HomeMy WebLinkAbout20091133.tiffRECORD OF PROCEEDINGS
MINUTES
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
MAY 13, 2009
The Board of County Commissioners of Weld County, Colorado, met in regular session in full conformity
with the laws of the State of Colorado at the regular place of meeting in the Weld County Centennial
Center, Greeley, Colorado, May 13, 2009, at the hour of 9:00 a.m.
ROLL CALL: The meeting was called to order by the Chair and on roll call the following members were
present, constituting a quorum of the members thereof:
Commissioner William H. Garcia, Chair
Commissioner Douglas Rademacher, Pro-Tem - EXCUSED
Commissioner Sean P. Conway
Commissioner Barbara Kirkmeyer
Commissioner David E. Long
Also present:
County Attorney, Bruce T. Barker
Acting Clerk to the Board, Jennifer VanEgdom
Controller, Barb Connolly
MINUTES: Commissioner Kirkmeyer moved to approve the minutes of the Board of County
Commissioners meeting of May 11, 2009, as printed. Commissioner Long seconded the motion, and it
carried unanimously.
AMENDMENTS TO AGENDA: Chair Garcia added a second Proclamation: Armed Forces Day - May 16,
2009 [2009-1134].
PUBLIC INPUT: No public input was given.
CONSENT AGENDA: Commissioner Conway moved to approve the Consent Agenda as printed.
Commissioner Long seconded the motion, and it carried unanimously.
PROCLAMATIONS:
NATIONAL POLICE OFFICERS WEEK - MAY 10-16, 2009, AND NATIONAL PEACE OFFICERS
MEMORIAL DAY - MAY 15, 2009: Chair Garcia read the certificate into the record, recognizing the week
of May 10 through 16, 2009, as National Police Officers Week, and recognizing May 15, 2009, as National
Peace Officers Memorial Day. J.D. Broderius, Sheriff's Office, expressed his appreciation to the Board
for their recognition of both events. He stated the number of Officer fatalities dropped in the year 2008;
however, the year 2009 has not started as well. He further stated a memorial service will take place on
Friday, May 15, 2009, at the Veterans Memorial located within Bittersweet Park, and Officer Earl Bucher,
a Deputy killed in the line of duty in 1940, will be honored at the service. Mr. Broderius invited the
Commissioners to attend the service and confirmed the public is invited to attend as well.
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2009-1133
BC0016
ARMED FORCES DAY - MAY 16, 2009: Chair Garcia read the certificate into the record, recognizing
May 16, 2009, as Armed Forces Day. Commissioner Conway stated the Evans Veterans of Foreign Wars
(VFW) Post will he hosting a ceremony at Bittersweet Park, at which time he will present the proclamation
and express appreciation to the men and women who have served our Country, on behalf of the Weld
County Commissioners.
COMMISSIONER COORDINATOR REPORTS: Commissioner Conway stated significant discussion took
place during the North Front Range Metropolitan Planning Organization (MPO) meeting on May 7, 2009.
He explained Weld County has worked tirelessly on Senate Bill 3, regarding the proposed Emissions
Program for Northern Colorado, and after several months of discussion, the North Front Range MPO
passed a Resolution which indicated the desire that no Emissions Program be initiated in Weld and
Larimer Counties. He confirmed the Resolution was supported by both Larimer and Weld Counties, and
the Resolution will be sent to the Air Quality Control Commission, which will determine which entities will
be included within the Program. He stated during the MPO meeting, City of Fort Collins Councilman Ben
Manvel requested a weighted vote on the matter, which is the first time in the history of the MPO in which
a weighted vote was requested. He explained each of the fifteen members of the MPO receives a single
vote on issues; however, when a weighted vote is requested by an entity, the vote will be taken and
weighted based upon population. He confirmed the request for a weighted vote led to a spirited
discussion, and Mr. Manvel did end up withdrawing his request for a weighted vote; however, he
reasserted his right to request a weighted vote on any future issue. Commissioner Conway expressed his
concerns regarding the future possibility of weighted votes, due to outdated Census figures, and regarding
the sentiment expressed by the City of Fort Collins that a weighted vote will be requested anytime the City
disagrees with an action. He confirmed the Resolution regarding the Emissions Program is well drafted,
stating why the Program is not necessary in Weld or Larimer Counties. He stated the entities represented
within the MPO need to seriously heed the comments provided by the City of Fort Collins, which could lead
to differences in the future as to how the MPO will be handled. He expressed his appreciation to the Board
and to staff for their work on the Resolution and participation within the Emissions Program issue.
Commissioner Kirkmeyer suggested that the MPO should look into the possibility of amending the bylaws,
since a weighted vote cannot take place regarding an amendment to the bylaws. She confirmed it is
necessary for the MPO to work regionally, not based on population levels. She further confirmed she
attended a meeting last week to discuss the distribution of Congestion Mitigation and Air Quality (CMAQ)
funds, and the City of Fort Collins was the only entity within Northern Colorado which received CMAQ
funds because the City is located within a PM -10 area. She confirmed CMAQ funds should be utilized
throughout the entire MPO, and she indicated it is important to make sure that the City does not
monopolize a weighted vote to ensure all of the funds are utilized for projects at its sole discretion. She
confirmed a formula to determine the amount of CMAQ funds will be enacted by the State, and Weld
County needs to make sure it receives adequate funding for the necessary programs within the region.
