling and blasting),
DCC 18.52.110(L) (wildlife restrictions), 18.52.110(M) (mining within 100 feet of riparian
areas) and DCC 18.52.140(A) (allowance of crushing) all refer to specific decisions made on a
site - specific basis only in the ESEE's Program to Meet the Goal. When there is a restriction or
allowance in the ESEE's Program to Meet the Goal that is either more restrictive than that found
in the implementing site plan regulations or that is not included in the specific "setbacks,
standards and conditions" of the implementing ordinance (such as the limitations on mining
duration in Site 305/3068 and the access restrictions of Site 3049), then those specific ESEE
restrictions or allowance are applied directly to the permitting decision per DCC 18.52.020.
The opponents appear to read the DCC 18.52.100 and DCC 18.52.110(P) references to making
permitting decisions in "conformance with the ESEE" and addressing and resolving all impacts
of mining activities identified in the ESEE broadly as license to require a renewed analysis of the
conflicts or a resolution of conflicts in ways other than those provided for in the ESEE's Program
to Meet the Goal and the implementing site plan regulations. The Board rejects that approach as
inconsistent with the provisions of Goal 5 and OAR 660 -016- 0010(3), which requires the ESEE
to make a decision amongst three alternatives and for implementing mechanisms "to 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." The broad reading asserted by the opponents would require the Board to re- examine
all conflicts identified in the ESEE and would negate the decision - making already made by the
Board in deciding and adopting the ESEE and its implementing site plan regulations.
e. Noise and Dust Sensitive Uses. In her decision, and on reconsideration, the Hearings
Officer used an expansive definition in combination with DCC 18.52.020 to allow noise or dust
sensitive uses to include not just the area around the noise or dust sensitive structure, but other
portions of the property away from the residence or structure, such as fields or driveways. In
light of and consistent with the Board's determination that the role of the ESEE in the permitting
process is defined and limited by the Program to Meet the Goal and the ESEE's description of
how that program is to be implemented in Paragraphs 24 — 28 of the ESEE, the Board finds that
the Hearings Officer's reliance in her decision and in her decision on reconsideration on what
she viewed as an expansive description of noise- sensitive and dust - sensitive uses in the body of
8 Found at Paragraph 23(h) of the ESEE for Site 305/306.
9 Found at Paragraph 23(d) of the ESEE for Site 304.
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the ESEE was erroneous. The Board agrees with the applicant that the specific findings in
Paragraph 26 of the Site 303 ESEE and the references to noise or dust sensitive uses therein
contemplate that the definition of noise or dust sensitive use would be derived from the
definitions in the zoning ordinance.
2. Need for New ESEE
Finally, the opponents ask the Board to require a new ESEE before the applicant's site plan can
be approved because of changed circumstances and the passage of time since the adoption of the
ESEE for Site 303 in 1990. Those changed circumstances are alleged to include the increased
use of Tumalo State Park and Central Oregon's increasing reliance on a tourism -based economy,
the determination from the Source Water Assessment Report for the Tumalo Rim Water
Improvement District's wells that the groundwater source flows under Site 303, that the ESEE
does not address the Deschutes River Scenic Waterway and the discovery that silica can be
carcinogenic.
The fact that an ESEE may or may not have addressed a resource in the manner that particular
parties may have preferred, however, provides no basis to require a new ESEE. Additionally,
responding to a specific permit application does not allow the Board to reject an application if a
new ESEE is thought to be desirable. In fact, the Site 303 ESEE did consider impacts on the
Scenic Waterway and the implementing zoning ordinance restrictions do protect the visual
impacts of mining sites on scenic waterway segments to the extent required. See DCC
18.52.110(B)(3)(e).
The Board also finds that a new ESEE may not be of much assistance to the neighbors on such
issues. A new ESEE would require application of the Division 23 rules. Under the Division 23,
general scenic impacts are not amongst the conflicts that are recognized or regulated. OAR 660 -
023-180(4)(b). Scenic issues related to the Scenic Waterway would be subject to the same
narrow protection of the view from the river banks. OAR 660 - 023- 180(4)(b)(D) and DCC
18.52.110(B)(3)(e). With regard to the silica content of dust emissions, the air quality conflicts
would be subject to resolution by the same air quality rules as are applicable in this case. OAR
660 - 023- 180(4)(b)(A), (c) and OAR 660 - 023- 180(1)(g).
Thus, so long as what the applicant proposes is within the scope of the existing ESEE, the
applicant may proceed with the proposal under the current ESEE. As the Board finds elsewhere
in this decision, applicant's proposal does not exceed the scope of the ESEE
C. Scope of Noise - Sensitive and Dust - Sensitive Uses
The Hearings Officer found that noise - sensitive and dust - sensitive uses comprised, not just the
immediate area surrounding the dwellings or structures that define the use, but other areas of the
property, including fields and driveways far removed from the structures that define the use. The
Hearings Officer then used that definition to determine what setbacks under DCC 18.52.090(B)
and visual screening under DCC 18.52.110(B) would be appropriate. The Hearings Officer's
application of the standards in that fashion resulted in her determination that two of the
applicant's proposed processing sites could not meet the setbacks of DCC 18.52.090(B) or the
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conditional use requirements of DCC 18.52.140, and she denied approval of two of the
processing sites and required screening to protect the views from the driveway leading to the
Hoffman residences. At the same time, the Hearings Officer applied the more restrictive
definition of noise - sensitive use from the DEQ administrative rules as it related to measuring the
noise impacts of machinery on site, to determine compliance with DEQ noise control standards.
The applicant appealed the Hearings Officer's denial of the two processing sites. The opponents
appealed, as appeal item H, the Hearings Officer's failure to uniformly apply the definition of
noise - sensitive use to require noise measurements to be taken "anywhere on the property where
the pre -1990 houses are located."
As noted below, the Board finds that the Hearings Officer erred in supporting her determination
of the scope of noise and dust - sensitive uses with the descriptions of noise - sensitive uses from
the body of the ESEE. For the reasons set forth below, the Board finds that the appropriate
starting point for determining the scope of noise and dust - sensitive uses is the definitions for
these terms found in the zoning ordinance provisions that implement the ESEE's Program to
Meet the Goal.
1. Noise - Sensitive Uses
The Board finds from the testimony of staff that the County has consistently interpreted the term
"noise- sensitive use" to apply to just those portions of the property that include the structure that
defines the use and the area within 25 feet of the noise - sensitive use toward the noise source.
See OAR 340 - 035- 035(3)(b). In addition, the Board finds ample support in the text and context
of the provision itself. The Board agrees with the applicant's argument that the definition's
reference to an activity — sleeping — that customarily occurs and is commonly understood to
occur indoors and to require peace and quiet and the definition's reference to a series of other
uses — schools, churches, hospitals and public libraries — that are commonly understood to occur
within a structure and to require an absence of disturbing noises to protect the kinds of activities
— learning, praying, healing and reading -- supports an interpretation that the scope of the
definition of "noise- sensitive use" should refer to just the structure within which the use occurs.
Furthetiuore, the Board finds that the context of the term, as it is applied in both the SM zone
and the companion SMIA zone, indicates that the definition was contemplated to apply to the
area around the structure and not the entire property. Both zones refer to "setbacks" from noise -
sensitive and dust - sensitive uses. See, e.g., DCC 18.52.090(A)(3) and (D), DCC 18.56.070. The
Board finds that as used in the County's zoning ordinance, the term "setbacks" generally applies
to distances as measured from a structure. See, e.g., 18.04.030, definitions of "setback,"
"setback, front," "setback, rear," "setback, side," "setback, street side." The reference in DCC
18.52.090(D) to setbacks in relation applicable building code requirements also is evidence of an
intent that the setbacks contemplated in the code were to be measured from structures. Likewise,
the requirement that site plans for SMIA review include "the location" of the proposed noise -
sensitive use likewise seems to indicate that the Board had a single location in mind when
describing the extent of a noise - sensitive use. See DCC 18.56.100(A). Additionally, there is
some indication from the legislative history cited by the applicant and included in the record that
part of the Board's intent in adopting the Ordinance 91 -038 amendments to the definitions of
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"noise- sensitive" and "dust- sensitive" use was to ensure that the setbacks in the SMIA zones
were not overly restrictive.
The most explicit examples of this are found in the setbacks in the Surface Mining Impact Area
zone, which as the flip -side of the SM zone, regulates conflicting uses that could adversely
impact SM -zone mining sites. For example, DCC 18.56.070 restricts new noise or dust sensitive
uses from locating within 250 feet of the boundary of the SM zone. If the Hearings Officer's
interpretation were to be adopted, with driveways and open spaces such as gardens and fields
defining the outer limits of a noise - sensitive use, the practical result would be a 250 -foot "no-
man' s land" buffer area next to an SM -zoned property. That buffer area would effectively be off
limits for any use by the owner of the noise - sensitive use property that was in any way incidental
to residential use unless, pursuant to DCC 18.56.070(D), the mine operator granted consent for
such elements to come closer to the mine site.
Additionally, the Board notes that an expansive interpretation that would allow a "noise- sensitive
use" to be defined at its outer edges by "gardens, fields and driveways" would make the setbacks
of the SM and SMIA zones difficult and impractical to administer. With a structure defining the
area from which setbacks are to be measured, it is easy for a property owner or county planning
staff to determine from where setbacks should be measured. An example of such a difference
would be when the Hoffinans were granted approval under SMA -99 -28 to build a home on Tax
Lot 401 within 230 feet of the subject property. All parties at that time apparently believed the
setbacks of the SMIA zone referred to the dwelling and not some greater portion of the'property.
In that situation, the Hoffmans received the benefit of a tightly defined noise and dust - sensitive
use in the approval of the dwelling on Tax Lot 401.
With an expanded definition of noise - sensitive use, depending upon actual use patterns of the
property, planning staff and property owners are left to guess where to measure the setbacks
from. Furthermore, in some instances, for purposes of applying setbacks, it is necessary to
deteiuiine whether a noise - sensitive use was in existence as of July 12, 1990. If the use is
defined by the structure, it is easy to make such a determination because the County has records
of when structures were built. However, if the outer limits of a "noise- sensitive use" is defined
by how the more remote, non - structural portions of a property are actually used, documenting
such use and the date such use started would be very difficult.
In addition to relying on portions of the ESEE to support her interpretation, the Hearings Officer
relied upon the reference in the definition of "noise- sensitive use" to real property. The Board
finds that the Hearing's Officer's reference to the entire property is undercut by the express
exclusion of garages and workshops from the definition. In addition, the Board finds that by
focusing on just that portion of the definition, she ignored the balance of the definition that gives
emphasis to uses that involve indoor activities that require peace and quiet. On reconsideration,
the Hearings Officer found the applicant's arguments to be "plausible" but ultimately decided
against the applicant on this issue.
In light of the considerations set forth above, however, the Board finds the applicant's
interpretation and the long - standing interpretation of the County to be the better interpretation of
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the two and hereby determines to overturn the Hearings Officer's interpretation. For purposes of
applying the standards of DCC Chapter 18.52 and to be consistent with the DEQ regulations
from which the definition of "noise- sensitive use" is derived, the Board finds that the extent of a
noise or dust sensitive use is the structure, excluding any garage or outbuilding with the 25 -foot
noise measure location serving as a reference point for measuring noise impacts in applying
DCC 18.52.110(H)
2. Dust - Sensitive Uses
The Board finds that, with regard to the scope of a "dust- sensitive use," the considerations are
similar to those that inform the Board on how to interpret "noise- sensitive use." The Board notes
that the definition is almost identical to the definition of "noise- sensitive use" and likely was
intended to parallel the noise - sensitive use definition. This is evident from the fact that, in
almost every case in DCC Chapters 18.52 and 18.56 where "noise- sensitive uses" is referred to
there is a parallel reference to "dust- sensitive uses," as if they are to be treated as one and the
same. Additionally, the same amendments excluding garages and workshops were made to both
definitions simultaneously in Ordinance 91-038.
The Board notes that the language of the "dust- sensitive use" definition is slightly different than
the language used in the "noise- sensitive use" definition, with no reference to property used for
sleeping. Instead, the definition says it is "real property normally used as a residence ..." In
addition, the context does not include the DEQ noise control rules of OAR 340 - 035- 035(3)(c)
requiring measurements to be made at a point within 25 feet of the structure that defines the use.
The Board finds, however, that the same considerations that lead it to interpret the scope of a
"noise- sensitive use" as relating to the dwelling or structure itself are present here.
Furthermore, in the one instance in which the term is used by itself in DCC 18.52.110(A)(1)(b),
without being coupled with noise - sensitive use, DCC 18.52.110(A)(1)(b), the context clearly
evidences an intent that the reference to "dust- sensitive use" is to the structure associated with
the use and not to some larger portion of the property. In that case, the code states that "all roads
used for mining are paved and will be adequately maintained at all points within 250 feet of a
dwelling or other dust - sensitive uses existing on the effective date of Ordinance No. 90- 014."
Thus, the Board finds that the two terms must be interpreted the same if the code is to be
coherent in its application. Otherwise, a more tightly drawn definition of noise - sensitive use is
negated by a more expansively defined dust - sensitive use.
The Board struggled with whether dust - sensitive uses should include portions of the grounds as
well as the structure, given that residents may be more likely to be impacted in their daily lives
by dust outside their homes. From reviewing the air quality standards, however, the Board
realizes that the scope of a dust - sensitive use does not come into play in determining whether
there is a violation of air quality standards because, unlike the noise control standards, there is
simply no reference to "dust- sensitive uses" in the air quality standards. Application of the air
quality standards operates independent of how a dust - sensitive use is defined.
D. Visual Impacts — Applicability and Scope of Screening Requirements
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In her decision, the Hearings Officer interpreted the screening requirements of DCC
18.52.110(B) to require the installation of supplied screening to screen the pre -1990 Hoffinan
dwelling from the pit. Hearings Officer Decision, Page 20. This finding was implemented by
Condition No. 12 of her decision. In addition, she interpreted the screening requirements to
require that the headwall of the pit be screened from the view of the "upper trails" of the Tumalo
State Park. Hearings Officer Decision, Page 20. This finding was implemented by Condition
No. 17 of her decision. On reconsideration, the Hearings Officer declined to alter her
interpretation or analysis of the facts. Hearings Officer Decision on Reconsideration, Page 10.
The applicant appealed the Hearings Officer's decision, claiming that the Hearings Officer erred
in requiring an absolute protection standard under DCC 18.52.110(B)(2) and (5) for screening of
visual impacts and claiming that as to the views of the headwall of the pit from Tumalo State
Park, the Hearings Officer misinterpreted the code when she failed to apply the topographical
exception allowed under DCC 18.52.110(B)(6)(a). The Hoffinans also appealed this aspect of
the Hearings Officer's decision on two issues. In Appeal Item I, they argued that the Hearing
Officer should have required, as part of her Condition 12, an amendment to the site plan in order
to show the exact screening required. In Appeal Item E, they argued that the Condition 17
requirement to revise the mining boundaries to avoid visual impacts of the headwall on the trails
in Tumalo State Park should have allowed for public comment.
1. Screening For Pre -1990 Hoffman Residence
The Board finds that it is unclear from the Hearings Officer's decision to what extent, if any, she
was attempting to protect visual impacts on the pre -1990 Hoffman dwelling or exactly from
which aspect of the applicant's operations she was attempting to protect the pre -1990 Hoffman
property. In addition, the finding does not discuss whether the Hearings Officer was attempting
to protect the pre -1990 Hoffman residence from views of just the processing locations or whether
she believed it was necessary to protect the property from views of the headwall as well.
The Board finds that the pre -1990 Hoffman residence is located very near the Deschutes River in
a depression, with significant vegetation and a ridge between it and the applicant's mine site.
Even if portions of the headwall were visible from the location of the pre -1990 Hoffman
residence, those portions of the applicant's site could not effectively be screened from view by
the Hoffman's due to the topography of the area.
The Board found above that only a dwelling itself (minus any associated garage or workshop)
plus 25 feet may be considered to be the noise or dust sensitive use. Under this scenario, the pre -
1990 Hoffman dwelling is entirely screened from the mine site, except for some possible views
of the headwall.
Additionally, the Board finds that due to topographical considerations, namely the location of the
intervening ridge on the Hoffinan property, there is no possibility of screening any views there
might be of the headwall from the pre -1990 Hoffman residence. Staff testified and the Board
finds that the ridge is undulating and rocky and any vegetation planted to screen the headwall
would not likely survive and, thus, be a futile attempt at further screening the mining site and the
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headwall. Therefore, the Board finds that any views of the headwall from the pre -1990 Hoffinan
residence would be subject to the exception of DCC 18.52.110(B)(6).
This finding, however, is based solely on the intervening ridge. The Board does not find, as the
applicant argues, that DCC 18.52.110(B)(6)(b) can be interpreted to mean man -made
topography. That subsection must be read in conjunction with (a) such that the topography
referred to in (b) is linked to the "natural" topography in (a). To find otherwise would lead to the
absurd situation of allowing a property owner to severely alter a property then claim an
exemption from the very provision designed to protect the surrounding uses from the impacts of
that alteration.
2. Screening, from Tumalo State Park
The Hearings Officer required the headwall of applicant's mine to be protected from the upper
trails of Tumalo State Park by limiting mining so that no portion of the mine could be seen from
the upper trails of the State Park. She made the basis for her decision clear in her Decision on
Reconsideration, in which she invoked authority under Condition 23(b) of the ESEE and DCC
18.52.100(B). In essence, she found that ESEE Condition 23(b) and DCC 18.52.100(B) gave her
the authority to so condition the approval to override the exception allowed under DCC
18.52.110(B)(6)(b). She also interpreted the topographical exception of DCC
18.52.110(B)(6)(b) to not apply to address man -made topographical changes, such as the
creation of a headwall during mining operations.