Commissioner Conway confirmed he is disappointed by the pattern provided by the City of Fort Collins,
including the negative vote of the city regarding the Northern Integrated Supply Project (NISP) for water
usage. He further confirmed the City of Fort Collins was the entity which voted negatively for the
implementation of a Regional Transit Authority (RTA); however, a number of the municipalities within
Larimer County have joined the efforts presented by Weld County to vote in approval. Chair Garcia stated
the MPO is not a governmental agency, therefore, it should operate through the terms of a league of
friendship, which was the original intent of the organization. He confirmed only one vote from each entity
is appropriate, to order to ensure equality.
Minutes, May 13, 2009 2009-1133
Page 2 BC0016
BIDS:
PRESENT BID#B007-09,COUNTY NEWSPAPER - DEPARTMENT OF FINANCE: Monica Mika, Director
of Administrative Services, read the names of the three vendors who submitted a bid into the record. Said
bid will be considered for approval on May 27, 2009. In response to Chair Garcia, Ms. Mika confirmed one
newspaper will need to be accepted and designated for all County publications, therefore, it is not an option
to split the bid according to type of publication. She indicated the Clerk to the Board's Office will be
calculating the expected overall costs, based upon the monthly average of each type of publication, and
a formal recommendation will be given when the bid is presented for approval.
PRESENT BID #B0900116, EMERGENCY GENERATORS #2 - DEPARTMENT OF FINANCE: Ms. Mika
read the names of the three vendors who submitted a bid into the record. Said bid will be considered for
approval on May 27, 2009. She stated staff will continue to work with the communities and the Department
of Local Affairs (DOLA) to receive permission to redistribute some of the funding in order to stay within the
overall funding limits of the grant. Commissioner Conway stated the season for tornados is quickly
approaching, and he prefers for the equipment to be delivered to the communities as quickly as possible.
Ms. Mika confirmed staff can proceed with the purchase of the equipment as soon as the bid is formally
approved, and she clarified the warning sirens have already been delivered to the communities.
Responding to Commissioner Long, Ms. Mika confirmed the fuel type was included within the bid
specifications.
NEW BUSINESS:
CONSIDER AGREEMENT FOR CONVEYANCE OF EASEMENT FOR CERTAIN IMPROVEMENTS TO
CR 13 AND AUTHORIZE CHAIR TO SIGN NECESSARY DOCUMENTS - MARTIN AND VIKI LIND: Leon
Sievers, Department of Public Works, stated this is the second of five parcels to be acquired for the County
Road 13 Road Project, which is a joint venture with Larimer County. He indicated the Department will
acquire 0.176 acres of permanent easement, for a value of $1,880.00, which is based upon an appraisal
report completed by Messick Bowes. He confirmed the landowner has been a willing participant, and is
looking forward to the completion of the road improvements. He indicated there are no other costs
associated with this parcel, therefore, total compensation to the property owner is in the amount of
$1,880.00. Commissioner Long moved to approve said agreement and authorize the Chair to sign any
necessary documents. Seconded by Commissioner Conway, the motion carried unanimously.
CONSIDER TEMPORARY CLOSURE OF CR 62 BETWEEN CRS 57 AND 59: Janet Carter, Department
of Public Works, stated County Road 62, between County Roads 57 and 59, will be closed from May 18,
through May 29, 2009, for the re -decking and repair of Bridge 62/57A. She indicated the average daily
traffic count on County Road 62 is approximately 157 vehicles, and she confirmed water will be utilized for
dust control along the detour route. Commissioner Conway moved to approve said temporary closure.
Seconded by Commissioner Kirkmeyer, the motion carried unanimously.
CONSIDER TEMPORARY CLOSURE OF CR 15 AT INTERSECTION WITH CR 4: Ms. Carter stated
County Road 15, at the intersection with County Road 4, will be closed from May 18, through May 21,
2009, for installation of a diagonal culvert which will replace an older irrigation pipe. She indicated the
average daily traffic count on County Road 15 is 92 vehicles, water will be utilized along the detour route
for dust control, and standard road signs will be utilized to warn motorists of the closure. Commissioner
Kirkmeyer commented staff did an excellent job the last time a road was closed within close proximity of
her residence, and she will be watching this road closure to ensure the road is reopened at the appropriate
time. Commissioner Kirkmeyer moved to approve said temporary closure. Seconded by Commissioner
Long, the motion carried unanimously.
Minutes, May 13, 2009 2009-1133
Page 3 BC0016
PLANNING:
CONSIDER REQUEST TO WITHDRAW APPLICATION FOR THIRD AMENDED USE BY SPECIAL
REVIEW PERMIT#842 -TIRE RECYCLING, INC.: Bruce Barker, County Attorney, advised Dwain Immel,
Owner/Operator of Tire Recycling, Inc., that he has the option of continuing the matter to a date when the
full board will be present. However, if he decides to proceed today, it will require three affirmative votes,
or in the case of a tie vote, Commissioner Rademacher will review the record and make the determining
vote. Mr. Immel indicated he would like to proceed today.
Jacqueline Hatch, Department of Planning Services, stated staff received a letter from Mr. Immel,
requesting that the permit for Third Amended Use by Special Review (USR) #842, be withdrawn. She
indicated the application for 3rdAmUSR-842 was approved on September27, 2006; however, the plat has
not yet been recorded, therefore, the permit has not been finalized. She read the uses allowed through
3rdAmUSR-842 into the record, and clarified if the application is withdrawn, the property will be required
to operate in compliance with the uses allowed through the 2ndAmUSR-842 permit, which she reviewed
for the record. She clarified if the operator wishes to begin a new use on the property in the future, a new
amendment to the USR permit may be required. Mr. Barker clarified the matter is being phrased as a
withdrawal of the application because the operator did not complete the Conditions of Approval and the
plat was never recorded. He further clarified a permit is usually vacated after it has been recorded;
however, because this plat was not recorded, the request by the operator is to withdraw the application.
Chair Garcia indicated it is his understanding that the applicant only has the option to withdraw an
application when it is still within the applicant's control, which is not the case for this application since the
Board has already heard the application and granted approval. Mr. Barker clarified since the Conditions
of Approval and Development Standards have not yet been completed, he recommended that the Board
consider the operator's request to withdraw the application. Commissioner Kirkmeyer questioned whether
the operator will still be allowed to recycle tires on the site if the permit for 3rdAmUSR-842 is
withdrawn/vacated. In response, Ms. Hatch indicated 2ndAmUSR-842 does include a provision for the
recycling of tires; however, if the operator desires to process the tires in a specific way, such as cryogenics
to create crumb rubber, an amendment to the permit will be required. Further responding to Commissioner
Kirkmeyer, Ms. Hatch clarified the uses allowed through 2ndAmUSR-842 do not allow any type of
processing or shredding of tires, only for the storage and recycling of tires. Trevor Jiricek, Department of
Public Health and Environment, requested clarification and assistance from Mr. Barker regarding the
allowed uses on the site, and requested a five minute recess to review the documents detailing the uses
approved through the previously approved permits. Chair Garcia issued a recess of the matter.
Upon reconvening, Chair Garcia requested that Mr. Immel come forward so that he may be involved in the
discussion taking place. Ms. Hatch indicated she and Mr. Jiricek reviewed the documents associated with
2ndAmUSR-842 during the recess, and she confirmed the documents mention recycling uses within the
title; however, the specific definition of recycling was not called out within the Resolution, and it was not
discussed within the hearing. She clarified staff believes the definition of recycling is the re -use of tires,
which includes transporting the tires on and off the site in the same form. She further clarified it was
previously determined by staff that the specific processing of the tires required an amendment to the
permit, therefore, the operator made application for 3rdAmUSR-842 to process the tires as crumb rubber.
Mr. Jiricek confirmed the documents for 2ndAmUSR-842 refer to the re -use of tires; however, the term
recycling does not include the use of tire shredding. He further confirmed the site has not historically
contained shredding operations, which is consistent with staff's interpretation that the processing activities
were considered to be a substantial change of use for the site; therefore, the application for
3rdAmUSR-842 was required and submitted.
Commissioner Conway indicated new State -mandated legislation will be enacted this summer, which
indicates tires stored at these types of facilities will be required to be shredded to a specific size after the
date of August 5, 2009. He questioned whether allowing the operator to withdraw the application for
Minutes, May 13, 2009 2009-1133
Page 4 BC0016
3rdAmUSR-842 will create a "catch -22" situation, since shredding operations are not currently allowed
through the 2ndAmUSR-842 permit, and as of August 5, 2009, the operator will be required to shred the
tires on the site. Mr. Barker indicated the State has not yet officially approved the legislation; however, it
is expected that the Governor will sign very soon. Commissioner Kirkmeyer indicated the legislation cannot
be made retroactive, otherwise, the Certificate of Designation would have to be modified. Mr. Barker
clarified every tire accepted at the site after August 5, 2009, the effective date of the new legislation, will
be required to be shredded. Commissioner Kirkmeyer indicated the tires do not specifically have to be
shredded at the site, therefore, the operator does not necessarily have to be allowed to complete
shredding operations at this site. Commissioner Conway indicated it is his understanding that the new
legislation indicates the tires cannot be accepted unless they are already halved. Mr. Jiricek stated he is
unclear regarding the interpretation of the new legislation; however, he confirmed the State passed
legislation two years ago, prohibiting general landfills from accepting tires, which was deemed retroactive,
therefore, landfills are not allowed to contain old tires nor accept new tires.