The Board finds that the Hearings Officer's decision presents interpretative issues as follows:
(1) what effect the ESEE Condition 23(b) and DCC 18.52.100 have as they relate to the
screening provisions of DCC 18.52.110(B), (2) what the scope of protection is of the screening
provisions of DCC 18.52.110(B) and (3) what the scope and applicability of the exception to the
screening standard of DCC 18.52.110(B)(6)(b) is.
The first issue implicates the relationship between the ESEE, specifically the ESEE conditions in
the Program to Meet the Goal, and the setbacks and operational standards of DCC Chapter 18.52.
The Board already addressed this relationship above in response to numerous arguments of the
opponents. Application of DCC 18.52.020 and DCC 18.52.110(P) requires that Board to
determine whether there is anything about Condition (b) of the Program to Meet the Goal that
requires that provision to supplant any visual protection standards set forth in the screening
standards of the zoning ordinance.
The Board finds that this question is answered by the findings of the ESEE describing how the
ESEE's Program to Meet the Goal is to be implemented. As noted previously by the Board, the
ESEE includes a finding at Paragraph 24 that explicitly states that all natural resources, including
scenic views, are to be also addressed through the screening and buffering limitations of the SM
zone provisions. The Board finds that the ESEE condition and the visual screening provisions of
the SM zone site plan regulations were in essence harmonized by the Paragraph 24 finding that
requires the condition to be implemented through the DCC Chapter 18.52 visual screening
provisions. In any event, the Board finds that nothing in Condition (b) of the Program to Meet
the Goal establishes a measurable screening performance standard. There is no conflict between
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it and the screening standards of the site plan regulations and the visual protection provisions of
the site plan regulations control.
As to the second issue, the Board agrees with the applicant that the performance standard of
protection set forth in the language of DCC 18.52.110(B) (2) is not absolute. Starting with the
text and context of the ordinance provision, the Board finds that where the site is not obscured
from surrounding protected uses by existing natural screening, the performance standard is set
forth in DCC 18.52.110(B)(2). Read together with DCC 18.52.110(B)(5), the Board finds that
provision requires use of supplied screening only to the extent set forth in the supplied screening
standard. Supplied vegetative screening is not required to exceed a density of six feet on center
or a height of six feet at the commencement of mining. Therefore, the screening requirement can
be discharged by supplying screening that is initially six feet in height, regardless of whether it
will ultimately be effective in actually screening an excavated area from view. Read in this light,
the Board finds that such a performance standard cannot reasonably be found to constitute an
absolute "no visual impact" screening standard.
Turning to the last issue, the Hearings Officer interpreted the exception in 18.52.110(B)(6)(b) as
not applying where the topography at issue is a manmade excavation. The Board agrees with the
Hearings Officer's interpretation in this regard.
The language of the DCC 18.52.110(B)(6)(b) exception reads as follows:
6. Exceptions. Supplied screening shall not be required when and to the extent
that any of the, following circumstances occur:
(a) The natural topography of the site offers sufficient screening to meet the
performance standard in DCC 18.52.110(B)(2).
(b) Supplied screening cannot meet the performance standard in DCC
18.52.110(B)(2) due to topography.
The Board finds that the mention of "topography" in sections (a) and (b) above indicates that it is
to apply to situations involving only natural topographical conditions. The Board finds that the
omission of the word "natural" in subsection (b) was likely an oversight. To find otherwise
would allow any operator of a surface mine to be able to forego any screening merely by altering
the topography with mining activities then claim a topographical impediment. Additionally,
when this is applied a mining site prior to the initiation of any excavating activities, it is unlikely
any man -made topographical impediments would exist.
As the Board previously found, however, sufficient natural topographical impediments exist
along the northern ridge such that requiring additional supplied screening would be futile.
Therefore, the issue of natural versus man -made is _irrelevant for this case.
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E. Traffic Issues
On appeal, the Hoffmans raised issues related to regulation of off -site traffic impacts of the
proposed mining site in Notice of Appeal items M, Q(a) and Q(b). In item M, the Hoffmans
argue that the mine's access to Johnson Road has inadequate sight distance. In appeal item Q(a),
the Hoffinans argue that the Hearings Officer did not address Applicant's failure to provide a
traffic impact analysis related to the intersection at Highway 20, Cook Avenue and O.B. Riley
Road. In appeal item Q(b) the Hoffinans argue that the Hearings Officer failed to respond to the
increase in truck traffic and its noise impacts.
With respect to Hoffinans' argument on Issue Q(b), the Hearings Officer did address the issue of
the noise impacts of increased truck traffic in her decision at Page 23 of her decision and
correctly found that pursuant to OAR 340 - 035- 0035(4) that sounds created by the tires or motor
used to propel any road vehicle complying with standards for road vehicles are not included in
noise determining noise impacts. See further discussion of this issue under the Board's
discussion of compliance with DCC 18.52.110(A) below.
The Board finds that the first two issues go beyond what is required in the implementing site
plan regulations and any potentially overriding the Program to Meet the Goal. The Program to
Meet the Goal did not address traffic issues in any way and therefore, there is no basis under
DCC 18.52.100 or 18.52.110(P), as interpreted above, to import off -site traffic considerations as
additional approval requirements.
With respect to item M, there is no approval criterion under the Chapter 18.52 site plan criteria
that requires the applicant to prove that it has adequate access to Johnson Road. The only criteria
in the DCC Chapter 18.52.110 addressing access roads and public roads is DCC 18.52.110(A).
DCC 18.52.110(A) (1) speaks only to the adequacy of access roads on site. 18.52.110(A)(2)
speaks only to mitigating the impacts of haul trucks on the physical condition of the roadways
(such as the condition of the pavement) and not issues such as sight distance. With respect to the
Hoffinans' argument on Issue Q(a), again, there is no provision of the site plan approval criteria
that addresses off -site traffic impact issues. The County's traffic impact study requirement (at
DCC 17.16.115) for land divisions does not apply to approval of site plans for surface mines and
there is nothing in Chapter 18.52 or in the ESEE's Program to Meet the Goal to make that
requirement applicable. In fact, in its findings supporting establishment of the half -mile impact
area in Ordinance 90 -025, the Board declined to extend the impact area beyond half -mile on the
basis of traffic impacts, stating that the extent of such off -site impacts were too hard to
determine. Ordinance 90 -025, Finding 30. In order to add the traffic impact study requirement
of DCC 17.16.115, the ESEE would have to be amended to include such a restriction in the
Program to Meet the Goal.
F. Reclamation Issues
The opponents have argued both before the Hearings Officer and on appeal that with respect to
reclamation, that the applicant: (1) failed to submit information to the County concerning
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reclamation pursuant to DCC 18.52.080(B) as part of its application consistent with a proposed
plan of reclamation and (2) failed to propose or plan for required incremental reclamation.
The Hearings Officer found in her decision that any failure of the applicant to submit
information relating to reclamation as part of the application is not material to approval of the
applicant's application unless there is a standard of approval for which satisfaction cannot be
shown without the requested information. The Hearings Officer found that the entire site was
subject to DOGAMI jurisdiction and that under DCC 18.52.130 and under state law, County had
no authority to regulate reclamation and by extension that any failure by applicant to submit
required information relating to reclamation was of no consequence. As to the second issue, the
Hearings Officer found that the entire site was subject to DOGAMI jurisdiction and that under
DCC 18.52.130 and under state law jurisdiction for regulating reclamation issue lies with
DOGAMI.
The Board agrees with the Hearings Officer that whether or not an applicant submits information
under DCC 18.52.080(C) is not an indication of whether an application should be denied. The
relevant issue is whether at the end of the day the applicant provided sufficient information
relevant to actual approval criteria that findings can be made that the approval criteria have been
met. Opponents assert that approval standards relevant to this issue include DCC 18.52.110(K),
DCC 18.52.130(B) and condition (e) from the Program to Meet the Goal.
On the substantive issue of whether the County can regulate reclamation issues, the Board agrees
with the Hearings Officer and finds that under state law, DOGAMI has exclusive authority to
review and approve reclamation site plans where the site is not subject to an exemption. See
ORS 517.780. DCC 18.52.130(A) reflects state law in providing that, when a site reclamation
plan is required by DOGAMI, the site reclamation plan is to be approved by DOGAMI, not the
County. The DOGAMI site reclamation approval process is a separate process entirely apart
from the County land use permit process and entirely under the jurisdiction of DOGAMI. Under
this division of regulatory responsibilities, the County's only authority over reclamation
activities is to preclude issuance of a use pen-nit to allow mining to proceed until an applicant
received DOGAMI approval of a site reclamation plan. See DCC 18.52.170.
In this case, the Board finds there is no question that the applicant's site is subject to DOGAMI
jurisdiction. The record shows that the site has an existing DOGAMI- approved reclamation plan
in place for the mining activities approved under SP -95 -010. A copy of that approved plan and
correspondence from DOGAMI indicate that applicant is in compliance with that existing
approved plan.
The record includes DOGAMI correspondence indicating that a 3 -acre portion of the property
was mined prior to 1972 and is potentially exempt from DOGAMI jurisdiction. The Board finds
that that area is on the eastern portion of the property and is likely outside of the proposed
mining boundary. Even if the exempted area was partially included within the boundaries of the
proposed mining site, the Board agrees with the Hearings Officer that there is no practical way of
segmenting what is otherwise a unified site into a DOGAMI sphere and a County sphere. It is
clear from DOGAMI's compliance letter of May 6, 2008 that DOGAMI believes it can review
the entire site for compliance.
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None of the citations to code provisions provided by the Hoffmans' attorney on appeal gives the
County authority to regulate reclamation issues in the face of pre - eminent state authority. By its
terms, DCC 18.52.130(B) applies only in instances in which a mining reclamation plan is not
required by DOGAMI. As noted above, this site is subject to DOGAMI jurisdiction. DCC
18.52.110(K) provides an acreage limitation for areas where actual excavation is taking place,
but it does not address the substance of reclamation issues. Finally, the opponents cite to
Condition (e) from the ESEE's Program to Meet the Goal, which states that "excavation shall be
limited to five acres with ongoing incremental reclamation (subject to DOGAMI review and
approval) ". Condition (e) provides no additional support for the opponents' position because it
expressly makes review of any ongoing incremental reclamation subject to DOGAMI review and
approval. It is clear from DCC 18.52.130 that any review and approval of incremental
reclamation would be up to DOGAMI to review and approve through a separate process before
DOGAMI.
It might be possible for the County to require as a condition of approval that no use permit can
be issued under DCC 18.52.130 unless the applicant were to submit a DOGAMI- approved
reclamation plan, including ongoing incremental reclamation. However, the Board finds such a
requirement would intrude upon DOGAMI prerogatives to determine what reclamation
techniques are appropriate and when they should be applied. In this case, DOGAMI already
signaled, by its letter of May 6, 2008, that it does not believe the concurrent reclamation would
be practical.
Finally, the Board recognizes that the concept of "ongoing incremental reclamation" as
expressed in Condition (e) presents no standard for it to judge when such activities should begin,
when an area was completely mined that would allow for such activities to begin or when a
mined out area is needed as a staging area for the next mining area and can't be reclaimed. The
Board finds that the County has limited competence in reclamation matters and is not sure that it
could even describe what it might be looking for in a plan that proposes "ongoing incremental
reclamation." The Board notes that DOGAMI's reclamation plan regulations, found at OAR 632
Division 30 do not mention the concept of "ongoing incremental reclamation ". Given all this,
the Board finds it has no jurisdiction to address reclamation issues. If during the course of a
mining operation, issues arise as to whether the 5 -acre excavation limit is exceeded, these issues
will be addressed as an enforcement matter on a case -by -case basis.
G. Site as Landfill
The opponents argued below and on appeal to the Board (Appeal Item Q(d)) that the subject site
should be considered to be a landfill due to the applicant's importation of waste rock and
vegetative debris onto the mine site. This would require the applicant to obtain a land use permit
as a landfill. On appeal, the Hoffmans argued that the Hearings Officer failed to address this
issue in her decision. The Board finds in fact that the Hearing Officer rejected the opponents'
argument that the site was operating as a landfill in footnote 1 of her decision.
The Board finds the applicant did bring waste rock onto the site and that such is proposed to be
used for reclamation purposes. The Board finds that the applicant also brought some waste
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vegetation on site, but that that vegetation was disposed of and that the applicant does not intend
to bring any more waste vegetation on site. The waste vegetation remains on site is the
vegetation that was removed by applicant's predecessor when it stripped the surface vegetation
from the area of the slots when the initial excavation activities to open up the existing slot
occurred. Additionally, the Board finds that the waste rock that was brought onto the site
qualifies as clean fill and that, under OAR 340 - 093 -0050, fill that qualifies as clean fill does not
require any permit from DEQ as a landfill and consequently, no land use permit for a landfill is
required either.
V. SITE PLAN
A. CHAPTER 18.52, SURFACE MINING (SM) ZONE
1. Section 18.52.020, Application of ordinance.
Except as provided in section 18.52.160, the setbacks, operation standards and
conditions set forth in sections 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 this title, the site- specific ESEE
analysis shall control.
FINDING: The proposed site plan and conditional use applications are subject to DCC
18.52.090, 18.52.110 and 18.52.140. While the Hearings Officer found that some of the
operating standards and conditions had been modified somewhat by the ESEE analysis for the
site, the Board finds that in the absence of any additional requirements in the Program to Meet
the Goal in the ESEE for Site 303, there is no basis in this case to modify the operating standards
and conditions, except as noted elsewhere in this decision. The Board finds that other than the
authorization of processing, the Program to Meet the Goal does not provide for any additional
requirements that are not reflected in the zoning ordinance's implementing site plan regulations.
2. Section 18.52.040, Uses permitted outright subject to site plan review.
The .following uses are permitted outright subject to site plan review as provided in
DCC 18.52.040:
A. Extraction of minerals.
B. Stockpiling and storage of minerals
C. Screening, washing and sizing of minerals.
D. Sale of minerals, and mineral products extracted and produced on the parcel or
contiguous parcels in the same ownership.
E. Buildings, structures, apparatus, equipment and appurtenances necessary for
the above uses to be carried on.
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FINDING: The applicant proposes to conduct activities or place structures listed in DCC
18.52.040(A) through (E). Extraction of pumice, tuff and incidental aggregate are proposed as
part of the expanded surface mining operation. The stockpiling and storage of these materials
are proposed for the site. In addition, screening and sizing of pumice extracted from the site is
proposed to produce a variety of pumice products for use in the horticultural and construction
industries. The applicant also proposes to process some of the tuff by screening it for possible
use of pumice inclusions for use as horticultural products and to wash the Tumalo tuff for
possible use as a footing material for horse arenas. The applicant proposes to sell products
extracted from and produced on site to wholesale industrial and commercial customers, some of
whom will travel to the site to load and transport the product. The site plan includes a truck scale,
and an approximately 100- square foot scale building to weigh trucks. Driveways to
accommodate the scale and scale building, and the surface mining at the site are proposed. All
of these uses are permitted, subject to site plan review.
The Board finds the buildings, structures, apparatus, equipment and appurtenances proposed to
be used by the applicant are necessary for the extractive uses to be carried out. The Board finds
that such features include the equipment for excavating, storage and transport of mineral
resources on and off -site; screening equipment and associated conveyor belts; a proposed wash
plant; the water system, consisting of the well, waterline and water tank; one or more water
trucks; the weather station; a portable storage unit and a portable scale and an associated scale
house.
With respect to apparatus, equipment and appurtenances, the Board finds that equipment such as
excavators and front -end loaders and haul trucks proposed to be used by the applicant for
excavation and on -site transport of the material is necessary in order to excavate and transport
overburden and mined pumice and tuff onsite, to process and store the material on site to and
transport the material off -site. In addition, the Board finds that a water truck is required in order
to provide dust abatement. The Board finds that the crushing and screening equipment is needed
to size the pumice into sizes of product for the specific pumice products produced by the
applicant. In addition, the Board finds that, to the extent applicant develops a market for sand
footing materials for horse arenas, the washer is required to wash the tuff to separate the finer
sand grains from more coarse tuff materials.
The Board finds the well, water pipeline and water tank are necessary to provide a source of and
a reservoir for storage of water to be used in dust abatement and processing activities. The
proposed scale for weighing trucks is required so the applicant can determine how much material
is being sold to customers and in order for the applicant and customers transporting materials
purchased at the site to determine that their loads are within highway load limits. With respect to
buildings and structures, the Board finds the only buildings or structures proposed is the
proposed scale house, which is needed to house equipment related to the personnel operating the
scale. Finally, the weather station shown on the site plan is required in order for atmospheric
modeling as an element of applicant's dust abatement program.
The opponents argued that applicant's use constitutes an unper pitted landfill by virtue of
applicant's importation of waste rock and vegetative materials. For the reasons set forth above,
the Board finds there is no merit to the opponents' arguments in this regard.
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3. Section 18.52.060, Dimensional standards.
In the SM Zone, no existing parcel shall be reduced in size and no additional parcels
shall be created by partition, subdivision or otherwise.
FINDING: The applicant is not proposing to divide the subject property as part of the submitted
applications. Accordingly, the Board finds that DCC 18.52.060 does not apply.
4. Section 18.52.070, Site plan review.
Site plan review and final approval of a site plan shall be required before the
commencement of any use which requires site plan review under DCC 18.52.040 and
18.52.050(B), and before any expansion of a preexisting or nonconforming site under
DCC 18.52.160.
FINDING: The Board finds the applicant filed a modified site plan application, as well as a
conditional use application, as required above for the uses proposed. As set forth above and
below in response to each applicable provision, the uses fall within the list of activities set out in
DCC 18.52.040 and 18.52.050(B).