Chair Garcia questioned whether the need for the application of 3rdAmUSR-842 was due to the fact that
the operator intended to modify the composition of the product stored on the site, or if it was due to the
proposed use of the cryogenic equipment on the site. In response, Ms. Hatch confirmed it was a
combination of both factors, and she remembers previous discussions with the operator during which it
was intended that the facility would be expanded, with revised operational hours, and increased noise and
traffic would be a result of the expansion. She summarized the need for the third amendment to the permit
was due, in part, to the change of use on the site, by approximately 80 percent, and due, in part, to the
proposed use of the cryogenic process, by approximately 20 percent. Mr. Jiricek suggested Mr. Immel
give consideration to the option of not withdrawing the application for 3rdAmUSR-842, and instead work
to complete and finalize the Conditions of Approval, so that the site will retain compliance with the
proposed legislation.
Mr. Immel clarified at the time he applied for the 3rdAmUSR-842 permit, it was his understanding that the
purpose of amendment was due to the heavy manufacturing use of the cryogenic equipment on the site.
He clarified the cryogenic processing component has been abandoned, since the company lost an
important purchase contract. He further clarified it has always been his understanding that recycling uses
are allowed on the site, and that the tires on the site are allowed to be shredded, if desired. He indicated
his definition of recycling includes physically changing the end use of the product, and shredding the tires
only helps to reduce the space necessary for the storage of the tires. He further indicated he does not
believe a need to modify his current permit would exist if the site is only shredding tires and reducing the
volume of tires stored on the site, which essentially makes the storage pits easier to maintain and control.
Mr. Immel confirmed he requested to withdraw the application for 3rdAmUSR-842 to clear up the violation
issue through the Show Cause Hearing. He reiterated he has abandoned the plans for a crumb rubber
operation, therefore, since the use was no longer necessary, he did not feel like it was necessary to record
the plat for a use which would not be utilized. He indicated he would like to continue operations at the site,
as approved through 2ndAmUSR-842, and if a future use is proposed for the site, he will complete the
amendment process at that time. Responding to Commissioner Conway, Mr. Immel reiterated his
interpretation of the uses allowed on the site include storage and disposal of tires, including shredding of
the tires, if necessary, and mobile housing for employees, and he fully expects that the site will remain in
compliance if reverted back to the uses permitted under 2ndAmUSR-842. Responding to Commissioner
Kirkmeyer, an unidentified member of audience clarified the proposed legislation regarding the requirement
to shred tires is known as Senate Bill 289.
Mr. Jiricek indicated the submitted application materials for the 2ndAmUSR-842 permit make a reference
to a recycling facility; however, the materials do not give any definition to the type of recycling to occur.
Commissioner Conway stated the operator is requesting withdrawal of a permit which he actually may not
want withdrawn, therefore, it is important for the operator to understand the request before the Board
Minutes, May 13, 2009 2009-1133
Page 5 BC0016
makes a determining vote. He reiterated a change in Statute will impact the operator in the very near
future, and he desires for all parties involved to understand the implications of the withdrawal request.
Mr. Jiricek confirmed a Design and Operations Plan was submitted as a part of the application materials
for 2ndAmUSR-842; however, the plan does not make any reference to recycling activities on the site, and
the minutes from the hearing do not reflect any discussion of recycling activities.
Responding to Commissioner Conway, Mr. Barker indicated the new legislation will not be retroactive, and
he read proposed Section 30-20-121(3), C.R.S., into the record, indicating tires will be required to be
shredded into twelve -inch pieces or smaller. He further indicated subparagraph four of the same section
reference indicates each County shall make an annual report to the State regarding the status of the tire
landfill, or eventually adopt a plan to eliminate all tire landfills within ten years of the effective date of
August 5, 2009. Commissioner Kirkmeyer reiterated the operator will still be able to comply with the
proposed legislation by requiring the tires to be shredded before they are brought to the site for storage
or disposal.
Chair Garcia indicated it is not definitively clear that shredding uses are allowed through the
2ndAmUSR-842 permit; however, if the Governor signs the proposed legislation, all tires brought to the
site after August 5, 2009, will be required to be shredded into twelve -inch strips. He confirmed the new
law will create a huge impact on the operator, and in response, Mr. Immel stated when the proposed
legislation is enacted, the operations on the site will have to be modified; however, he does not believe the
shredding operations will create a significant impact at the site. He reiterated he believes the purpose for
applying for the 3rdAmUSR-842 permit was because the proposed cryogenic operations on the site were
deemed to be a substantial change to the use of the site, and since he has abandoned the potential use
of cryogenic operations, there is no reason to complete the requirements for 3rdAmUSR-842. He further
reiterated if he desires to begin an alternative operation on the site in the future, he understands he will
be required to apply for an additional amendment to the permit. He confirmed the business collects and
disposes of tires, and the only modification on the site will be that shredded tire strips will be stored in the
holding cells, instead of whole tires. Mr. Immel indicated the State of Colorado is one of the few states
which allows the disposal of whole tires within tire landfills, and most companies within the business have
been aware that the proposed legislation within Senate Bill 289 would most likely be presented and
approved. In response to Chair Garcia, Mr. Barker clarified a finding of fact that shredding is a use allowed
within the definition of recycling is not necessary for the withdrawal request; however, approving the
withdrawal request will create a question of compliance with the uses approved for 2ndAmUSR-842.
Commissioner Kirkmeyer indicated she believes the request may be premature, and even though the
operator has requested withdrawal of the permit, the request may not be in the best interests of the
operator, since it may hinder the allowable activities at the site. She suggested that the matter be
continued for a period of one week so that staff may review the documentation forthe previously approved
permits to determine what uses are allowed through the definition of recycling. She confirmed it is her
desire for the operator to remain in compliance so that staff does not have to initiate any additional
Probable Cause Hearings against the operator. In response to Commissioner Long, Mr. Barker clarified
it is not a possible action of the Board to vacate specific uses contained within a USR permit; however, an
applicant may request, and the Board may approve, the removal of a portion of property within the USR
boundary. He confirmed an additional amendment to the permit would be required to scale down, or
delete, uses from a specific permit.
Vern Tharp, Solution Financing, LLC, questioned whether the operator has the right, as the manager of
the estate through the bankruptcy proceedings, to give up a valuable asset of the estate, the
3rdAmUSR-842 permit, since the asset allows valuable use of the property. He confirmed the bankruptcy
court will have to consider the matter before the Board can make a decision. He expressed his concerns
regarding the lack of notification for today's meeting, and he urged the Board not to make a decision on
Minutes, May 13, 2009 2009-1133
Page 6 BC0016
the matter until the bankruptcy court is able to make a determination. In response to Chair Garcia,
Mr. Barker clarified the County did not receive notice from the bankruptcy court designating requirements
for the dissipation of assets of the estate. He further clarified the permit is not considered as an asset of
the estate, since it does not become vested with the property until the Conditions of Approval are
completed. He stated the Board has the right to revoke or suspend a USR permit, or vacate, if requested,
at any time, regardless of an estate's status within bankruptcy court. He clarified the biggest question
presented by the operator's request is whether the operator will be able to comply with Senate Bill 289 if
the 3rdAmUSR-842 permit is withdrawn. Chair Garcia confirmed the Board is not required to delay any
action in order to obtain a decision of the bankruptcy court, and if an individual acts in a way which is
contrary to an order by a court, the appropriate action is to lodge a complaint with the court which issued
the order.
Mr. Tharp clarified he understands the permit is not yet vested with the property; however, lenders and
other interested parties which may wish to invest in the property consider the permit to be an intangible
asset, because if the permit is vacated, the USR process would be required to begin from the beginning.
Mr. Barker indicated Mr. Tharp has shared a valid point, and there is not a stay of action against the Board
regarding action taken against the USR permit; however, the bankruptcy matter includes a stay against
the individual from doing any action which may harm the assets of the estate. He clarified the request
made by Mr. Immel may not be valid because it could be determined that Mr. Immel is under an order by
the bankruptcy court not to harm the assets of the estate. Mr. Tharp clarified he is requesting a delay of
action on the matter due to inadequate notice, and indicated he would like time to present the matter to
the bankruptcy court.
Hal Lewis, Attorney, indicated he represents Tire Recycling, Inc., within its bankruptcy proceedings, and
he clarified an automatic stay only keeps creditors from taking action against the debtor. He stated,
Mr. Immel, as the principal, has the obligation to continue to operate the company in an ordinary course
of business, and it is within his judgement to proceed with the withdrawal request. He further stated the
Board has made a relevant observation that Mr. Immel may not want to withdraw the application; however,
Mr. Immel believes the withdrawal of 3rdAmUSR-842 will lead to relief of the suspension of the
2ndAmUSR-842 permit. He confirmed if it is possible to not withdraw the application, and have the
suspension lifted, he recommends that Mr. Immel not proceed with the withdrawal request. Mr. Lewis
indicated the automatic stay ordered by the bankruptcy court does not prevent the Board from taking action
on this matter today, and Mr. Tharp is welcome to present his concerns through the bankruptcy court;
however, he is not a creditor or a party of interest of the estate. Responding to Commissioner Conway,
Mr. Lewis confirmed Mr. Immel is entitled to run the business as he sees fit, without consultation of the
bankruptcy court, and he is obligated to continue operations in the ordinary course of business. He further
confirmed the request forwithdrawal is within the ordinary course of business, and he explained Mr. Immel
is currently within negotiations for sale of the property to a third party; however, a motion will have to be
filed with the bankruptcy court for this action, as it is outside of the normal course of business operations.
Commissioner Conway explained he was previously concerned that the operator may not have been
complying with the terms of the bankruptcy court; however, after the explanation provided by Mr. Lewis,
his concerns have been resolved. Mr. Lewis reiterated there is no doubt that the withdrawal request is
deemed to be a part of the ordinary course of business.