Before the Hearings Officer and on appeal, the opponents complained that the site plan was not
exact enough to demonstrate compliance with the approval criteria. In particular, the Hoffmans'
attorney argued that it was necessary for the applicant to demonstrate where each successive
"slot" was going to be located as the mining on the site progressed, which areas were subject to
reclamation and which were not, where the equipment was going to be stored at different stages
of the development of the mine, etc. The Board finds that a mining site plan is by nature
transitional: The areas where mining is going to occur change as mining progresses; the areas
where equipment is to be stored when not in operation changes location as the mined areas at the
site change as well as does the area where processing occurs. It is not practical to pin these areas
down precisely over the duration of the mining operation and not necessary if compliance can be
demonstrated through establishing certain outside parameters within which compliance can be
demonstrated or can be shown to be feasible, as conditioned.
In this case, the Board finds that there are parameters that can be and are set to ensure
compliance. First, the boundary of the area to be mined was established. This is a definite area
and allows the Board to condition approval to ensure that existing topography and vegetation
outside the mining boundary are preserved, to ensure that visual screening and drainage
assumptions are or can be met and under what conditions. Proposed mining setbacks from the
property boundary have been established, which guarantees that general setbacks described in
DCC 19.52.090 from any pre -1990 noise or dust- sensitive uses are met. Setbacks from
surrounding pre -1990 noise or dust - sensitive uses have been described and shown on the site
plan, demonstrating that mineral and equipment storage and mineral processing activities either
qualify for an exception to the setback or can meet the quarter -mile setbacks. The processing
sites have been identified and shown to fall outside the quarter -mile setbacks and based upon the
identified locations and the types of machinery involved meet the applicable DEQ noise control
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standards. The Board finds that the site plan is sufficiently detailed to allow for a determination
of whether compliance was or can be demonstrated.
5. Section 18.52.080, Site plan application.
The applicant shall submit the following information for site plan review and approval:
A. An application in a format established by the County and satisfying all
requirements of Title 22, the Deschutes County Developmental Procedures
Ordinance.
B. All information required for a site reclamation plan by DOGAMI.
C. A map or diagram showing all minimum use setbacks required in DCC
18.52.090 are met.
D. A description of how all operation standards set forth in DCC 18.52.110 are
met
E. A description of all potential impacts of the mining activities identified by the
ESEE analysis for the specific site and how those impacts are addressed.
FINDING: The Board finds that the applicant submitted site plan, conditional use permit and
modification applications on the prescribed Planning Division forms. The applicant also
submitted a copy of the DOGAMI reclamation plan as exhibit C to the original applications. The
applicant submitted a site plan drawing (revised drawing on March 20, 2008, Exhibit 1 of March
20, 2008 submittal) that shows the locations of the proposed new truck scale and scale building,
as well as the driveways, excavation areas, and stockpile areas. Minimum use setbacks of DCC
18.52.090 were addressed in an April 15, 2008 site plan submittal showing quarter -mile arcs
from the nearest noise and dust - sensitive uses in existence on the effective date of Ordinance 09-
014. The applicant submitted a revised burden of proof statement addressing DCC 18.52.110.
Subsection E above is essentially the same as DCC 18.52.110(P), which the applicant addressed
on page 29 of the revised burden of proof, and in an email to staff.
Opponents argue that this section is not satisfied because the submittal did not include all the
information required for a DOGAMI reclamation plan and did not provide information in
response to subsection 18.52.080(E). The Hearings Officer found that DCC 18.52.080 is an
informational standard and that the issue is whether the actual approval criteria of DCC 18.52
are adequately addressed by the evidence submitted by the applicant. The Board agrees with the
Hearings Officer's conclusion. So long as the applicant can demonstrate compliance with the
substantive approval standards, whether or not particular application information requirements
were met is not material.
On appeal, the Hoffinans argued at length about the inadequacy of the information supplied as
applicant's DOGAMI reclamation plan. Again, the Board finds that whether or not information
submitted with an application is viewed as sufficient is to be judged with reference to the
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approval criteria. In this case, where DOGAMI has jurisdiction over the reclamation plan, the
Board finds that the applicant's reclamation plan is not relevant to any approval standard and that
DOGAMI has exclusive authority to approve applicant's reclamation plan.
6. Section 18.52.090. Minimum use setbacks.
A. Except as otherwise provided in DCC 18.52.090, all surface mining activities
and uses, including structures, shall be located and conducted at least 250 feet
from a noise- sensitive or dust - sensitive use or structure. Exceptions to this
standard shall be allowed, for the. following:
1. Access roads approved as part of site plan review.
2. Dwellings located on the parcel on which the surface mining is to occur,
including replacements or expansions thereof
3. Pursuant to a written agreement for a lesser setback made between the
owner of the noise- sensitive or dust - sensitive use or structure located
within 250 feet of the proposed surface mining activity and the owner or
operator of the proposed surface mine. Such agreement shall be
notarized and recorded in the Deschutes County Book of Records and
shall run with the land. Such agreement shall be submitted and
considered at the time of site plan review or site plan modification.
FINDING: The Board finds only one dwelling exists within 250 feet of the subject property.
Consequently, that dwelling is the only dwelling that must be considered under this provision.
The dwelling in question is the post -1990 Hoffman dwelling located on Tax Lot 17 -12 -6C -401
immediately to the north of the applicant's mining property that was permitted in 1999 under
SMA- 99 -28.
It is not totally clear from the County's records how close this dwelling is to the common
property line between the mining site and the Hoffman property. The SMIA decision for the
dwelling indicated that the dwelling was to be 230 feet from this property line. If the dwelling is
230 feet from the property line, this location combined with the applicant's proposed 100 -foot
buffer zone around the mining area, results in the post -1990 Hoffman dwelling being located 330
feet from the mining operations. The evidence gives reason to believe that the post -1990
Hoffman dwelling may have been built as close as 170 feet from the common property line with
the applicant's property. The Board finds that under either scenario the required setback is met
because of the 100 -foot buffer proposed for the mining operation as part of the site plan. In
addition, prior to the approval of the dwelling on the property, the Hoffiiians signed an
agreement with the prior mining operator, Cascade Pumice, to allow the construction of their
dwelling within 250 feet of the common property line. The agreement is recorded in the
Deschutes County Book of Records. Under these circumstances, the Board finds that even if the
mining setbacks proposed by the applicant on its property were not adequate, the dwelling would
meet the requirements of the exception found in subsection A(3).
The Board agrees with the Hearings Officer that there does not appear to be new access roads
proposed for the site. In addition, there is no existing dwelling on the subject property.
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For all of the above reasons, the Board finds this standard is met.
B. Storage and processing of mineral and aggregate material, and storage of
operational equipment which creates noise and dust, shall not be allowed closer
than one - quarter mile from any noise or dust sensitive use or structure existing
on the effective of Ordinance No. 90 -014, unless applicant demonstrates that:.
1. Due to the parcel size, topography, existing vegetation or location of
conflicting uses or resources, there is no on -site location for the storage
and processing of material or storage of equipment which will have less
noise or dust impact; and
2. All noise control and air quality standards of DCC 18 can be met by the
proposed use for which the exception is requested.
FINDING: The Board finds that the following activities are subject to this standard: (1) storage
and processing of mineral and aggregate materials and (2) storage of operational equipment that
creates noise and dust.10 The Board finds that the only noise or dust - sensitive uses implicated by
this standard are the pre -1990 Hoffinan residence on Tax Lot 400, the Todd dwelling to the east,
the former Kemple residence to the south and the two closest Tumalo Rim subdivision
residences to the northwest. At the April 15, 2008 hearing, the applicant submitted a site plan
map showing five quarter -mile arcs, each one centered on one of the five identified dwellings.
The arcs are intended by the applicant to show where the applicable setbacks are from those
nearest post -1990 dwellings.
As an initial matter, the Board finds from its discussion and findings above regarding the scope
of noise - sensitive and dust - sensitive uses that the appropriate point to measure the quarter -mile
setbacks 25 feet from the edge of the structures themselves.
Storage of Mineral Materials
The Hearings Officer found that, with respect to the storage of the extracted materials, the
applicant proposed to use existing stockpile areas for storage and that this included an area that
was within one - quarter mile of the pre- existing Hoffinan dwelling and the Todd dwelling. She
then found that the evidence showed that these areas to be the best location to accommodate the
stockpile /storage areas because they would have the least visual impact on the neighborhood, and
would minimize the removal of buffering vegetation. On appeal, as appeal item G, the
opponents challenged the Hearings Officer's findings, asserting that there was no justification for
the finding and that she had not clearly identified storage sites and had failed to locate the sites as
far away as possible from the sensitive uses.
10 It is not entirely clear under which of these prongs the processing equipment, such as the crushers and the
washing equipment would fit. However, so long as the setbacks are met, it doesn't matter under which prong this
equipment is analyzed.
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The applicant argues that those piles where materials are stored that are located within a quarter
mile of the Hoffinan and Todd residences are not regulated by this provision since the piles do
not store materials that are stocked on the property for sale but constitute the topsoil portions of
the overburden that are being retained on site for eventual use in reclamation. Based upon the
context of the term "storage" as used in this provision and its link to processing, the Board agrees
with applicant that, for the purposes of applying this provision, piles of material being
maintained on site for eventual use in reclamation are not regulated under this provision. In
reviewing the listing of stored materials in this provision in conjunction with processing and
equipment storage, this provision is aimed at addressing stock piles that are being actively
worked, such as by being repeatedly added to and subtracted from during ordinary operation of
the mine, and that are held on site for eventual sale to ultimate users. Thus, the Board finds such
piles should be differently from piles of overburden or reclamation materials, since there is
continual activity associated with the former, whereas the piles of topsoil being retained on the
property for eventual use in reclamation are inactive except at the time the topsoil is stripped and
when the material is taken up for use in reclamation.
On the basis of the above analysis, the Board finds there is no violation of the setbacks for
storage of minerals from the pre -1990 Hoffman or Todd residences, as there simply is no
material actively being stored or processed within quarter -mile of either residence that qualifies
under this section. Accordingly, as to storage of materials within a quarter -mile of the Hoffinan
and Todd residences there is no need to demonstrate that those piles qualify for an exception.
Similarly, the Board finds that there is no storage of minerals proposed within a quarter mile of
the two closest Tumalo Rim subdivision dwellings.
The Board finds that on appeal, the applicant requested that an exception be granted for portions
of the existing stockpiled tuff and stockpiles of pumice that lie just within a quarter -mile of the
former Kemple residence. The area in question is an area that lies near the headwall and falls
just inside a quarter -mile acre from the fonner Kemple residence. The applicant argued that due
to the intervening changes in topography and elevation between the Kemple dwelling and the
storage site, there would be no increase in impacts to the Kemple residence and that storage of
minerals in this area would be further away from, and thus have less impact on, the Todd
dwelling and the pre- existing Hoffman residence, the two next nearest dwellings. In addition,
this is an area in which equipment is already operating on a daily basis excavating the mining
slot, so noise will not be increased. The Board finds from the applicant's noise study that
operation of equipment in this area does not violate noise standards and that, in fact, addition of
crushing activities in this area would not cause a noticeable increase in noise levels at houses
located to the south of the pit. With respect to compliance with air quality standards, the Board
finds that having storage piles marginally closer to the Kemple dwelling will make no difference
to the applicant's ability to control dust, which applicant demonstrated can comply with
applicable DEQ dust control standards.
Processing Locations
With regard to processing sites, the Board finds that the applicant proposes to process excavated
minerals in one of three areas identified on its revised site plan, by screening, washing and
crushing mineral materials, all of which activities are subject to the setbacks of DCC
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18.52.090(B) as processing activities. According to the applicant, this flexibility is necessary to
maintain on -site operational efficiency as extraction moves to new "slots" on the site. The
applicant submitted a site plan drawing superimposed over an aerial photo, showing all three
processing locations are outside of the one - quarter mile radius of nearby dwellings and Tumalo
State Park. Based upon her determination that "noise- sensitive uses" included residential
activities occurring outside of dwellings and her determination that the Hoffman driveway must
be included in the scope of a noise- sensitive use, the Hearings Officer concluded that the two
alternatives crushing sites, to the northeast and the southeast, must be eliminated.
For the reasons set forth above in Section IV(C) under the discussion of noise and dust - sensitive
uses, the Board finds that it is not appropriate to measure the setbacks of this section from the
location of residential activities outside the nearby residences; the setbacks must be measured
from the structures themselves. The Board finds, however, that the opponents' testimony is
persuasive that the crushing and processing will produce sufficient dust that, even with the less
restrictive noise and dust - sensitive uses, those standards will be violated if the crushing and other
processing is not limited to the one southwestern site shown on the site plan. Locating the
crushing and other processing in this site, because it is in a depression and behind the existing
stockpiles, will prevent the possibility of dust reaching the pre -1990 structures and the park.
Storage of Equipment
The Board finds that the existing equipment storage area, at the foot of the access road as it
descends into the pit is just outside of the quarter -mile setback from the two Tumalo Rim
subdivision residences, meets the setback requirements. The Board finds that there is ample
room within the quarter -mile setbacks for the equipment storage area to be moved and remain
outside of the quarter -mile setback as mining is shifted over to the existing storage area. The
Board finds that the water tower is within quarter -mile of the pre -1990 Hoffman residence, but
that the water tank does not produce noise or dust and, therefore, does not fall within the
definition of "operational equipment that produces noise or dust" and consequently is not subject
to the quarter -mile limitation. For the same reason, the proposed weigh scale is not subject to the
quarter -mile setback. Additionally, the Board finds that in any event the scale is located outside
of a quarter -mile of any pre -1990 noise- sensitive or dust - sensitive use.
C. Additional setbacks may be determined as part of the site reclamation review
process. Additional setbacks also may be required by DOGAMI.
D. In addition to the setbacks set forth herein, any greater setbacks required by
applicable building or structural codes adopted by the State of Oregon and /or
the County under DCC 15.04 shall be met.
FINDING: The Board finds that the proposed mine area is within the boundaries of the mining
area approved for reclamation by DOGAMI in 1995. According to Robert Houston, DOGAMI
reclamation specialist, the applicant must observe the setbacks established by the County -
approved site plan. From this it does not appear that DOGAMI will require additional setbacks.
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With respect to building and structural codes, the applicant does not intend to construct
permanent structures on the site, and there is no evidence that the portable structures are subject
to more restrictive setbacks than those provided for in the surface mining regulations.
Accordingly, the Board concludes that there are no additional setback standards that apply to this
proposal.
7. Section 18.52.100, Procedure upon filing of site plan.
A. Each application for site plan review and approval shall be processed subject to
DCC 22, the Uniform Development Procedures Ordinance.
B. The Planning Director or Hearings Body shall review the site plan application and
shall grant or deny site plan approval based on the proposed site plan's
conformance with the ESEE analysis for the site contained in the surface mining
element of the Comprehensive Plan and the applicable setbacks, standards and
conditions set, forth in DCC 18.52.090, 18.52.110 and 18.52.140, respectively. The
Planning Director or Hearings Body may require the applicant to make such
modifications to the site plan as are necessary to fulfill the requirements of the site -
specific ESEE analysis and the applicable setbacks, standards and conditions in
DCC 18. The Planning Director or Hearings Body shall not deny site plan
approval unless the requirements of the ESEE analysis and setbacks, standards
and conditions of DCC 18 are not or cannot be satisfied by the proposed site plan.
C. To the extent practicable, the Planning Director or Hearings Body shall review
the site plan application in conjunction with the review of the applicant's site
reclamation plan by DOGAMI.
FINDING: The Board finds that this site plan application was processed in accordance with
DCC Chapter 22. Additionally, the Board finds this provision does not add any new approval
standards to the setbacks, standards and conditions established in DCC 18.52.090, DCC
18.52.110 and DCC 18.52.140. As noted earlier in this decision, the ESEE is made applicable as
an approval criterion to the proposed site plan only to the extent there is a specific reference to it
in the standards of DCC 18.52.110, or pursuant to DCC 18.52.020 and DCC 18.52.110(P), there
is a setback, standard or condition expressed in the ESEE's Program to Meet the Goal that is not
included in the implementing zoning ordinance element of the Program to Meet the Goal or that
is more restrictive (i.e., in conflict with) the implementing provisions of DCC Chapter 18.52.
8. Section 18.52.110, General operational standards.
Prior to the start of any surface mining activity and no later than site plan review if
such review is required under DCC 18.52.110, the applicant shall demonstrate that the
following standards are or can be met by the surface mining operation:
A. Access.
1. All on -site roads used in the mining operation, and access roads from
the site to a public road maintained by a government agency, are
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designed and constructed to accommodate the vehicles and equipment
which will use them, and shall meet the following minimum standards:
a. All access roads within 100 feet of a paved county road or state
highway are paved unless the applicant demonstrates that other
methods of dust control, including application of oil or water,
will be implemented in a manner which provides for the safety
and maintenance of the county road or state highway.
b. Roads within the surface mining parcel which are used as part of
the surface mining operation are constructed and maintained in
a manner by which all applicable DEQ standards for vehicular
noise control and ambient air quality are or can be satisfied.
c. All roads used for mining are paved and will be adequately
maintained at all points within 250 feet of a dwelling or other
dust - sensitive use existing on the effective date of Ordinance No.
90 -014.
2. Improvements or fees in lieu of improvements of public roads, county
roads and state highways may be required when the Planning Director
or Hearings Body, in consultation with the appropriate road authority,
determines that the increased traffic on the roads resulting from the
surface mining activity will damage the road sufficiently to warrant off -
site improvements. If a fee in lieu of improvements is required, the
amount of the fee shall reflect the applicant's prorated share of the
actual total cost of the capital expenditure of the road construction or
reconstruction project necessitated by and benefiting the surface mining
operation. Discounts for taxes and fees already paid for such
improvements, such as road taxes for vehicles and for property already
dedicated or improved, shall be applied.
FINDING: The Board finds that subsection (1) applies only to roads on the site itself and that
subsection (2) applies to improvement of roads off -site where the road authority required that
damage resulting from increased traffic warrants the applicant to make or contribute to off -site
improvements.
a. On -site roads.
With respect to compliance with subsection (A)(1)(a), the Board finds that at least the first 100
feet of the access road into the site from Johnson Road, a County maintained public road, is
paved, thus meeting the requirements of this subsection. The Board conditions this approval to
ensure that such paving is adequately maintained. With respect to compliance with subsection
(A)(1)(b), the Board finds that DEQ air quality standards can be met through the applicant's dust
control plan, which will maintain all dust on -site. With respect to compliance with subsection
(A)(1)(c), the Board finds that, although there is an access drive near the proposed water tower
located within 250 feet of the Hoffman property line, it is more than 250 feet from the Hoffinan
dwellings. The Board finds that the nearest dwelling on the Hoffman property (17 -12 -6C -401)
was constructed in 1999 -2000, and was not in place when Ordinance No. 90 -014 was adopted
(July 12, 1990). In addition, the Board finds there are no proposed driveways on the site that
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will be within 250 feet of the dwelling on the Todd property to the east. If the applicant proposes
any additional driveway, the proposal will require a permit per DCC 12.28.050. Furthermore,
the Hearings Officer found that the horse breeding activities on the Hoffinann property were
arguably dust - sensitive, and subject to this criterion. Whether or not the horse breeding activities
are dust - sensitive uses, the Board finds that the horse breeding activities on the Hoffman
property are located more than 250 feet from internal roads.
Before the Hearings Officer, the opponents argued that the use of the access roads should be
restricted during the winter months because the road is in the deer winter range. The Board finds
there is nothing in the SM or WA zone that provides for a restriction on using the access road
during the winter months. The WA overlay zone does not restrict access on roads generally,
only the length of driveways to residences. In the SM zone, DCC 18.52.110(L) requires
conservation of fish and wildlife values only when required by the site - specific ESEE. As the
Board found elsewhere in this decision, the wildlife restrictions for Site 303 were eliminated by
Ordinance 92 -044.
b. Off -site roads.
The Board finds that Johnson Road is a paved County- maintained road that serves the mining
site. Improvements to Johnson Road at the entrance to the site, including a left turn lane and right
turn deceleration lane, were completed by the applicant's predecessor -in- interest. The Board
finds from the comments of the Deschutes County Road Department, the road authority for
Johnson Road, that the applicant will not be required to make off -site improvements or
contributions to offset any damage to Johnson Road and that accordingly there are no
requirements for off -site road conditions.
The opponents made various arguments, both before the Hearings Officer and on appeal, that the
off -site impacts of truck traffic on motorists, cyclists and residents of the area and on the
capacity of the road system, particularly the intersection of Cook Avenue with Highway 20,
should be considered. The Hearings Officer appears to have considered such impacts under this
section in her decision, but ultimately determined that the arguments had no merit or that
mitigation was adequate. The applicant argued before the Hearings Officer and before the Board
that nothing in this section allows for consideration of the impacts of off -site truck traffic, other
than whether the physical damage inflicted by trucks to the road system requires off -site
improvements or a contribution to such improvements to mitigate such damage. As noted
previously, the Board agrees with the applicant; this section of the code provides no basis for
assessing the off -site traffic impacts of haul trucks as an approval criterion. Moreover, the Board
finds there is no basis to apply anything related to truck traffic from the ESEE under either DCC
18.52.020, DCC 18.52.100 or DCC 18.52.110(P) because nothing in the ESEE's Program to
Meet the Goal requires consideration of the impacts of off -site truck traffic as part of the
approval for a mining permit.
Opponents raised issues related to the adequacy of sight distance at the access point to Johnson
Road. Again, the Board finds that nothing in the approval criteria of DCC Chapter 18.52 or the
ESEE addresses this issue. The Board finds the Deschutes County Road Department has
authority to grant access permits onto its roads, but such authority is not linked to issuance of a
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land use permit for mining under DCC Chapter 18.52. In any event, from the evidence supplied
by the Road Department, the Board finds that the Road Department granted an access permit to
Johnson Road for the subject property and that such permit runs with the land and benefits the
applicant. Therefore, no access issues can be raised or addressed by the Board as part of this
process.
B. Screening.
1. The site is screened to meet the standards specified in DCC 18.52.110(B)
(2), unless one of the exceptions in DCC 18.52.110(B) (6) applies.
2. Performance Standard. When screening is required by DCC
18.52.110(B)(1), it obscures the view of the screened uses from the
protected uses with the methods and to the extent described in DCC
18.52.110(B)(5).
3. Protected Uses.
a. Noise- sensitive or dust - sensitive uses existing on the effective
date of Ordinance No. 90 -014.
b. Public parks and waysides.
c. Frontage on roads designated by the Comprehensive Plan as
collectors, arterials and highways.
d. Areas zoned Landscape Management Combining.
e. Those portions of state and federal scenic waterways from which
the surface mining activity is visible from the perspective of a
person standing at the high water mark on either bank of the
waterway.
4. Screened Uses.
a. All equipment stored on the site.
b. All crushing and processing equipment.
c. All excavated areas except: Areas where reclamation is
occurring; roadways existing on the effective date of Ordinance
No. 90 -014; new roads approved as part of the site plan; material
excavated to change the level of the mining site to an elevation
which provides natural screening.
5. Types of Screening.
a. Natural Screening. Existing vegetation or other landscape
features which are located on the surface mining site within 50
feet of the boundary of the site, and which obscure the view of
the screened uses from the protected uses, shall be preserved and
maintained.
b. Supplied Screening. Supplied vegetative screening is screening
not already existing and which is added to the site, such as hardy
plant species. Plantings shall not be required to exceed either a
density of six feet on center or a height of six feet at the
commencement of mining. Supplied earthen screening shall
consist of berms covered with earth and stabilized with ground
cover.
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6. Exceptions. Supplied screening shall not be required when and to the
extent that any of the following circumstances occurs:
a. The natural topography of the site offers sufficient screening to
meet the performance standard in DCC 18.52.110(B)(2).
b. Supplied screening cannot meet the performance standard in
DCC 18.52.110(B)(2) due to topography.
c. The applicant demonstrates that supplied screening cannot
reliably be established or cannot survive for a 10 year period due
to soil, water or climatic conditions.
d. Screened uses that are visible from the protected uses will be
concluded and will either be removed or reclaimed within 18
months.
e. The surface miner and the owner or authorized representative of
the owner of the protected use execute and record in the
Deschutes County Book of Records a mitigation agreement that
waives screening requirements and describes and adopts and
alternate program or technique.
7. Continued Maintenance. Vegetative screening shall be maintained and
replaced as necessary to assure the required screening throughout the
duration of the mining activity.
FINDING: Based on findings above regarding noise and dust - sensitive uses and screening
requirements, the Board finds that the compliance standard for this provision is set forth in DCC
18.52.110(B)(1), (2) and (5), with exceptions from compliance set forth in DCC
18.52.110(B)(6). DCC 18.52.110(B)(3) describes the specific uses that are subject to visual
screening and DCC 18.52.110(B)(4) describes the specific mining activities that are to be
screened.
a. Protected Uses. -
The Board finds the protected uses are listed in DCC 18.52.110(B)(3) of the code. In this case,
the protected uses potentially implicated by the applicant's mining proposal are as follows:
With regard to noise - sensitive or dust - sensitive uses existing as of July 12, 1990, the Board finds
that there are numerous dwellings developed prior to 1990 to the northwest of the site in the
Tumalo Rim subdivision (the nearest of which, the Zuber residence on Tax Lot 200 is identified
as Reference Site 6 in the sound engineer's report); there is the pre -1990 Hoffman residence on
Tax Lot 400 to the north on the bank of the Deschutes River (referred to as Reference Site 7 in
the sound engineer's report)"; there are the Kleine and Scolman dwellings within the impact
area across the Deschutes River between Tumalo State Park and Highway 2012; there is the Todd
The closer Hoffman residence located on Tax Lot 201 was built in 1999 pursuant to a SMA permit and is not
protected under this standard.
12 The Johnson (Tax Lot 1104), Walther (Tax Lot 1101) and Kalmasy (Tax Lot 100, also referred to as Reference
No. 2 in the sound engineer's report) residences on the bluff to the east across the Deschutes River between the
River and O.B. Riley Road were all built after 1990 and are not protected under this standard.
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residence on Tax Lot 200 to the east along the west bank of the Deschutes River (also referred to
as Reference No. 1 in the sound engineer's report); there is the former Kemple residence to the
south on Tax Lot 400 (also referred to as Reference No. 3 in the sound engineer's report);13 the
Davenport residence to the west, and the Hamilton (on Tax Lot 702, also referred to as Reference
No. 5 in the sound engineer's report), Triplett (on Tax Lot 702) and Geisler (on Tax Lot 700) to
the northwest. As noted earlier, the Board specifically rejects the Hearings Officer's conclusion
and the opponents' assertions that the viewing point of noise - sensitive and dust - sensitive uses
includes any area on the property that is used as part of the noise or dust - sensitive use.
With regard to public parks and waysides, the Board finds that Tumalo State Park is adjacent to
the Site on its southeastern edge and is located nearby to the northeast of the site on both sides of
the Deschutes River. The Board finds that the public use areas of the park are concentrated on
the other (east) side of the Deschutes River and that the day use picnic area is located along the
east side of Deschutes River and the campground areas are located further to the north and east,
to the east of OB Riley Road.
With regard to frontage on roads designated as collectors, the Board finds that Johnson Road is a
collector, but that it fronts on the property at only a point, at the northwest corner of Tax Lot 100.
Areas zoned Landscape Management Combining includes the Deschutes River, which coincides
with the Deschutes River Scenic Waterway.
b. Screened Uses.
DCC 18.52.110(B)(4) lists the uses on the mine site that are subject to the screening standard.
1) Stored Equipment and Processing Equipment.
With respect to equipment stored on site and crushing and processing at the approved location,
the Board finds that existing vegetation, topography and the depression of the mine site screens
the equipment from view of the protected noise- sensitive or dust sensitive use to the south, west,
northwest and north. Only the two referenced pre -1990 residences across the river have the
potential to view equipment stored at the site or the crushing and processing equipment.
The Board finds that mining equipment would not be visible from the campground, the day -use
picnic areas or the trail along the Deschutes River that leads to the upper park area in nearby
Tumalo State Park due to an intervening ridge and extensive vegetation located on the State Park
property between the site and these areas of the park. Only in those areas of the State Park
leading to and including the top of the knob near the amphitheater in the State Park would stored
equipment or crushing equipment be visible to users of the park.
With respect to the LM frontage on Johnson Road, the Board finds the intervening low ridge and
vegetation on the applicant's property (located outside and to the west of the mining area)
screens any view of the equipment at this particular point.
13 The Gibson residence and Kemple- Cranston residence (on Tax Lot 300, also referred to as Reference No 4 in the
sound engineer's report) were built after 1990 and are not protected under this standard.
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With respect to the Deschutes River State Scenic Waterway /LM Corridor, the Board finds that
by definition in this chapter14 and in the LM chapters 5 of the County Code, the relevant viewing
area is from the high water mark of the river or stream or from the stream itself and that changes
in elevation and existing vegetation on the park property screens the such aspects of the proposed
mining operation from view.
2) Excavated Areas.
The Board finds that due to the location of the mining site in a bowl and the intervening
topography and vegetation, all existing excavated areas, with the exception of the headwall area,
would be screened from view of the surrounding protected uses just as for the stored equipment
and the processing equipment described above. With regard to the headwall, the Board finds that
the area of contention before the Hearings Officer and before the Board on appeal is the extent to
which the headwall can be viewed by protected uses and the extent to which that aspect of the
mine is required to be protected. The Board will address that issue below.
The Board notes that the opponents argued that the protected uses should be protected from
viewing dust blowing from the mine. The Hearings Officer found that dust blowing from the
mine was visible, in the past, from the pre -1990 residential uses located to the northwest, the pre -
1990 Hoffinan residence, the Todd residence and the Kemple residence, and from the State Park,
especially on windy days. The Hearings Officer concluded, however, that dust from the mine
site was not listed as a screened "use" or activity and therefore blowing dust is not regulated
under the visual screening provisions of the code. The Board concurs. There is nothing in the
list of screened uses in DCC 18.52.110(B)(4) that supports an interpretation that the visual
impacts of dust are to be screened from protected uses. In addition, as the Board determined
previously, the opponents cannot use DCC 18.52.110(P) to bootstrap such considerations into the
visual screening protections of this provision, because nothing in the ESEE's Program to Meet
the Goal provides for such restrictions.
b. Screening Requirements.
The Board finds that the view of the mining operation from the pre -1990 Hoffman residence is
blocked by the intervening ridge on the Hoffinan property and consequently, no screening along
the northern boundary is required. Additionally, the Board overrules the Hearings Officer's
determination that the driveway leading to the Hoffinan pre -1990 dwelling falls within the
definition of a noise or dust - sensitive use requiring protection.
With regard to the view of the mining operation from Tumalo State Park, the Board previously
found that the mining operation is not visible from the developed areas of the park, such as the
day -use picnic area and the campsites in the campground. It is only the higher elevation area
around the knob near the amphitheater where the mining operation, namely the headwall, is
visible. The Board found that, as with the Hoffinan pre -1990 dwelling, that the ridge is a
14 DCC 18.52.110(B)(3)(e).
15 DCC 18.88.050(B).
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Page 42
topographical impediment to requiring supplied screening. In determining whether and to what
extent the Board should require screening to mitigate the visual impacts of the headwall, the
Board's previous findings on this issue are applicable here. In addition, the Board notes the
presence of other unvegetated exposed cuts of similar material in the immediate area, including
road cuts on O.B. Riley Road and Tumalo Reservoir Road and what appears to be an old mining
cut within the boundary of Tumalo State Park. The Board agrees with the hearings officer,
however, that such similarities with other excavation cuts do not provide a basis for excluding
the application's proposed excavation of the headwall from applicable screening standards.
The Board also finds that supplied screening can be effective to screen stored equipment from
view of the higher elevation areas of the park and the pre -1990 noise - sensitive and dust - sensitive
uses located within the impact area between the State Park and Highway 20. Accordingly, the
Board includes a condition of approval that the equipment storage and processing locations be
screened in accordance with DCC 18.52.110(B)(5). The Board notes that the existing equipment
storage area and the southwestern processing location are already screened by vegetation and an
existing stockpile that serves as a berm. The applicant proposed at the hearing before the Board
that supplied screening in the nature of 16 -foot high berms would be appropriate to screen the
two alternative processing locations. The Board finds, however, that the dust from these sites
will be significant such the berms will not be effective for preventing the dust migration to the
adjacent dust - sensitive uses. Thus, as previously stated, the applicant will be limited to the
southwestern site noted on the site plan.
To ensure that the existing screening and topography protects the view of the pit from noise -
sensitive and dust - sensitive uses to the northwest, west and south of the site, the Board includes
as a condition of approval that the existing vegetation and topography of the SM -zoned site
outside the mining boundary be maintained. The applicant requested that it be allowed to do
some thinning for wildfire protection as suggested in the Bend Fire Department's April 10, 2008
comments. The Board finds that the pit is screened from areas to the west and northwest by the
fact that the pit sits in a depression defined by the low ridge noted in the site plan so that
retention of all trees on the area's downslope of the ridge is not essential in order to screen the pit
from view. The Board finds that applicant's request can be accommodated by not restricting
removal of vegetation from the EFU -zoned portion of the property.
C. Air Quality. The discharge of contaminants and dust created by the mining
operation and accessory uses to mining does not exceed any applicable DEQ
ambient air quality and emissions standards.
FINDING:
a. Applicable Regulations.
The Board finds that potential sources of emissions are from exposed earthen surfaces, the haul
roads, stock piles and the processing equipment. For non -point contaminant sources, such as
exposed earthen surfaces and the haul roads, the only applicable air quality standards generally
applicable are the fugitive dust emission standards found in DEQ's rules at OAR 340 -208-
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0210(2). For defined fugitive dust sources such as confined stock piles, the visible air
contaminant limitations set forth at OAR 340 - 208 - 0100(2) may apply (but see below). In
addition, the particle fallout standards of OAR 340- 202 - 0050(2) may apply (but see below). For
"point" sources, such as a rock crusher, an air contaminant discharge permit (ACDP) is required.
OAR 340 - 216 -0020, Table 1, Part B (61). The Board finds that both crushers that would be used
at the site have been issued general ACDPs by DEQ. Both ACDPs are included in the record.
As an initial matter, the Board finds that the body with regulatory authority to apply and enforce
DEQ air quality standards is DEQ. The Board finds that the County may not regulate in this
complex regulatory area in a manner that would be inconsistent with or that would go beyond
DEQ requirements.16 The Board finds from DEQ correspondence in the record that DEQ
standards for the pollutant at issue — particulates — and the nature of the source are not predictive
in the sense that compliance can be modeled in advance, but generally operate by setting
standards that can be enforced if there is a violation.