In response to Chair Garcia, Mr. Immel indicated he believes during the Show Cause Hearing conducted
on April 29, 2009, the USR permits were suspended by the Board due to the presence of concrete material
on the site, concerns regarding proper financial assurance, and the declaration of the permit for
3rdAmUSR-842 as incomplete, since the plat had not been recorded. He reiterated he does not intend
to move forward with the cryogenic processing on the site, therefore, he believed the withdrawal of the
application would solve the Board's concern. He clarified the concrete material was removed from the site
on the same day, and staff has now received evidence from the State that the financial assurance is
Minutes, May 13, 2009 2009-1133
Page 7 BC0016
updated and adequate. He clarified he is trying to do whatever is necessary to have the suspension lifted
so that the site may resume full business operations. He confirmed he spent thousands of dollars during
the application process for 3rdAmUSR-842, and he has complied with all of the necessary requirements,
with the exception of a few minor items and the recording of the plat. He indicated he does not desire to
withdraw the permit; however, he believes the matter of non-compliance with the permit for 3rdAMUSR-842
is preventing his company from being able to operate until an alternative use of the property may be
determined, therefore, it was his decision to request the withdrawal of the permit. He further indicated the
Board could make the determination that the non-compliance with 3rdAmUSR-842 is not a part of the
reason for the suspension, and if the suspension is able to be lifted today, he desires to keep the permit.
Further responding to Chair Garcia, Mr. Immel indicated he has been aware of the discussion that Senate
Bill 289 may become a reality, and it is not unexpected that the tires will be required to be shredded before
being placed in the holding cells. He confirmed he has not done any shredding activities within the past
because of the expense of doing so. In response to Chair Garcia, Mr. Immel confirmed he does not wish
to withdraw the application if the 90 -day suspension could be lifted, because his ultimate desire is to
continue fully -functional business operations. Responding to Commissioner Conway, Mr. Immel reiterated
that he does not desire to withdraw the application if the suspension order is lifted by the Board.
Responding to Commissioner Kirkmeyer, Mr. Immel confirmed he is currently collecting tires at the site,
which are being stored in trailers; however, there is no disposal of tires occurring at the site.
Commissioner Kirkmeyer clarified the permit for 2ndAmUSR-842 does not allow for shredding operations
on the site, therefore, in order to be in compliance with the Senate Bill 289, it will be necessary after
August 5, 2009, for the operator to accept tires which have already been shredded to the required
specifications. Further responding to Commissioner Kirkmeyer, Mr. Immel indicated only a few items are
left to be completed for the permit for 3rdAmUSR-842, such as the submittal of a Lighting Plan and
recording the plat. He reiterated he still does not believe the need exists to retain the permit for
3rdAmUSR-842 since the cryogenic operations on the site have never transpired.
Mr. Barker stated Condition of Approval #5 forAmUSR-842 indicates "Prior to the start of recycling on the
site, the USR permit shall be amended to include specific information detailing the tire recycling operation.
This amendment shall be treated as a new application and will require the approval of the Board of County
Commissioners." He further stated 2ndAmUSR-842, approved on October 22, 2003, was for the
expansion of the site by an additional 40 acres, and the details of recycling activities were not included
within the application materials. He clarified the application for 3rdAmUSR-84 was submitted when it was
determined that the cryogenic operations would be the method of recycling the tires. He confirmed in order
to allow shredding operations on the site in the future, an amendment to the permit will need to be made,
identifying the specifics of the shredding and recycling operations. Mr. Immel requested a reasonable
amount of time to work with staff to figure out the necessary items to be completed through
3rdAmUSR-842, while the suspension is lifted. He indicated he intends to implement a recycling operation
at the facility in the near future.
Commissioner Conway indicated there are too many remaining questions to make a determination on the
withdrawal request today. He indicated he concurs with a continuance of the matter so that staff may
review the documents of the former USR permits; however, there is too much confusion surrounding the
matter today, as the operator himself does not seem convinced he would like to continue with the
withdrawal request.
Commissioner Kirkmeyer indicated she does not oppose a continuance of the matter regarding the request
for withdrawal; however, she strongly objects to the operator who has admitted he has continued
operations at the site, even though a suspension was ordered by the Board at the hearing on April 29,
2009. She clarified just because the operator is not disposing of the tires does not mean he is not in
operation, therefore, he is violating the suspension order. Chair Garcia indicated he supports denying the
Minutes, May 13, 2009 2009-1133
Page 8 BC0016
request to withdraw the application since the permit for 3rdAmUSR-842 will be necessary to conduct
shredding and recycling operations on the site in the near future. Commissioner Long indicated a
continuance of the matter is prudent, as there are questions which are still unanswered. He expressed
his objection to the operator minimizing the requests of the Board within past hearings, and clarified it is
not wise to indicate that only a few minor details remain to be completed through the permit for
3rdAmUSR-842. He confirmed many of the items of concern brought forth within the Probable Cause and
Show Cause Hearings were significant deficiencies of operation standards which were not kept in order
by the operator throughout many years. He cautioned the operator not to minimize the seriousness of the
situation, and he reiterated the Board needs more answers before action may be taken.