For the reasons stated below, the Board declines to apply potentially applicable DEQ air quality
standards other than the DEQ nuisance standard found at OAR 340 - 208 -210. In his testimony
before the Board, DEQ representative Frank Messina emphasized the DEQ nuisance standard
and taking reasonable steps to prevent emissions from the site. The visible air contaminant
standard of OAR 340 - 208 -100 measures opacity of emissions from a source and is limited in its
applicability to defined emission sources such as industrial smoke stacks, and its only
applicability to this site would be to emissions from the crushers (already subject to DEQ- issued
ACDPs) or to emissions from well - defined stock piles. The evidence indicates that application
of this standard is not predictive but is only after the fact and requires a specially trained "reader"
to be in the field at the time emissions are being experienced. The particle fall -out standard is an
ambient air quality standard set forth at OAR 340 - 202 -0110. According to DEQ rules, ambient
air quality standards are generally not used to determine the acceptability or unacceptability of
emissions from a particular source of air contamination, but are more commonly used to
determine the adequacy or effectiveness of emission standards for all sources in a general area.
OAR 340 - 202 - 0050(2). Application of such an assessment tool by DEQ would depend upon
DEQ making a detennination that a particular source was "singularly responsible" for a violation
of ambient air quality standards in a particular area and then detennining that such an assessment
tool was appropriate. OAR 340 - 202 - 0050(2). Even if the Board were to require the applicant to
conduct particle fall -out monitoring and to submit reports to the County, the County does not
have the expertise to interpret the report data and then apply it. Thus, the Board finds that this is
a tool better suited for use by DEQ using its specialized knowledge of the air quality standards.
The Board notes that the approved ACDPs for the crushers includes conformance with these
standards as conditions of approval for the crushing operations, but does not attempt to predict
up front under what set of circumstances the standards will be met. In view of DEQ's manner of
applying these standards through its ACDPs, the Board is not going to go further than DEQ and
apply these additional DEQ standards as standards of approval. The Board believes that the
objective sought by both these standards can be achieved by ensuring that the applicant has an
adequate dust control program and means to prevent dust from coming off such sources under
the general nuisance standard.
16 Air pollution control is regulated by ORS Chapter 468A.
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The opponents complain that the air quality standards are too reactive in nature. The Board
finds, however, that the nature of dust control from unconfined sources and the daily variability
of conditions related to air quality such as wind, temperature, humidity and amount of human
disturbance requires a generally reactive approach to dust control. The issue simply does not
lend itself to quantifiable standards of approval or quantifiable enforcement provisions. In
addition, the Hoffmans' attorney appears to argue that under DCC 18.52.110(P) some additional
unspecified standards for dust impacts must be applied. In its findings under that section, the
Board finds that the ESEE does not authorize the application of any additional air quality
standards than can be justified under DCC 18.52.110(C).
The opponents' attorney also argued in a submittal before the Board that the applicant failed to
demonstrate compliance with ORS 215.296 regarding dust impacts on farm practices. The
Board agrees with the applicant that this standard is not applicable here. The case law cited by
the opponents' attorney applies to cases involving a comprehensive plan amendment to add a
new mineral and aggregate resource to the comprehensive plan under the Division 23 rules. The
Board finds that this case is about an application for a permit under an existing ESEE in the
comprehensive plan that allows for mining. There is no basis to apply the Division 23 rules to
this case. See n. 15, infra.
Finally, opponents also made an issue of the silica content of the dust arising from Applicant's
mining operation and health conditions related to silica. The Board finds from the June 3, 2008
DEQ comments, including Exhibit D, June 2, 2008 letter of Linda Hayes - Gorman, in the record
that there are no DEQ air quality standards relating to the crystalline silica content of
particulates. The parties dispute whether in fact there is sufficient crystalline silica content in
applicant's pumice, tuff and topsoil to give rise to health concerns and whether level of exposure
gives rise to health concerns. The applicant produced analytical testing data showing that levels
of crystalline silica were below levels associated with health risks. In addition, the applicant
produced evidence from an industrial hygienist, who questioned among other things whether the
exposure levels in anything other than an industrial setting were significant enough to give rise to
health concerns. The opponents disputed the accuracy of the samples relied upon for the tests
submitted by the applicant. In the absence of any standard to which the silica issue is relevant,
however, the Board finds that it need not resolve these factual issues.
b. Compliance with Applicable Regulations.
As noted above, the Board determined the only air quality standard appropriate to apply here is
the nuisance standard emphasized by DEQ in its testimony before the Board. In applying the
standard, the Board finds the applicant need only show that it is feasible to meet the standard; the
Board can then ensure compliance by attaching appropriate conditions. In this case, under the
DEQ nuisance fugitive dust standard feasibility depends upon whether Applicant has sufficient
tools at its disposal to reasonably control fugitive dust emissions.
The applicable standard is set forth at OAR 340 - 208 -0210. This standard requires that the
applicant take "reasonable precautions" to avoid particulate matter from becoming airborne and
then spells out at OAR 340 - 208 - 0210(2) what kinds of general best management practices such
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precautions may include. Again, as noted, given that the standard is not a numerical standard
and establishes a performance based upon the operator taking "reasonable precautions" under the
circumstances, such a standard cannot generally be addressed with precise, measurable
performance standards or conditions, but must rely upon the operator having available a menu of
available options and then taking reasonable actions in response to the circumstances presented.
In accordance with the menu of options identified by DEQ's administrative rule, applicant
proposed to use the following dust control measures as reasonable precautions:
• Using groundwater from a permitted on -site well, applied by water trucks or the
wastewater from applicant's wash plant as needed on exposed areas not sealed with a
hydromulch or similar soil sealant;
• Using a tackifier additive in the water as necessary to create a crust on exposed surfaces
not treated with the mulch;
• Applying dust - suppressing soil sealants on exposed areas of soil not being worked and
not subject to traffic;
• Maintaining the first 150 feet of the access road as a paved road;
• Monitoring and recording atmospheric conditions so that if atmospheric conditions with
winds of over 20 miles per hour combined with humidity of less than 50 %, mining
activities will cease until conditions improve;
• Watering the loads of open- bodied haul trucks carrying mined materials from the site or
in the alternative covering the loads with a tarp;
• Keeping the paved access road surface free from accumulations of mined materials and
dirt;
The Board finds from OAR 340- 208 -0210 and from the testimony of DEQ's Frank Messina that
the use of water or chemicals for control of dust is recognized by DEQ as a reasonable
precaution for control of dust for activities involving the clearing of land and use of unpaved
roads, material stockpiles and other surfaces that can create airborne dusts. The Board finds
from the evidence that the hydromulch, first applied by the applicants in April and May 2008,
was effective in controlling dust. The Board finds, with the exception of the headwall, the
effectiveness of the mulch in controlling dust at the site was documented by DEQ even on windy
days when DEQ had received complaints from neighbors about other mining operations in the
area.
The opponents have attempted to cast doubt on whether the mulch can be applied to control dust
on the headwall. However the Board finds from the May 20, 2008 testimony of Pat McClain and
the accompanying photographs and maps of treated areas that the mulch was used to treat an
identified problem area on the southwest corner of the headwall. The opponents also have
attempted to cast doubt on whether treatment with the mulch was successful, but they have not
provided evidence of emissions coming from any area treated with the mulch. The Board finds
that the photograph of a small dust plume introduced by the Hoffmans at the hearing before the
Board did not show dust coming from any areas treated with the mulch and could well have been
raised by the passing of a vehicle on one of the haul roads. The Board notes that the neighbors
have conceded that dust problems have been reduced since the time the applicant began treating
exposed areas with the hydromulch treatment in May 2008. At the hearing, the neighbors
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explained there had been no complaints since May of 2008 because the complaints had produced
no results. The Board finds that explanation is not convincing.
The Board notes that the evidence as to the present condition of the mulch applied in April and
May 2008 is conflicting. Again, the Board finds that the continued effectiveness of the mulch is
demonstrated by an absence of complaints or demonstrations of continuing problems. In any
event, the Board finds that the mulch product is effective and can be renewed as necessary and
that the applicant is committed to continuing to apply the mulch product to control dust
emissions and to apply water as needed.
The Board finds from the applicant's documented well and water tank capacity, the capacity of
its water truck and the David Evans & Associates (DEA) "worst- case" analysis that applicant has
an adequate source of water and an adequate means of delivering it to areas needing watering on
the hottest day of the year. The treatment of areas with the hydromulch reduced the areas that
must be watered. The Board finds that this, and the applicant's use of a tackifier in the water for
time periods when the mine is inactive, increased the effectiveness of the applicant's watering
program.
As noted, the opponents have questioned whether any of these methods can be effective in
addressing dust emissions from the headwall. The Board finds from testimony by the applicant
and the map of treated areas that it treated a problem area of the headwall with the mulch and
that the mulch held up well. As noted above, the Board notes the presence of other unvegetated
exposed cuts of similar material in the immediate area. The Board notes from the testimony that
these headwalls build up a crust over time that reduces dust emissions. The Board notes that the
headwall areas of the applicant's mining operation are not actively worked or disturbed and that
over time a crust is expected to build up on the headwall as well. To assure the creation of this
crust and because the Board finds the most persuasive testimony to be that of the applicant and
the opponents that the hydromulch does not remain on the headwall, the Board finds that the
headwall cannot be mined without creating dust in sufficient quantity that dust - sensitive uses
will be affected. Therefore, no further mining of the headwall will be allowed as part of the
approval of this application.
The Board finds that other practices from the menu of reasonable practices recognized in DEQ
rules is the covering of loads in open- bodied trucks when transporting materials likely to become
airborne. See OAR 340 - 208- 0210(2)(f). The record also indicates that applicant expressed an
intent to water down truck loads with a water bar. The Hearings Officer allowed this as an
alternative to tarping in her decision. The DEQ menu of practices also recognizes the prompt
removal from paved driveway areas of earth or other material that does or may become airborne.
OAR 340 - 208- 0210(g). The Board will include both practices as a condition of approval.
Finally, the applicant proposes to monitor atmospheric conditions and to shut down in instances
when the wind is over 20 miles per hour and the relative humidity is under 50 %. The Board
finds fi-om the testimony of applicant's air quality expert that defining this outer limit was
effective at a former Cascade Pumice site nearby. Therefore, the Board includes this as a
condition of approval.
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The opponents criticized the Hearings Officer for not including more measurable conditions of
approval to ensure the nuisance standard is met, but the Board finds that given the nature of the
"reasonable precaution" standard, the menu -type approach of conditions, requiring application of
the various dust control techniques as necessary is the best that can be done. The Board notes
that other than incursion of dust onto the Hoffman property in the past and the likelihood of such
an incursion if the headwall continues to be mined, there is no evidence that individual property
owners have suffered any invasion of their own properties by dust emissions from the site, given
the direction of prevailing winds and the existence of treed buffers around the site. In addition,
the testimony of State Parks personnel doesn't indicate that dust emissions from the property
have been problematic for the Park.
The issue for many seems to be the visual impact, but such impacts typically do not constitute a
nuisance. The Board notes that amongst the factors to be considered in determining the
existence of a nuisance is the "suitability of each party's use to the character of the locality in
which it is conducted ". OAR 340 - 208- 310(1)(e). Much of the surrounding area is zoned EFU,
which protects accepted farming operations from noise and dust complaints and in fact there is
evidence in the record that on occasion, the farming operations of opponent Triplett raises dust
that under Oregon's Right to Farm Law likely could not be the subject of a complaint.
c. ACDP Conditions.
As noted above, DEQ issued to the applicant ACDP general pen-nits for its two crushers. These
permits include performance standards for various parameters and a process for regulating air
contaminants being emitted from regulated sources. The conditions are enforceable by DEQ
through enforcement proceedings. If the applicant operates in violation of the conditions of the
ACDP, the ACDP is subject to rescission. The Board includes as a condition of approval that the
ACDPs be maintained in force by the applicant.
Opponents have expressed concern about whether the ACDPs should have been granted.
However, the Board finds that that is a matter for DEQ. DEQ established a pennitting process
and that process is solely determinative on whether there is compliance with DEQ regulations.
D. Erosion Control. Sedimentation and erosion resulting from the mining
operation does not affect any perennial stream so as to violate DEQ's water
quality standards.
FINDING: The Board finds from this provision's explicit reference to "perennial stream" and
to the action of "sedimentation and erosion" that this provision is intended to address sediment
discharges from a property that may affect water quality of surface waters of the state. The
Board finds that the DEQ water quality standards referred to are those established under OAR
340 Division 41 for pollutant parameters such as temperature, turbidity, etc., that would be
affected by sediment discharges. See, e.g., OAR 340 -041 -0009 — OAR 340 - 041 -0036.
The Board finds this standard is implicated by discharges of sediments into perennial surface
water streams such as the Deschutes River. In this case, the Board finds there is no perennial
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stream on or abutting the property and that the only perennial stream in the area is the Deschutes
River, located east of the intervening Todd property.
The Board finds the only water that rises on the site would be storm water and the process water
from the wash plant. The Board finds that the combined effect of the topography of the area to
be mined (as shown on the site plan) located in a bowl between properties to the north and south
and west, the proposed 100 -foot setbacks from the property lines and the extensive buffer
between the mining area and the east property line allows for storm and process waters to be
contained on site. Accordingly, the Board finds that surface waters within the permit area will be
retained on site and there will be no discharge of waters from the site into the Deschutes River.
The opponents raised an issue about storm water flowing off the property onto the Hoffman
property from the easterly portion of the property formerly mined by Cascade Pumice. This area
is outside the permit area and it is not clear to the Board that this portion of the site is subject to
regulation for such impacts under this permit application. However, even if it were, the Board
finds from Pat McClain's May 6, 2008 testimony that the applicant addressed the issue by
contouring that portion of the property with a series of diagonal water bars to divert storm water
away from the northern property boundary. In its letter of May 6, 2008, DOGAMI expressed
satisfaction with such measures and that the potential for any off -site flow of storm water had
been adequately addressed.
During the hearing, the Tumalo Rim Water Improvement District raised water quality issues
related to potential groundwater contamination and protection of the District's well, located
approximately 1,800 feet to the north of the subject site. The well provides drinking water for
the 53 properties that are included in the Tumalo Rim subdivision. The District's concerns were
principally about contamination of groundwater from spills of hazardous materials from vehicles
and equipment working and servicing applicant's mine site and also contamination from the well
on applicant's property and possible depletion of the aquifer that would affect the District's
wells. The Board finds that such concerns are not relevant to a standard that addresses impact on
water quality arising from sedimentation and erosion and will not address that issue further here.
E. Streams and drainage. Unless agreed to, in writing, by the adjoining property
owner(s), existing natural drainages on the site are not changed in a manner
which substantially interferes with drainage patterns on adjoining property or
which drains waste materials or waste water onto adjoining property or
perennial streams. Where the surface mining site abuts a lake, perennial
stream or other perennial body of water, all existing vegetation within 100 .feet
of the mean high water mark shall be retained unless mining activity is allowed
within this area by the site - specific ESEE analysis in the surface mining
element of the Comprehensive Plan.
FINDING: The Board finds this provision includes two separate requirements: (1). that existing
natural drainages are not changed in a manner that would interfere with drainage patterns on
adjoining properties or that would drain waste materials or waste water onto adjoining properties
or perennial streams and (2) that all vegetation within 100 feet of the high water mark of a lake
or perennial stream must be maintained.
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With respect to the second requirement, the Board finds the site is not within 100 feet of the high
water mark of any lake or perennial stream. Therefore, the proposal complies with the second
prong of the standard.
With respect to the first prong of the standard, the Board finds there are no natural drainage ways
that lead across or lead to the site from adjacent properties. The Board finds that the easternmost
portion of the property in an area outside the permit area slopes toward the Todd property from
southwest to northeast. Because of prior mining in the area by operators prior to Cascade
Pumice and subsequent reshaping of the topography of the area, it is not known whether this area
of the site had any natural drainage ways. As noted above in response to subsection D, the
Hoffmans expressed concern about drainage coming off this area onto their adjacent property. In
response to that issue here, the Board adopts its findings in Paragraph 4 in that response.
The Board again notes the concerns raised by the Tumalo Rim Water Improvement District .
about impacts of the operation on their drinking water wells to the north. Again, the Board finds
that those issues are not material to this particular approval standard, which addresses surface
water flows and riparian vegetation.
F. Equipment Removal. All surface mining equipment and related structures will
be removed from a mining site within 30 days of completion of all mining and
reclamation.
FINDING: The Board finds that mining of the site will require equipment and a scale house.
The Board finds that this standard can be satisfied through the imposition of a condition of
approval requiring that all equipment and related structures to be removed within 30 days of
completion of all mining.
G. Flood Plain. Any mining operations conducted in a flood plain, as defined in
DCC 18, will satisfy all applicable conditional use criteria of DCC 18.96.030
through 18.96.060.
FINDING: The Board agrees with the Hearings Officer's finding that there is no flood plain
area on the subject property, as shown on FEMA map no. 41017C0655E dated September 28,
2007. Accordingly, this criterion does not apply.
H. Noise. Noise created by a mining operation, vehicles, equipment or accessory
uses which is audible off the site does not exceed DEQ noise control standards,
due to topography or other natural features, or by use of methods to control and
minimize off -site noise, including, but not limited to: Installation of earth -
berms; placing equipment below ground level; limiting hours of operation;
using a size or type of vehicle or equipment which has been demonstrated to
meet applicable DEQ noise control standards; relocation of access roads, and
other measures customarily used in the surface mining industry to meet DEQ
noise standards.
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FINDING: The Board finds from the testimony of the opponents that the applicant's proposed
mining activities will produce noise that is audible off site. Applicant does not dispute this and
produced a noise study prepared by a licensed acoustical engineer to show compliance with
applicable DEQ noise control standards at nearby noise - sensitive uses.
Applicable standard. The applicable noise standards are found in the DEQ administrative rules
in Oregon Administrative Rules 340 Division 35, specifically, the noise regulations for Industry
and Commerce found at OAR 340 - 035 -035. The Board finds that the applicable rules are those
found at OAR 340 - 035- 0035(1)(b)(A), which regulate "New Sources on Previously Used Sites."
The proposed application involves a new source of noise, since crushing activities are proposed
where there were no such activities before, and it involves a "previously used site" since under
the definitions of OAR 340 - 035- 0015(47) a previously used site is one that was used for
industrial or commercial uses within the preceding 20 -year period. From the prior use of the site
under SP -95 -010, the Board finds there is no question that the site is a "previously used" site. As
the Hearings Officer found in her decision, the applicable standard requires that proposed
operations meet the decibel levels set forth in Table 8 of the DEQ rules, which sets forth a
"maximum allowable" noise control standard of 55 dBA during the hours between 7 a.m. and 10
p.m. for the L50 statistical sound level.
Compliance. The applicant submitted noise studies dated December 18, 2007, February 19,
2008 and April 15, 2008 conducted by its expert Kerrie Standlee analyzing noise levels at the
site and several supplemental submittals addressing issues that arose during the hearings process.
The conclusions of these studies form the basis of the Board's findings of compliance, set out
below.
The December 18, 2007, study was the base study and addressed what the noise levels could be
expected if crushing were introduced at the southwest crushing location noted on the site plan
with both a pumice crusher and associated screening plant and a portable rock crusher and
portable screening plant and on -going pumice excavation activities. The study was based upon
reference noise levels for the equipment modeled and assumed that the equipment would be
running at its maximum noise level for an hour. Eight dwelling locations in each direction of the
applicant's site were chosen on the basis of which dwellings were expected to have the greatest
potential for receiving noise for the purposes of modeling. For the analysis for each noise
receptor, the model assumed that excavation equipment would be operating at the point nearest
each of the noise receptors. Factors such as sound reflection off the headwall, the height of the
receiving site relative to the pit and the effects of atmospheric conditions were all included in the
model. The results showed that both the pumice crusher and associated screening plant and the
rock crusher and its associated screening plant and the excavating equipment, haul truck and
water truck could be operated all at once and the DEQ noise control standards could be met
without mitigation with room to spare. The most impacted dwelling was the Zuber dwelling
(Reference No. 6) with predicted noise levels in Table 4 of 55 (L01), 52 (L10) and 51 (L50)
dBA, well under the respective DEQ standards of 75, 60 and 55 dBA. The results of the
modeling were confirmed by a field test performed by Mr. Standlee of noise levels of the
operating rock crusher and associated mining equipment in place at the southwest location,
measured at three nearby noise receptors. Again, the operations met DEQ noise control
standards with plenty of room to spare, without any mitigation required.
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The February 18, 2008 and April 15, 2008 noise studies show respectively that pumice crushing
and rock crushing17 can be conducted at the alternative processing sites shown on the site plan
and meet DEQ standards. The only mitigation required is mitigation at the northeast processing
site when using the rock crusher, which requires that the ground level be lowered by 5 feet at the
site or a 5 -foot high berm be constructed between the crusher and the 1999 Hoffman dwelling.
Mr. Standlee's April 15, 2008 supplemental report finds that adding the wash plant at any
location would add an additional 3 dBA, which would fall within the DEQ noise standards at
each processing site.
Applicant requested as part of its approval that it not be limited to the specific equipment upon
which the modeling or testing was based, but that, for reasons of flexibility and to allow for older
equipment to be replaced, it be allowed to substitute other equipment. Applicant's noise expert
provided an explanation for this request in his testimony of February 15, 2008, and April 15,
2008, and suggested that the decision -maker adopt a condition of approval requiring the
applicant to meet DEQ noise standards and to require periodic testing to demonstrate continued
compliance. The Hearings Officer agreed, finding that under the circumstances, limiting the
applicant to specified equipment was not necessary and that a condition of approval requiring
renewed noise testing and modeling every other year, starting in August 2009, was appropriate.
The Board agrees with the Hearings Officer that under these particular circumstances a condition
of approval is not required to specify the exact equipment that needs to be used. The Board finds
from the applicant's noise studies dated December 18, 2007, February 19, 2008 and April 15,
2008 that it is feasible for the applicant to excavate the Tumalo tuff, Bend pumice and incidental
aggregate materials and to process such materials by screening, washing and crushing at any of
the three locations identified in applicant's February 19, 2008 noise study using the kind of
equipment that applicant requires to excavate and process the mineral materials and with the
benning around crushing equipment identified in the February 19, 2008 noise study and meet the
DEQ noise control standards. The Board finds from the February 19, 2008 testimony of Mr.
Standlee and the April 8, 2008 testimony of Pat McClain that the earth moving equipment he
used in his modeling was larger and louder than what is actually currently being used by the
applicant. The Board finds that this gives the applicant a cushion to increase the size and/ or
amount of its equipment over that that which is currently being used. In addition, the Board
finds from the applicant's noise study that the applicant used very conservative assumptions and
equipment operation combinations that will not likely be encountered at the site. Finally, the
April 15, 2008 testimony of the applicant's acoustical engineer gave an example of an actual test
in a November 2005, showing that the switch out of equipment by Cascade Pumice had not
resulted in an exceedance of DEQ noise control standards. Accordingly, the Board will not
specify the exact equipment to be used, but will require, as a condition of approval, that applicant
submit periodic noise reports from its sound engineer to document ongoing compliance based
upon the equipment being used at the time, as was required for Cascade Pumice under the SP -95-
010 approval.
17 Both the pumice crusher and the rock crusher have attached screening plants, so any reference to the crushing
equipment will refer to the associated screening plant as well.
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Other opponents questioned whether the eight noise receivers selected by applicant's experts for
modeling were inclusive enough to demonstrate compliance at all the surrounding noise -
sensitive uses. The Board finds from Mr. Standlee's December 18, April 15, 2008, and January
20, 2009, memos that the eight noise receivers chosen in the December 2007 noise study were
representatives of the worst case in each direction surrounding the proposed mining operation
and that accordingly, if the noise control standards were met at each of the identified noise
receptor, necessarily the DEQ noise standards would be satisfied at the other noise - sensitive uses
in that same general direction. For example, a representative of the Davenports questioned why
no noise measurements or modeling was done with respect to the Davenport house. Mr.
Standlee responded in his April 15, 2008 memorandum that the Davenport house was located
further away in the same general direction as the Hamilton house (Noise Receptor 5) and that
with a showing that noise standards were met at the Hamilton residence, it was safe to assume
that the standards were met at houses further away, such as the Davenport residence.
On appeal, the Hoffmans' attorney suggested that no analysis was done to determine compliance
with reference to the pre -1990 dwellings. A review of Mr. Standlee's noise December 18, 2007
noise report and applicant's February 19, 2008 burden of proof shows that the Hoffnans'
assertions in this regard are unfounded. As exemplified by Mr. Standlee's inclusion of the pre -
1990 Hoffman residence (Reference No. 7), the Todd residence (Reference No. 1), the former
Kemple residence (Reference No. 3), the Hamilton residence (Reference No. 5) and the Zuber
residence (Reference No. 6) in his report, his analysis considered nearby noise - sensitive use
regardless of the date the dwellings were constructed. This recognizes that the DEQ noise
control rules do not recognize any distinction between noise- sensitive uses existing as of July 12,
1990 or those that were built after that date. See, e.g. OAR 340 - 035- 015(38), OAR 340-035 -
035(3)(b).
Some opponents questioned whether the trails at the nearby Tumalo State Park should be
considered to be noise- sensitive uses. The Board finds that the definition of noise - sensitive use
is tied to a structure in which sleeping takes place and that the Tumalo State Park trails do not fit
that definition. With regard to noise impacts in the campground area of the park, even if the
sleeping areas of the state park are assumed to be noise sensitive uses, the Board finds from the
April 15, 2008 report of applicant's noise engineer that applicable DEQ noise standards are met
for those areas of the state park.
The Hoffinans argued before the Hearings Officer and on appeal that it was not appropriate to
exclude the on -road haul trucks from the noise analysis. The Hearings Officer found that, under
OAR 340 - 035- 0035(5)(c) for new noise sources at previously used sites, the engine and road
noise made by such vehicles is not covered by the DEQ noise regulations. The Board agrees. As
noted above, the evidence of the site's prior use shows that the site falls within the "previously
used" classification under DEQ rules and accordingly, the DEQ rules leave no basis for
including the noise of on -road haul trucks. The Board finds that its decision on this issue here is
consistent with its decision on the same issue in the appeal of SP- 95 -10.
Other neighbors objected to hearing the back -up warning beepers on the equipment. The Board
finds, as did the Hearings Officer, that such beepers are exempted from consideration under the
noise control standards. OAR 350- 035- 0035(5)(b).
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From the foregoing, the Board concludes that, as conditioned, applicant's proposal meets this
approval standard.
Hours of Operation.
1. Mineral and aggregate extraction, processing and equipment operation
is limited to the following operating hours:
a. Surface mining sites located within one -half mile of any noise -
sensitive use or structure existing on the effective date of
Ordinance No. 90 -014: 7 :00 a.m. to 6 :00 p.m. - Monday through
Friday and 8:00 a.m. to 5:00 p.m. - Saturday.
b. All other sites: 7 :00 a.m. to 10 :00 p.m. - Monday through
Saturday.
2. No surface mining operations shall be conducted on Sundays or the
,following legal holidays: New Year's Day, Memorial Day, July 4th,
Labor Day, Thanksgiving Day, Christmas Day.
FINDING: As indicated in the applicant's February 19, 2008 burden of proof, there are at least
6 dwellings located within one -half mile of the property that were established before July 12,
1990. Because of the proximity of these dwellings within one -half mile of the surface mining
activity, the Board finds that the limitations under (1)(a) and (2) above apply. Consequently, the
operating hours for the site must be limited to comply with the restricted operating hours:
Monday through Friday 7:00 a.m. to 6:00 p.m., Saturday 8:00 a.m. to 5:00 p.m. and no
operations on Sundays. Additionally, no surface mining operations are allowed to be conducted
on the following legal holidays: New Year's Day, Memorial Day, July 4th, Labor Day,
Thanksgiving Day and Christmas Day. Compliance with these operating hours is made a
condition of this approval. The Board finds that it is permissible for the applicant to operate the
water truck and the water system outside the prescribed operating hours to minimize blowing
dust since the purpose of such operations is to control dust and not to produce additional dust.
The opponents argued before the Hearings Officer that since the applicant was proposing to
expand operating hours from the hours specified in the SP -95 -010 pennit, the analysis under
DCC 18.52.115 should be applied. As noted above, the hours specified in SP -95 -010 were a
self - limitation chosen by Cascade Pumice that was less than the hours that they could have
operated under the Code. The Board finds that no special analysis is needed for the applicant to
operate during hours authorized by the ordinance.
J. Drilling and Blasting.
1. Drilling and blasting are allowed under the site- specific ESEE analysis
in the surface mining element of the Comprehensive Plan.
FINDING: The Board finds from the Hearings Officer's decision that staff and the applicant
believe that drilling and blasting are included in the "process of mining" described in DCC
18.04.030 and therefore drilling and blasting would be permitted at the site, because they are
included the definition of "processing ". In SP 95 -10, the Hearings Officer concluded that
"blasting" is permitted only if it is specifically allowed by the site specific ESEE analysis. The
CU -07 -102, SP -07 -46 (MA -08 -3, MA -08 -4) A- 08 -14, A -08 -20 Page 54
applicant and staff disagree with this conclusion, but concede that the conclusion need not be
addressed in this decision, as blasting is not proposed. Consequently, the Board declines to
consider the question in this instance, other than to note that blasting is not approved at this time
because applicant proposes to dislodge mined material by an excavator.
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 this title,
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.
FINDING: The applicant proposes to create a series of extraction sites that do not exceed five
acres. The applicant concedes that in SP- 95 -10, the applicant agreed to limit its mining activities
to an area no larger than 160,000 square feet,18 and notes that its operations are not anticipated to
be significantly larger. However, the applicant requests that it be allowed the flexibility to mine
to the limits of this standard, rather than be circumscribed by the limits of the 1995 application.
The Hearings Officer agreed with the applicant that SP -95 -10 does not preclude the proposed
five acre extraction area and the Board concurs. A condition of approval will ensure that this 5-
acre limitation is met.
The Board notes that there was much concern expressed by the opponents about whether this
standard was being met by the existing operation. The opponents appear to believe the standard
means that no more than 5 acres of the site can be disturbed at any time. The Board finds that,
by its terns, the 5 -acre limitation is expressly limited to "areas in which extraction is taking
place" and does not include areas that are used for stockpiling, equipment storage, access roads,
accessory uses such as the water tank or weigh scale areas. The Board finds from the
compliance report of the County's code enforcement officers dated April 2008 that the current
operation is in compliance with the existing standard and that compliance with the 5 -acre
limitation, as proposed, is feasible.
The opponents have faulted the applicant for not detailing exactly where and in what sequence
the 5 -acre cells are going to be excavated. The applicant contends that the transitory nature of a
mining operation makes it impractical to establish such details in a mining site plan. The Board
agrees with the applicants and finds that a site plan detailing where each cell is to occur is not
required in order to demonstrate compliance with this approval criterion. The current operation
of the pit, with a limited area for extraction, shows that it is feasible to conduct mining at this site
with a limited extraction area and that accordingly, approval may be subject to a condition that
excavation areas are not to exceed 5 acres in size and does not include the headwall.
18 The Board notes that the applicant's site plans erroneously retain a reference to typical slot sizes being 160,000
square feet. At the Hearing, the applicant indicated that there references were to be ignored. Accordingly, the
Board finds that any references on site plans maps to mining areas being limited to 160,000 square feet is an error
and should be ignored.
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L. Fish and Wildlife Protection.
Fish and wildlife values and habitat required by the site specific ESEE
analysis to be conserved and protected are conserved and protected by
use of methods including, but not limited to: Seasonal operations and
access road closures; retention of or creation of vegetative cover and
riparian habitat; and erection of fencing or other barriers to protect
wildlife from steep extraction site slopes.
2. Mitigation, as defined in DCC 18, will be provided to compensate for any
loss of fish and wildlife habitat caused by the surface mining activity
which habitat is required to be protected by the site - specific ESEE
analysis. When mitigation is provided, the type and effectiveness of
mitigation required has been determined by the Planning Director or
Hearings Body to be appropriate from available evidence and in
consultation with the Oregon Department of Fish and Wildlife.
FINDING: The Board finds this provision requires protection of fish and wildlife resources
only if they are required by the site - specific ESEE to be protected. While the Program to Meet
the Goal for the Site 303 ESEE initially included wildlife protection measures indicated in an
ODFW letter of August 10, 1989, that provision was deleted by Ordinance 92 -044, adopted by
the County Commissioners on August 5, 1992. This deletion removed the wildlife restrictions
for this site, as it was not located within a Wildlife Area (WA) combining zone.
Ordinance No. 92 -044 incorrectly states that the ESEE analysis identified a bald eagle nesting
site in this area. However, the findings for the ESEE state, on page 2, under Natural Resources,
the following:
"1. Wildlife. The Department of Fish and Wildlife has identified this site for deer
winter range, with medium frequency of use. The surrounding properties all have
a Wildlife Area combining zone, indicating that this area is part of the. Tumalo
winter deer range. There is also medium sensitive raptor use in the area.
Neighborhood residents testified to seeing eagles in this area."
This finding does not indicate a bald eagle nesting site, only that eagles were observed in the
area. Accordingly, no protection of eagle nesting areas is required.
The Board finds from the foregoing that the site does not include fish and wildlife values
protected by the Site 303 plan. Therefore, this standard does not apply.
M. Surface water management is provided in a manner which meets all applicable
DEQ water quality standards and DOGAMI requirements, and which
demonstrates that all water necessary for the proposed operation of the surface
mine, including dust control, landscaping and processing of material, has been
appropriated to the surface mining site and is legally available for such use.
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The applicant must provide written documentation of any water rights from the
respective water district and Oregon Watermaster's office prior to any mining
of the site.
FINDING: The Board finds this criterion addresses two issues: (1) protection of water quality
through appropriate surface water management and (2) demonstration of an adequate source of
water for dust control, landscaping and processing of material. The Board finds that the subject
property has no surface water rights and has no streams or lakes associated with it.
Protection of Water Quality. The Board finds that by its terms, the water quality aspect of this
provision relates to management of surface waters so that all applicable DEQ water quality
standards and DOGAMI requirements are met. The Board finds that in the absence of any
stream or lakes associated with the property, issues of surface water management relate to
control of storm waters and waters expelled by the proposed wash plant and retention of such
waters on the site. The Board finds that the topography of the area to be mined as shown on the
site plan (located in a bowl between properties to the north and south and west), the proposed
100 -foot setbacks from the property lines and the buffer between the mining area and the east
property line allows for such waters to be contained on site. Accordingly, the Board finds that
surface waters within the petiiiit area will be retained on site and there will be no discharge of
waters to the surface waters of the state, such as the Deschutes River to the east. As set forth
below, the Board finds from DOGAMI's letter of May 6, 2008, that control of surface water on
the site meets DOGAMI requirements.
As noted previously, the opponents raised an issue about stolen water flowing off the property
onto the Hoffman property from the easterly portion of the property formerly mined by Cascade
Pumice. For its response to that issue under this criterion, the Board adopts and incorporates by
reference its prior responses to that issue under subsections (D) and (E) above.
With respect to control of wastewater on the site, the Board finds that the only source of such
wastewater is the wastewater for the proposed wash plant. Applicant proposed to dispose of
such waste water by sprinkling the discharge from the wash plant over stock piles, roads and
mulched areas as part of its dust abatement program. Because such discharge is proposed to
occur and fall within the limits of the site, there will be no discharge of such waters to surface
water. The Board finds from applicant's January 21, 2009 submittal that the applicant received a
WPCF -1000 permit from DEQ for disposal of its wastewater.