In response to Commissioner Conway, Chair Garcia indicated he does not believe additional information
regarding past permits will be of assistance since the operator will be required to be in compliance with the
upcoming Senate Bill 289; however, he will support a motion for a continuance of the matter. Upon
conferring with staff, Commissioner Conway moved to continue the matter to May 20, 2009, at 9:00 a.m.
The motion was seconded by Commissioner Kirkmeyer, and she indicated it should be understood that
the request is not just for the withdrawal of the application since the application has already been approved
by the Board. She further indicated she believes the request should be treated as a vacation of the matter,
even though the plat has not been recorded. There being no further discussion, the motion carried
unanimously.
CONSIDER ABATEMENT OF SUSPENSION AND DISMISSAL OF SHOW CAUSE HEARING FOR
SECONDAND THIRD AMENDED USE BY SPECIAL REVIEW PERMITS #842 -TIRE RECYCLING, INC.:
Ms. Hatch stated two of the requirements to be completed in order to lift the suspension have been
completed, including the removal of the concrete materials from the site, as confirmed within photographs,
and as of May 10, 2009, the financial assurance for the site was accepted by the State. She explained the
third requirement was that 3rdAmUSR-842 be vacated or the Conditions of Approval be completed so that
the plat may be recorded, and based upon the action taken by the Board in the previous item of business,
she recommended that this matter also be continued to May 20, 2009, at 9:00 a.m. In response to
Commissioner Kirkmeyer, Ms. Hatch confirmed the suspension orders indicated no collection ordistribution
of tires was to occur at the site for a period of 90 days; however, facility staff could still complete other
tasks at the site such as weed control, office operations, and organizing tires already contained within the
cells on the site. She further confirmed Mr. Immel did indicate, within the discussion for the previous item
of business, that he has been accepting tires at the site; however, staff has also received notice indicating
that tires are not currently being accepted at the site.
Mr. Immel stated it is his understanding that the permit for 3rdAmUSR-842 regulates the disposal of tires,
and that no permit is required for the collection of tires at the site. He confirmed he is storing the tires in
semi -trailers brought to the site, on a temporary basis, until the suspension is lifted by the Board; however,
if necessary, he can move the trailers to another site. He explained he does not believe he is violating the
terms of the permit or of the suspension ordered by the Board, and he is continuing to accept the tires as
a service to his customers. He clarified if the customers were forced to retain the tires on their respective
sites, they would be charged with excess fines and fees. He further clarified he specifically told the truck
drivers to park the trailers on the site, and that the trailers were not to be unloaded until the suspension
was lifted. He confirmed he was not aware that it was not allowable to park trailers on the site, and he is
willing to continue to lease additional trailers to store the tires until the suspension issue is resolved. He
reiterated he does not believe a permit is necessary for the collection of tires, it was not his intention to
violate the suspension order, and there is absolutely no disposal of tires occurring at the site. He clarified
he is only accepting tires from customers who hold a standing account, which are being stored within the
trailers already owned by the company, and all other members of the public are being turned away from
the site.
Minutes, May 13, 2009 2009-1133
Page 9 BC0016
Chair Garcia indicated he is dismayed by the testimony provided by Mr. Immel because the directions of
the suspension order issued at the hearing on April 29, 2009, were very clear to indicate no operations
were to be occurring on the site for a period of 90 days. In response to Chair Garcia, Mr. Immel indicated
Troy Swain, Department of Public Health and Environment, previously suggested that the tires remain in
the trailers on the site. Responding to Commissioner Long, Mr. Jiricek confirmed he is Mr. Swain's
supervisor; however, he was not previously aware of the details of the conversation between Mr. Immel
and Mr. Swain.
Commissioner Kirkmeyer indicated she would like to know what exact question Mr. Immel asked of
Mr. Swain, and if he specifically asked if it was allowable to bring in additional tires to the facility. In
response, Mr. Immel clarified he questioned Mr. Swain what he was supposed to do with the customers
who brought tires to the site, and Mr. Swain replied that the tires would have to remain in the trailers since
the tires cannot be disposed of on the site during the suspension period. Commissioner Conway indicated
there has been information provided by the public which indicates several customers have been informed
that it was okay to bring tires to the site, and he questioned whether Mr. Immel explicitly explained the
terms of the suspension to all of the employees at the site. In response, Mr. Immel clarified he has made
it clear to his employees that tires are not to be accepted at the site. Commissioner Conway clarified he
understands that Mr. Immel is not able to be present on the site during all hours of operation; however, it
is pertinent that he ensure the employees understand that no additional tires are to be accepted at the site.
Commissioner Kirkmeyer indicated without Mr. Swain present, the Board does not know the background
of what was said during the conversation. She read a portion of the hearing certification from April 20,
2009, into the record, indicating the County Attorney stated a suspension will cease operations at the site,
and motion for approval of the suspension indicated a 90 -day suspension of all activities related to the
permit for 2ndAmUSR-842, which includes storage activities. She indicated she is not sure why the
operator thought storing tires on the site was appropriate when it was clear that "all activities" were not
allowed. In response to Commissioner Kirkmeyer, Mr. Barker clarified if an operator violates a suspension
order, the Board has the option to authorize the County Attorney to proceed with legal action to obtain a
court -ordered injunction against the operator and facility to cease activities.
Mr. Immel questioned whether the County is making the assertion that it is allowed to regulate the
collection of tires at his business site, which is a service he provides to his customers. In response,
Mr. Barker confirmed none of the USR permits approved for the site have indicated that tires may be
collected at a facility during a period of suspension, and there are no provisions within the documents
which allow for tires to be stored within large trailers or other containers on the site. He clarified if the
operator desires to allow for the storage of tires within trailers, he is allowed to amend the permit, to include
that specific use, or the trailers may be moved to a property which he believes allows the storage of the
trailers as a Use by Right; however, the Weld County Code indicates storage within containers on a site
requires the issuance of a USR permit.
Commissioner Kirkmeyer expressed her frustration that the Board has already issued a strict suspension
order to stop all activities at the site, and the operator has not complied, therefore, she has reservations
concerning authorizing the County Attorney to seek an injunction order. She stated it is apparent that the
operator remains confused about what uses and operations are allowed on the site; however, the
Resolution and the requirements listed within the Weld County Code are very clear. She clarified her
decision would be to shut down the operation entirely; however, she understands other Board members
would not agree with her decision, therefore, she will not make a motion to that effect.
Commissioner Conway confirmed the operations at the site are currently suspended for a period of
90 days, and he believes since the previous matter was continued for a period of a week, this request
should also be continued for a week. He further confirmed he shares the frustration of Commissioner
Minutes, May 13, 2009 2009-1133
Page 10 BC0016
Kirkmeyer; however, the operator has made progress by removing the concrete materials and obtaining
the necessary financial assurance. Commissioner Kirkmeyer reiterated the operator has completed
ignored and violated the suspension ordered by the Board. Commissioner Conway indicated he believes
the 90 -day suspension period should remain in effect until the operator is able to provide evidence that he
has completed all items of compliance. Responding to Commissioner Conway, Mr. Barker confirmed if
the request for abatement of the suspension is denied today, the operator will remain under a suspension
order until July 29, 2009.
Chair Garcia reiterated he was surprised to hear the operator admit that tires were still being accepted at
the site, since the order issued by the Board was clear. He indicated a continuance of this matter is not
necessary, as this is a separate matter, containing contempt for suspension, and he does not desire to
consider this matter again in the future. Commissioner Conway clarified the operator has indicated
Department staff provided conflicting information; however, he is skeptical of the version of the
conversation provided by the operator. He confirmed Mr. Swain was not able to be in attendance at the
meeting today, therefore, the Board is not able to hear from both sides for clarification, and he would like
to be able to hear testimony from Mr. Swain, who will be able to attend a meeting next week.
Commissioner Kirkmeyer indicated a clarification of the suspension was provided at the April 29, 2009,
hearing, at which time the operator was notified that a suspension of the matter would include all USR
activities on the site.
Commissioner Kirkmeyer moved to deny said request for abatement of suspension and dismissal of said
Show Cause Hearing. The motion was seconded by Chair Garcia. Responding to Commissioner Conway,
Mr. Barker clarified the motion presented to deny the request for abatement of the suspension and
dismissal of the Show Cause hearing indicates the lack of desire of the Board to consider this request
again at a later date, and he confirmed the suspension order will remain in effect until July 29, 2009.
Commissioner Long stated the instruction provided by Department staff is speculative at this point;
however, the orders given by the Board were clear and concise. He further stated if Department staff did
mis-speak on the allowed uses, it was said in error; however, it does not change the end result of the
Board's vote to abate the suspension period. Commissioner Conway expressed his appreciation to
Commissioner Long for his clarification, and he concurs that the orders of the Board were very specific.
There being no further discussion, the motion carried unanimously.
RESOLUTIONS AND ORDINANCES: The resolutions were presented and signed as listed on the
Consent Agenda. No Ordinances were approved.
Let the minutes reflect that the above and foregoing actions were attested to and respectfully submitted
by the Acting Clerk to the Board.
Minutes, May 13, 2009 2009-1133
Page 11 BC0016
There being no further business, this meeting was adjourned at 11:00 a.m.
BOARD OF COU Y COMMISSIONERS
WELD,CUN I OLORADO
ATTEST:
Weld County Clerk to the Board
BY:
Deput:! lerk to the Board
CUSED
uglas Rademacher, Pro-Tem
Sean P. Conway
arb Kirkmeyer
David E. Long
Minutes, May 13, 2009 2009-1133
Page 12 BC0016
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