Adequacy of Appropriated Amount of Water. With respect to adequacy of water for dust control
and processing, the Board finds that an existing well, located on the northwest corner of the site,
provides water for material washing and dust control. The well was permitted by the Oregon
Water Resources Department on October 28, 1996 (File no. G- 13903). A copy of the permit was
attached as Exhibit 17 to the February 18, 2008 revised burden of proof. The No. 9845 well
report (well log) for this well was provided to Cascade Pumice on April 20, 1995. The permit
lists the maximum rate of allowed use as 0.45 cubic foot per second, with year round use
allowed, which according to the October 28, 1996 final order in the record approving the permit
amounts to a flow of 200 gallons per second. Water pumped from the well is stored in a 12,000 -
gallon water tank on site, where it is available for distribution by water truck or otherwise for
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dust suppression or for processing the arena sand product. A water meter for the system
confirms that the water flow from the well is 200 gallons per minute.
In support of its contention that there was adequate water for dust suppression, the applicant
supplied an analysis and map done by DEA with its May 20, 2008 submission that analyzed the
number of disturbed, untreated acres of exposed earth, worst case evaporation rates in the height
of the summer, the capacity of the well and water tank to produce water, and the applicant's
ability to distribute water to exposed areas on the site. The analysis showed that there is more
than enough water available to replace moisture lost to evaporation on the untreated exposed
areas. The analysis included areas such as the rock pile that according to applicant does not
require much water on a daily basis in order to control dust. Based upon such evidence, the
Hearings Officer found that the evidence supported a conclusion that the well permit and the
water produced by the well were adequate to provide sufficient water for dust suppressant for the
applicant's mining activities. Upon review of the evidence and the arguments of the parties, the
Board agrees with the Hearings Officer.
The Board finds the applicant's calculations do not consider the use of water at the same time for
wash plant activities. However, the Board finds that the DEA analysis was a worst case analysis,
assuming the highest annual evaporation amounts and the need to water all exposed areas
equally, even though some areas such as the rock pile do not need such frequent treatment. In
addition, the DEA analysis indicated that additional water was available over and above that
shown to be needed for dust suppression activities. Furthermore, the applicant proposes to
sprinkle the waste water on the site to aid in dust suppression efforts, which will complement the
applicant's water program with the water truck. Accordingly, the Board finds that there is excess
water available for running the wash plant. How much of an excess there is at any given time
would depend upon environmental conditions. The Board will condition its approval on a
limitation on use of the wash plant to require that use of the wash plant be curtailed when there is
not sufficient water available for dust suppression activities.
Representatives of the Tumalo Rim Water Improvement District argued that withdrawals from
the applicant's well could adversely impact the District's drinking water wells located 1,800 feet
to the north. The District argued that an adverse impact to the District wells, which pre -date the
applicant's well, could cause curtailment in the use of the applicant's well. The Board finds
from the email exchange in the record between Oregon Department of Water Resources
employee Kyle Gorman and applicant's attorney that there are sufficient ground water resources
in the area that such an eventuality is unlikely to ever occur.
The Water District and neighbors who are supplied water by the District also argued that the
applicant's operation threatened the water quality of their water supply system, due to the
potential for contamination of the water supply. The District introduced a copy of the State of
Oregon Drinking Water Program's Source Water Assessment Report (SWAR) for the District's
water supply. That report indicated that the applicant's mine site was located above the area in
which ground water travels to the District's wells and that contamination of ground waters in this
area could migrate to the District's well head within a two -year period of time. The District's
president, who is a retired geologist, expressed the opinion, based on the information presented
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in the SWAR that discharges of contaminants, such as fuels or lubricants, on the surface could
percolate through the soils into the groundwater.
The Board recognizes the District's concerns, but finds that neither this standard nor any other
standard of approval under the DCC Chapter 18.52 mining site plan regulations address those
issues. As set forth in its discussion below under DCC 18.52.110(P), the Board finds that issues
of groundwater quality simply were not addressed in the ESEE for Site 303, in the Program to
Meet the Goal for the Site or in any of the DCC 18.52 regulations intended to implement the
ESEE's Program to Meet the Goal. This is not to say there are no other laws available to address
the District's concerns. The Board finds, as applicant mentioned in its rebuttal, that there are
statewide programs administered by DEQ that require reporting and clean -up of spills of
hazardous materials.
Even if such impacts were appropriately before the Board under the mining site plan approval
criteria, the Board agrees with the Hearings Officer's conclusion that such concerns have
adequately been addressed by the applicant. The applicant submitted testimony from Siemens &
Associates, based upon review of well logs in the area and more site specific information than
the more generalized information found in the SWAR, indicating it was their opinion that the
geology of the site should provide adequate protection for ground water at the site. In addition,
the Applicant submitted a proposed Emergency Response Plan (Exhibit 7 of the modification
submittal) and a set of best management practices for handling vehicle refueling and vehicle
maintenance activities at the site (Exhibit L to the Pat McClain May 6, 2008 submittal).
Furthermore, in response to concerns expressed about contamination of groundwater from the
applicant's wellhead — located more than 500 feet from the boundary of the mining site, but only
120 feet from Johnson Road — the applicant agreed to place barriers around the wellhead to
prevent applicant's vehicles that service and operate the well from damaging the wellhead. In
light of applicant's agreement to undertake such activities, the Board will make such best
management practices a condition of approval.
The District also expressed a desire that its well and the applicant's well be tested for the
presence of contaminants. Applicant did not offer to undertake such testing, and in light of the
lack of any basis in the approval criteria under DCC Chapter 18.52 to support any such
requirement, the Board declines to require applicant to conduct such testing. It there are issues
related to monitoring of groundwater in the event of spills, those are matters for DEQ to regulate
under its authority to require reporting and remediation of spills of hazardous materials.
N. Storage of equipment, structures and other materials at the site is limited to that
which is necessary and appurtenant to the mining operation or other uses
permitted on the site.
FINDING: As set forth under DCC 18.52.040, the applicant demonstrated to the Board's
satisfaction that the excavation and loading equipment, water trucks as well as the screening and
wash equipment, the water tank and other water supply infrastructure, weather station and the
proposed weigh scale and scale house are necessary and appurtenant to the mining operation and
accordingly, on -site storage of such equipment is allowed. In addition, the Board finds, as noted
by the Hearings Officer, that dump trucks and other trucks for hauling materials to transport
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excavated material on site and off are necessary and appurtenant to the proposed mining
activities and are allowed to be on site.
The applicant applied for conditional use approval for two kinds of crushing equipment to be
used on site, a roll crusher for crushing pumice and an impact crusher for crushing incidental
aggregate and large pieces of welded tuff that are too large to pass through the roll crusher. The
Board finds from the testimony of the applicant that when the pumice is excavated it comes out
in a variety of particle sizes known as "pit run" pumice. The screening equipment is necessary in
order to segregate the pit run pumice by size. The roll crusher is necessary and appurtenant to
the mining operation to further resize the pumice into three different sizes for specific products
for particular applications or consumers. The Board finds from the testimony of the applicant
that the roll crusher is not well suited for crushing harder materials such as aggregate and cannot
accommodate rock fragments larger than two inches in diameter, such as welded tuff that is
found on site. The opponents have questioned the necessity of allowing a rock crusher on site.
The Board finds, from the testimony of the applicant's representatives and the pictures of large
pieces of tuff shown on the tuff stockpile, that the rock crusher is justified and is necessary and
appurtenant for applicant's mining operation.
The Board notes that the Hearings Officer observed during her site visit what appeared to be
employee vehicles on site. The Hearings Officer did not address these vehicles in her final
conclusions, likely because such vehicles are not stored on site but are present only during times
when employees are on site. The Board finds that the presence of such vehicles does not
constitute "storage" and therefore is not prohibited by this section.
The Hearings Officer imposed a condition of approval to limit the equipment stored on the site to
those described in the modified application. The Board will impose a similar condition.
O. A security plan for the subject site has been submitted and approved by the
county and, where appropriate, by DOGAMI which addresses the following
issues:
1. Lighting;
2 Fencing;
3. Gates at access points;
4. Water impoundments;
5. Sloping; and
6. Security of vehicles and equipment
FINDING: The Board finds that the following elements constitute the applicant's security plan:
Fencing: According to the site plan, the site is fenced along the north and west
boundaries. This will restrict access to the property from points along Johnson Road. In
addition, the headwall area is fenced.
Gates at access point: The only access point along Johnson Road is gated, allowing
ingress and egress, while keeping the public out.
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Lighting: None provided and none needed, since no operations occur at night, stored
equipment is not visible to the public from public roads and public access is limited by fencing
and gating those portions of the site near Johnson Road.
Security of vehicles and equipment: All vehicles and equipment located on site out of
view and behind fencing.
Water impoundments: None, except for a water tank located on site. Water tank is in no
danger of breach or failure.
Slopes: Slopes on the excavated portion of the site are located well away from nearby
properties. Public access to sloped area from Johnson Road is limited by fencing. The area
above the headwall is fenced. The headwall will be maintained in accordance with DOGAMI
requirements.
The applicant explained that the elements of its described security plan were essentially what
was allowed by the County in the permit issued to Cascade Pumice under for SP -95 -010. The
Hearings Officer's decision gave tacit approval to applicant's security measures. The Board
finds that the elements cited by the applicant in response to this provision provide adequate
protection for the public. The site is fenced along those sides where the public could gain access
and entrance by road is controlled by a gate. Most of the site is flat and sloped areas associated
with mining are away from property lines and public access is limited by fencing along the
Johnson Road side. In addition, the applicant fenced the area above the headwall. No open
water impoundments exist or are planned. The Board finds that applicant has a DOGAMI-
approved reclamation plan for the site. DOGAMI visited the site, most recently in May 2008,
and concluded that the applicant is in compliance with its reclamation plan.
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.
FINDING: The Board previously found that, in compliance with OAR 660 -016- 0010(3), which
requires any resolution of conflicts to be implemented only by measures containing clear and
objective standards, that the scope of this provision is limited by the ESEE's Program to Meet
the Goal, found on Page 12 of the ESEE in Paragraph 23, which sets out the specific conditions
for the Board's resolution of identified conflicts under which mining is allowed as are conflicting
uses and resources. As explained previously, this provision in conjunction with DCC 18.52.020
and DCC 18.52.100 allows the application of those elements of the ESEE's Program to Meet the
Goal that are either not included in the setbacks, standards and conditions of DCC Chapter 18.52
or that are in conflict with those standards. Where the provision of the Program to Meet the Goal
are implemented by the provisions of the DCC Chapter 18.52, satisfaction of the implementing
zoning ordinance criteria satisfies the corresponding Program to Meet the Goal provision.
As set forth above, the specific requirements established in the "Program to Meet the Goal"
(page 12) for SM Site #303 are as follows:
CU -07 -102, SP -07 -46 (MA -08 -3, MA -08 -4) A- 08 -14, A -08 -20 Page 61
a. Setbacks shall be required for potential conflicting residential and other
development;
b. Noise and visual impacts shall be mitigated by buffering and screening,
with particular attention paid to screening from Tumalo State Park or the
eastern, northeastern and southeastern boundaries;
c. Hours of operation shall be consistent with DEQ standards and applicable
county ordinances;
d. Wildlife restrictions set for in ODFW's letter of August -10, 1989, shall
apply (This requirement was deleted as part of Ordinance 92 -044 adopted
by the County Commissioners on August 5, 1992.)
e. Excavation shall be limited to five acres with ongoing incremental
reclamation (subject to DOGAMI review and approval);
f. Mining operations, including placement of processing operations and
equipment and excavation and transport of material shall meet all
applicable DEQ noise and dust standards;
The Board finds that processing on site will be allowed.
As previously noted, Condition (d) was removed by legislative action through an amendment to
the County's comprehensive plan adopted by Ordinance 92 -044. All other conditions remain in
effect.
The Board finds that all of the specific conditions in the Program to Meet the Goal are either
implemented through the provisions of DCC Chapters 18.52 and 18.56 or are provisions over
which the Board has no authority, as set forth below.
With respect to ESEE Condition (a) the Board finds that the setbacks specific to potential
conflicting uses are set forth in the SMIA zone provisions DCC 18.56, which have no bearing on
the applicant's proposed mining operation. The Board finds from the express language of the
provision that its intent is to regulate potential conflicting uses, such as new residences. As such,
this condition has no implication for applicant's proposal other than that new conflicting uses
must observe stated setbacks.
With respect to ESEE Condition (b), the Board finds that this provision was fully implemented
through the provisions of DCC Chapter 18.52, specifically DCC 18.52.090 (setbacks), DCC
18.52.110(B) (screening) and DCC 18.52.140(A) (setbacks and buffering for crushing
equipment). An issue raised by the opponents about whether the ESEE's requirement that
"particular attention [be] paid to screening from Tumalo State Park or the eastern, northeastern
and southeastern boundaries" of the site is addressed by the condition prohibiting further mining
of the headwall. The Board found previously in this decision that this provision sets no
independent performance standard for screening and that in the ESEE findings in Paragraph 24
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the Board indicated with respect to the Site 303 Program to Meet the Goal that "the screening
and buffering requirements are met by the screening and buffering requirements in the Deschutes
County zoning ordinance, as amended by Ordinance 90- 014." The Board finds that at most, that
provision calls attention to the existence to a conflicting use for which the implementing
ordinance provides a measure of protection. As noted in the findings above in response to DCC
18.52.090, 18.52.110(B) and below in response to DCC 18.52.140, the Board found that the
provisions of the implementing ordinances are satisfied.
With respect to ESEE Condition (c), the Board finds that the condition was fully implemented
through DCC 18.52.110(I) of the implementing County zoning ordinance, which established
hours of operation. In its findings in response to DCC 18.52.110(I), the Board finds that the
provision of that standard are or can be satisfied. A condition of approval requiring adherence to
those hours is imposed in this decision, and any violation of this can be reported to County Code
Enforcement for enforcement.
With regard to ESEE Condition (e), the Board finds this provision was implemented through
DCC 18.52.110(K) of the zoning ordinance to the extent the County has authority to regulate
issues related to reclamation. As set forth above, the Board finds that in cases such as this where
the site is subject to DOGAMI jurisdiction the County has no authority to regulate reclamation.
In this case, the applicant proposes to extract no more than five acres at a time, in accordance
with the Program to Meet the Goal. Compliance will be governed through a condition of
approval of the site plan.
With regard to ESEE Condition (f), the Board finds that this provision was fully implemented
through DCC 18.52.110(H) (as to noise) and DCC 18.52.110(C) (as to dust) and DCC 18.52.140
(with regard to noise from the proposed crusher). In its findings in response to those sections,
the Board found that applicant's proposal meets the implementing zoning ordinance standards.
The Board finds that the opponents have sought to bring other issues from the ESEE to bear
through this provision, such as truck traffic issues, visual impacts related to dust, scenic
waterway issues and water quality issues. As set forth above, unless an impact or issue was
resolved through the ESEE's Program to Meet the Goal, either through implementation by a
specific provision of the site plan criteria of the zoning ordinance or through an independent
condition of the Program to Meet the Goal (made applicable through DCC 18.52.020, 18.52.100
or this section), there is no basis under this criterion to make such impacts applicable to the site
plan.
In her findings under this criterion, the Hearings Officer concluded that the impacts on the
Tumalo Rim Water Improvement District well need not be . considered under this standard
because the district's well was constructed after the adoption of the Site 303 plan. The Board
finds from the District's testimony that the Hearings Officer was in error and in fact the district's
well was constructed prior to the adoption of the ESEE for Site 303. However, the Board
reaches the same result as the Hearings Officer on this issue, but for different reasons. As
expressed earlier, the Board finds that the potential impacts on the District's well cannot be
considered in this case because the impacts on groundwater and the District's well were not
CU -07 -102, SP -07 -46 (MA -08 -3, MA -08 -4) A- 08 -14, A -08 -20 Page 63
addressed as a conflicting use in the ESEE's program to meet the Goal and not addressed by any
specific standards in the implementing zoning ordinance provisions.
From all of the above, the Board finds that this provision is satisfied.
9. Sections 18.52.115, Extended operating hours, and 18.52.120, Partial approval.
FINDING: The applicant is not requesting extended operating hours or partial approval. These
sections are not applicable to the proposed applications.
10. Section 18.52.130. Site reclamation plan.
Prior to the start of mining activity, a site reclamation plan shall be submitted and
approved which demonstrates that the mineral and aggregate extraction site can be
reclaimed for a subsequent beneficial land use consistent with the designation of such
subsequent use in the surface mining element of the Comprehensive Plan.
A. When a site reclamation plan is required by DOGAMI, the site reclamation
plan shall be approved by DOGAMI. To the extent practicable, review of the
site reclamation plan shall be conducted jointly between DOGAMI and the
county.
B. When a site reclamation plan is not required by DOGAMI, the site reclamation
plan shall be approved by the County in conjunction with 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.
FINDING: As noted above and by the Hearings Officer, the applicant and opponents dispute
whether this criterion and state law pennit the county to impose reclamation standards for sites
that are subject to DOGAMI regulation. The Hearings Officer concluded that in cases such as
this, where the site is subject to DOGAMI control, the only role the County has is to ensure that
the reclamation plan proposes an ultimate use that is consistent with the County's post -
reclamation plans for the site. The Hearings Officer found that no post - mining use of the site
had been identified in the comprehensive plan and that in the absence of that designation, the
applicant's proposal was consistent with the plan's post- mining use requirements. The Board
agrees with the Hearings Officer. With regard to the incremental reclamation issue, for the
reasons cited in its discussion above, the Board finds that it has no basis to regulate reclamation
matters in general and in particular matters related to ongoing incremental reclamation. The only
authority the County has is to withhold issuance of a use pennit until -the applicant submits a
DOGAMI approved reclamation plan. The Board will require as a condition of approval that the
applicant submit an approved DOGAMI reclamation plan consistent with this site plan approval.
CU -07 -102, SP -07 -46 (MA -08 -3, MA -08 -4) A- 08 -14, A -08 -20 Page 64
The issues addressed by the Hearings Officer in response to this criterion relative to the concerns
of the Tumalo Rim Water Improvement District have been addressed elsewhere in this decision.
To the extent the Tumalo Rim Water hmprovement District believes that DOGAMI should be
taking action to protect the ground water, the District needs to take that issue up with DOGAMI.
11. Section 18.52.150, Failure to comply.
If the Planning Director or designee determines that surface mining activity which has
received site plan approval is not being conducted in compliance with the setbacks,
standards or conditions set forth in DCC 18.52.090, 18.52.110 and 18.52.140,
respectively, or the site plan, the Planning Director or designee may institute
enforcement proceedings to require such compliance. Enforcement may include citing
for a violation, injunction proceedings, and any other measures permitted under DCC
18.144.
FINDING: A condition of approval is imposed to this effect.
12. Section 18.52.170. Use permits.
Following site plan approval and prior to starting any surface mining activities on the
site, the Planning Director or designee shall physically review the site for conformance
with the site plan. When it is determined by the Planning Director or designee that all
elements of the approved site plan required for mining have been completed and the
reclamation plan has received .final approval, the Planning Director or designee shall
issue a use permit. No mining activity shall start prior to the issuance of such use
permit.
FINDING: The Board finds that a use permit for the new site plan will require approval from
the Planning Division prior to any processing occurring on site. As part of that approval, the
applicant will be required to submit a revised reclamation plan approved by DOGAMI consistent
with this site plan approval. The Board notes that mining activity is already occurring on the site
pursuant to SP- 95 -10, but that no processing shall occur on site until the use permit is issued.
Within 30 days of this decision becoming final or at the time the processing machinery is placed
on the property, whichever is later, planning staff shall conduct a site visit to ensure that the
pertinent conditions of approval are satisfied.
13. Section 18.52.180, Monitoring.
The Planning Director or designee shall periodically visit the surface mining site to
monitor the surface mining operation. If the Planning Director or designee determines
that the operation is not in compliance with the approved site plan and all setbacks,
standards and conditions set forth in DCC 18.52.090, 18.52.110 and 18.52.140, a
citation, for a violation shall be issued.
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Section 18.52.190, Nuisances.
Violations of the surface mining site plan, or the setbacks, standards and conditions set
forth in DCC 18.52.090, 18.52.110 and 18.52.140, respectively, are hereby declared
nuisances, and abatement action may be taken as specified in DCC 18.144.
FINDING: These applications are an attempt to remedy the alleged code violations in C -07-
180. If violations are found at the site relative to the site plan approved in this decision, code
enforcement proceedings can be instituted to obtain compliance. Monitoring of the operation
will be the responsibility of the Planning Division, in combination with DOGAMI personnel.
VI. FINDINGS OF FACT AND CONCLUSION OF LAW — CONDITIONAL USE
The Applicant filed a modified application to allow for crushing in three different locations on
the site, as shown on the site plan and identified in Figure 1 of the February 18, 2008 noise study.
As noted at the hearing on April 15, 2008, the proposed southeast processing location was
adjusted from the location proposed on the March 20, 2008 site plan to move the southeast
processing location 40 feet to the north to comply with the quarter -mile setback from the former
Kemple residence. The revised location is reflected in the April 15, 2008 site plan map showing
the quarter -mile setbacks. The Hearings Officer found that crushing was allowed for Site 303,
but found that only the southwestern crushing site met the approval criteria. The opponents
appealed the Hearings Officer's determination that crushing was allowed for the site. The
applicant appealed an underlying issue supporting the Hearings Officer's determination that
crushing should be allowed only at the southwestern location.
Under the criteria applicable to crushing activities, the applicant must demonstrate that (1)
crushing is generally allowed under the zoning ordinance and ESEE for the site; (2) that the
conditional use criteria are met and (3) that applicable setbacks and other applicable site plan
standards for crushing activities can be met.
1. Section 18.52.050. Conditional uses permitted
B. The following uses are permitted subject to site plan review and the setbacks,
standards and conditions set forth in DCC 18.52.090, 18.52.110 and 18.52.140,
respectively, and are not subject to the conditions of DCC 18.128:
1. Expansion or replacement if a pre- existing legal dwelling.
2. Crushing of mineral and aggregate materials on sites designated for crushing in
the ESEE analysis in the surface mining element of the Comprehensive Plan.
3. Sale of minerals and aggregate products extracted or produced on parcels other
than the subject parcel or contiguous parcels in the same ownership.
4. Batching and blending of mineral and aggregate into asphaltic concrete or
Portland Cement Concrete.
FINDING: The Applicant seeks conditional use approval to crush pumice, welded tuff and
incidental aggregate on the site, a use identified as a conditional use in the SM zones for sites
CU -07 -102, SP -07 -46 (MA -08 -3, MA -08 -4) A- 08 -14, A -08 -20 Page 66
designated for crushing in the ESEE for that site. The Hearings Officer found that crushing was
allowed under the terms of this provision and the ESEE for Site 303. Opponents disagreed and
the Hoffmans appealed this issue to the Board of County Commissioners.
The Board finds, and all parties and the Hearings Officer agree, that the portion of the ESEE that
is relevant here for determining whether crushing is "designated" in the ESEE analysis is the
Program to Meet the Goal, found at Paragraph 23 of the ESEE at Page 12. The reference to
allowing processing is found in the last sentence of the Program, as follows: "The Board finds
that processing on site will be allowed." As noted previously, under the Goal 5 rule, the Board's
decision as to how to resolve the conflicts identified and considered through the ESEE analysis is
established in the Program to Meet the Goal. At issue here is whether the Board's reference to
"processing" in the Program to Meet the Goal for Site 303 includes crushing. For the reasons set
forth below, the Board disagrees with the opponents and supports the Hearings Officer's
determination that the site was designated for crushing in the ESEE for Site 303.
Accordingly, the Board finds that, read in the proper context, the reference to "processing" in
Paragraph 23 of the ESEE clearly includes crushing. Although the Hearings Officer found the
reference to "processing" in the Program to Meet the Goal to be ambiguous, the Board finds that
the context resolves any perceived ambiguity and there is no need to inquire further into the
Board's intent by its use of the term "processing" by reference to legislative history. Similarly,
the Board finds that there is no conflict between the ESEE and the definition of processing found
in the zoning ordinance; accordingly, there is no need to refer to invoke DCC 18.52.020 to
resolve a conflict between those two documents..
2. Section 18.52.140. Conditional use criteria
The criteria set forth in DCC 18.52.140 shall be the only conditional use criteria applicable
to the surface mining activities described below. Compliance with these criteria shall be
demonstrated at the time of site plan review.
A. Crushing. When a site has been designated for crushing of mineral and aggregate
materials under the site - specific ESEE analysis in the surface mining element of the
Comprehensive Plan, the following conditions apply:
1. If a crusher is to be located less than one -half mile from a noise - sensitive use or
structure existing on the effective date of Ordinance No. 90 -014, the applicant shall
demonstrate through a noise report from a qualified, registered sound engineer or
similarly qualified professional, that the crusher can meet all applicable DEQ
industrial and commercial noise control standards as designed and located, or by
methods including, but not limited to: Modification or muffling of the crusher;
placement of the crusher below grade or behind berms.
2. If a crusher is to remain on the site for longer than 60 days in any 18 -month period,
the applicant shall demonstrate that it will be screened in accordance with DCC
18.52.110(B).
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FINDING: For the reasons set forth above, the Board finds that the ESEE for Site 303
"designated" the site to allow for crushing of mineral and aggregate materials. Accordingly,
crushing is allowed if the approval criteria and setbacks are satisfied and the crushers remain at
the southwestern site.
The first conditional use approval criterion for crushing requires applicant to demonstrate
compliance with applicable DEQ noise standards in the event that a crusher is proposed to be
located within one -half mile of a noise - sensitive use or structure existing on the effective date of
Ordinance 90 -014. In this case, the Board finds that the proposed crushing locations would be
located within one -half mile of one or more noise - sensitive uses that existed as of July, 12, 1990,
the effective date of Ordinance 90 -014, including the pre -1990 Hoffman residence, the Todd
residence, the former Kemple residence and the Zuber residence, all of which have been
identified earlier in this decision as nearby noise - sensitive uses. The Board previously found, in
response to DCC 18.52.110(H), that the mining operation, including rock crushing and screening
equipment at three alternative sites, met applicable DEQ noise standards. The Board relies on
those findings to show compliance with DCC 18.52.140(A)(1) and hereby incorporates those
findings in this response as if fully stated herein.
The Board finds from the sound engineer's report that a pumice crusher and a rock crusher may
be used at the one approved crushing location. From the modeling assumption that both crushing
plants can be used simultaneously at the southwestern location and Mr. Standlee's testimony of
April 15, 2008 that a wash plant can also be used at that site, the Board finds that all three could
be used simultaneously at the southwestern processing location. As noted previously, this
approval will be conditioned accordingly. Additionally, the Board finds that the southwestern
processing site presents less impact form the adjacent dust - sensitive uses.
The second conditional use criterion requires the applicant to demonstrate that any crusher will
be in compliance with the screening requirements of DCC 18.52.110(B). The Board finds that
due to the location of the proposed southwestern crushing site in the bowl of the applicant's
mining site and the existing of intervening ridges and vegetation, the approved processing site
would be screened from most protected uses. For the reasons set forth in the findings under
DCC 18.52.110(B), which are incorporated herein by reference, the only protected uses that need
be considered are the two pre -1990 dwellings located in the impact area across the Deschutes
River in between Highway 20 and Tumalo State Park and the upper elevation areas around the
knob in Tumalo State Park. The applicant proposed to screen the processing equipment in the
southwestern location behind the existing stockpiles. The Board finds that screening is feasible,
noting from the contoured site plan map the existence of an existing berm at the southeast
processing site and the need to excavate down at that site to expose the pumice.
3. Other site plan criteria of DCC 18.52.090 and DCC 18.52.110
The Board adopts by reference its findings of compliance with the setbacks and operational •
standards of DCC 18.52.090 and DCC 18.52.110 to the extent that such standards are
individually applicable to the proposed crushing locations.
VII. DECISION:
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Based on the findings of fact and conclusions of law set out above, the Board concludes that the
applicant demonstrated that all applicable approval criteria have been satisfied or can be satisfied
through the imposition of conditions of approval. Accordingly, CU- 07- 102/SP -07 -46 (MA 08-
3/MA 08 -4) is APPROVED, subject to the following conditions of approval:
1. The mining operation approval is based on the site plan map submitted on March 20,
2008 as supplemented on April 15, 2008, showing the proposed mining boundaries, one -
quarter mile setbacks from five pre -1990 dwellings, the one southwestern processing site,
the existing well and water tank sites, the location of the proposed weigh scale and scale
house, and so forth and the proposed operations, including the location and types of
materials to be mined and processed, the hours of operation, and the proposed mitigation,
as modified by the applicant and through this decision and associated conditions of
approval, including the prohibition on mining the headwall. Any substantial change to
the plan shall require new land use applications.
2. No stockpiling of mined material for sale shall be located within the quarter -mile
setbacks shown on the April 15, 2008 site plan map, except as allowed for stockpiling of
mined resources within quarter -mile of the former Kemple residence.
3. Storage of equipment is allowed only outside the quarter -mile setbacks shown on the
April 15, 2008 site plan map and behind sight- obscuring earthen berms when otherwise
visible to the upper elevation trail area of Turnalo State Park and the pre -1990 dwellings
located within the impact area east of the Deschutes River.
4. Operation of processing equipment is allowed at the southwestern location identified on
the April 15, 2008 site plan map or anyplace within the area bounded by that site.
5. Natural terrain and vegetative features outside the mining area on the SM zoned property
shall be retained to buffer the mining activity from the surrounding area, except for
existing roads shown on the site plan.
6. The owner /operator shall be restricted to conducting mining operations between the hours
of 7:00 a.m. to 6:00 p.rn., Monday through Friday, and 8:00 a.m. to 5:00 p.rn. Saturday.
Mining operations shall not occur on Sundays or the following legal holidays: New
Year's Day, Memorial Day, July 4th, Labor Day, Thanksgiving Day, Christmas Day. Use
of the water truck outside those hours shall be allowed as needed to suppress dust.
7. No drilling or blasting is permitted as part of this approval.
8. The owner /operator shall limit the extraction area to an area of no greater than five acres
at one time. For purposes of counting acreage, extraction areas do not include roads,
equipment storage areas, processing equipment sites, stockpiles, areas where reclamation
is in progress and other accessory uses that are necessary to the mining operation.
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9. The owner /operator shall control dust created by the mining operation and its associated
activities so as to meet applicable DEQ standards. The dust control measures shall
include, at a minimum:
a. Regular watering of unpaved portions of the access road and interior roads, as
needed.
b. Application of the dust - suppressant and /or sealant products that meet State
regulations to exposed areas that are not regularly being worked by applicant and
that are not subject to vehicular travel. Renewal and maintenance of such treated
areas as necessary.
c. Monitoring of atmospheric conditions in the manner as identified in the ECI Dust
Abatement Plan accompanying the ECI February 19, 2008 report. The applicant
shall implement the ECI Dust Abatement Plan. A flexible work schedule shall be
implemented for high dust producing- activities, such as overburden removal.
Those activities will not be conducted on days when wind speed exceeds 20 mph,
humidity is less than 50 percent, and when mining surfaces are dry and exposed.
d. Watering the loads of open- bodied haul trucks carrying mined materials from the
site with a water bar or covering those loads with a tarp /covering.
e. Keeping the paved access road connecting to Johnson Road as dust free as
possible.
f. Maintaining the ACDP permits for each crusher used on site.
10. Use of the wash plant shall be curtailed at such times as water is needed for dust
suppression.
11. The applicant shall follow the Emergency Response Plan attached as Exhibit 7 to the
modification of application submittal. The Emergency Response Plan shall be
prominently displayed on site, and employees shall be trained in best management
practices to implement the plan.
12. The owner /operator shall control noise generated by the mining operation and its
associated activities so as to meet all applicable DEQ standards. The owner /operator
shall submit to the Planning Division follow -up noise analyses from a qualified noise
engineer starting one year from the date this decision becomes final and every other year
thereafter for the life of the mining operation.
13. Crushing, screening and washing shall be allowed only at the proposed southwestern
processing location identified on the April 15, 2008 site plan drawing under the
conditions set forth herein. Crushing equipment and washing equipment shall be similar
to that modeled or referenced in the noise study. Processing at the southeast processing
locations shall be shielded by either a 5 -foot berm or be located in a 5 -foot depression if
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the rock crusher or more than one of the rock crusher, pumice crusher or wash plants is to
be used at a time in either of those locations. All three of the rock crusher, pumice
crusher and the wash plant can be used at the southwestern processing location at the
same time. Required berms may be combined with berms provided for screening the
processing equipment from view and shall be covered with ground cover consistent with
ground cover for retained topsoil berms specified in the reclamation plan.
14. Processing equipment located at the southeast processing sites shall be screened from
view by berms 16 feet in height and covered with ground cover consistent with ground
cover for retained topsoil berms specified in the reclamation plan.
15. The owner /operator shall store on -site only equipment necessary and appurtenant to
mining operations for this site only. The owner /operator shall remove all surface mining
equipment from the subject property within 30 days of completion of all mining and
reclamation.
16. The applicant shall maintain the 100 -foot buffer area along the north property line. No
mining activities, except supplied landscaping and reclamation, shall be conducted within
this buffer area.
17. The applicant shall maintain a WPCF -100 permit for wastewater at the site if it chooses
to process the Tumalo tuff by washing it. Any discharge from the wash plant shall be
limited to areas within the boundary of the permit area.
18. The applicant shall park/site vehicles and equipment, including on -site watering
equipment, at least 250 feet from any water wells. The applicant shall continuously
protect the on -site wellhead by maintaining a landscaped or fenced area for a radius of at
least 15 feet from the wellhead.
19. Only those materials excavated from the site may be sold at the site. The applicant shall
not bring in off -site materials for processing and re -sale from the site.
20. Use of the scale shall be limited to trucks leaving the pit with material loaded at the pit.
21. Applicant shall not start crushing on site prior to obtaining a use permit for the proposed
mining operation from the County. The use permit shall not be granted until applicant
provides a revised reclamation plan from DOGAMI or proof from DOGAMI that no
revised site reclamation plan for the site is needed.
22. The discharge of storm water onto the adjacent Hoffman and Todd properties from the
site shall be controlled by directing storm water away from adjacent properties by
berming and contouring.
23. Further mining of the headwall is prohibited unless until a new site plan is submitted
demonstrating that dust from the headwall mining can be controlled on -site.
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24. This approval is subject to the above - stated conditions. Failure to abide by the imitations
of this approval may result in revocation of the permit or other enforcement action.
DATED this day of April, 2009.
MAILED this day of April, 2009.
ATTEST:
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
TAMMY BANEY, CHAIR
DENNIS R. LUKE, VICE CHAIR
Recording Secretary ALAN UNGER, COMMISSIONER
THIS DECISION BECOMES FINAL UPON MAILING. PARTIES MAY APPEAL THIS
DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE
ON WHICH THIS DECISION IS FINAL.
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