HomeMy WebLinkAbout20090266HEARING CERTIFICATION
DOCKET NO. 2008-02.F
RE: SHOW CAUSE HEARING CONCERNING SECOND AMENDED USE BY SPECIAL
REVIEW PERMIT #842 FOR A SOLID WASTE DISPOSAL SITE AND FACILITY
(COMMERCIAL JUNKYARD AND SALVAGE YARD INCLUDING TIRE LANDFILL,
STORAGE AND RECYCLING FACILITY) AND A MOBILE HOME FOR HOUSING IN THE
1-3 (INDUSTRIAL) ZONE DISTRICT, AND THIRD AMENDED USE BY SPECIAL REVIEW
PERMIT #842 FOR A SOLID WASTE DISPOSAL SITE AND FACILITY (COMMERCIAL
JUNKYARD AND SALVAGE YARD, INCLUDING A TIRE LANDFILL, STORAGE,
SHREDDING, AND RECYCLING FACILITY), MANUFACTURING/ PROCESSING FACILITY
(CRYOGENIC PROCESSING/CRUMB RUBBER), AND AMOBILE HOME FOR HOUSING
IN THE 1-3 (INDUSTRIAL) ZONE DISTRICT - TIRE RECYCLING, INC.
A public hearing was conducted on April 29, 2009, at 10:00 a.m., with the following present:
Commissioner William F. Garcia, Chair
Commissioner Douglas Rademacher, Pro-Tem
Commissioner Sean P. Conway
Commissioner Barbara Kirkmeyer
Commissioner David E. Long
Also present:
Acting Clerk to the Board, Esther Gesick
County Attorney, Bruce Barker
Planning Department representative, Jacqueline Hatch
Health Department representative, Troy Swain
Public Works representative, Don Carroll
The following business was transacted:
I hereby certify that pursuant to a notice dated December 20, 2007, and duly published
December 26, 2007, in the Fort Lupton Press, a public hearing was conducted on January 9, 2008,
to consider revocation of Second Amended Use by Special Review Permit #842 for a Solid Waste
Disposal Site and Facility (commercial junkyard and salvage yard including tire landfill, storage and
recycling facility) and a Mobile Home for Housing in the 1-3 (Industrial) Zone District, and Third
Amended Use by Special Review Permit #842 for a Solid Waste Disposal Site and Facility
(commercial junkyard and salvage yard, including a tire landfill, storage, shredding, and recycling
facility), Manufacturing/Processing Facility (cryogenic processing/crumb rubber), and a Mobile
Home for housing in the I-3 (Industrial) Zone District, issued to Tire Recycling, Inc., at which time
the Board deemed it advisable to continue the matter to March 12, 2008, then to June 25, 2008,
then to August 27, 2008, then to November 19, 2008, then to February 25, 2009, then to April 29,
2009. At said hearing on April 29, 2009, Bruce Barker, County Attorney, made this a matter of
record.
Jacqueline Hatch, Department of Planning Services, stated staff from the Departments of Planning
Services and Public Health and Environment conducted a site inspection yesterday and found the
surface piles to be in compliance with the ten -foot height restriction, the applicant indicated they
will commence with marking the various piles with spray paint to document compliance with the
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HEARING CERTIFICATION - SHOW CAUSE HEARING FOR TIRE RECYCLING, INC.
(2NDAMUSR #842 AND 3RDAMUSR #842)
PAGE 2
30 -day holding maximum, and overall, the facility appears to be in compliance. She noted concern
regarding the distance of the pits from oil and gas facilities; however, the Platteville/Gilcrest Fire
Protection District, in a response marked Exhibit J, indicated the tire cells must be at least 150 feet
from well heads, and 200 feet from tanks, and the site currently meets these standards. Ms. Hatch
also expressed concern with the operator's recent activity of stockpiling concrete on the site. She
stated the intent is to crush the concrete and use it for a road base at the entrance to the facility.
She further stated they have negotiated with an independent contractor to come in and crush the
material to be placed by the end of August; however, the stockpiling is a violation of the USR permit
and needs to be removed, or an amended application must be submitted. Ms. Hatch requested
a two-week continuance to allow the operator adequate time to remove the existing concrete or
submit an amended application. She further stated the operator has indicated he intends to
complete the conditions for Third Amended USR #842 and record the plat; however, that will need
to be done prior to commencing with a fourth amendment to address crushing concrete and placing
it on the site. In response to Chair Garcia, Ms. Hatch stated the operator indicated he will remove
the concrete from the site to address the current compliance issues, and his intent for a fourth
amendment will be known within two weeks. Responding to Commissioner Kirkmeyer, Ms. Hatch
stated the applicant is in compliance with the Development Standards for the Third Amendment;
however, there are still a few Conditions which need to be completed. In response to
Commissioner Rademacher, Ms. Hatch stated the applicant has not recorded the plat for the Third
Amendment, which was approved on September 27, 2006, and it should have been recorded within
thirty days.
Troy Swain, Department of Public Health and Environment, stated his concerns regarding the
bermed surface piles have been resolved.
Don Carroll, Department of Public Works, stated he would appreciate further information regarding
the on -site concrete and the applicant's intentions for the final use of the concrete. Responding
to Commissioner Rademacher, Mr. Carroll stated crushed concrete is not an ideal material for road
base, since it does generate dust. Responding further to Commissioner Rademacher, Mr. Swain
clarified the intent is to use the crushed concrete as an aggregate road base, and they would be
required to provide dust abatement. He further stated because the concrete was not generated
on the site, it is not an approved use. In response to Commissioner Kirkmeyer, Mr. Swain stated
the facility operator would be required to obtain the appropriate air permits in order to crush the
concrete. He stated portable crushing is allowed, if permitted, and the facility operator could
contract with an outside party to crush and place the material and then leave the site. In response
to Commissioner Rademacher, Mr. Swain stated the crushing companies typically already have
their portable permits in place as a means of doing business. Responding to Commissioner
Kirkmeyer, Ms. Hatch stated on -site crushing would require a fourth amendment, and she
reiterated they have not completed the plat for Third Amended USR #842. She further stated,
other than addressing the concrete issue, the operator is in compliance with Second Amended
USR #842. Mr. Swain confirmed the bermed piles have been corrected and the tires have been
moved into excavated pits. He stated the pit depths vary across the site; however, they must meet
the two -foot separation from groundwater, and he noted staff also monitors the groundwater levels
at an adjacent facility to the north which indicates there is an approximate 32 -foot depth to
groundwater. Mr. Swain stated there is a total of five cells currently open for disposal; however,
one is almost full, so four remain for disposal right now. Responding further to Commissioner
Kirkmeyer, Ms. Hatch stated none of the Conditions of Approval listed under 'Prior to Recording
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HEARING CERTIFICATION - SHOW CAUSE HEARING FOR TIRE RECYCLING, INC.
(2NDAMUSR #842 AND 3RDAMUSR #842)
PAGE 3
the Plat' have been completed, and she reiterated approval was granted in 2006. In response to
Commissioner Rademacher, Ms. Hatch stated the applicant is operating under the Second
Amendment, and he cannot operate under the provisions of the Third Amendment until the plat is
recorded.
Charles Johnson, Colorado Solid Waste and Materials Management Unit, responded to
Commissioner Kirkmeyer, stating the money for the Financial Assurance is in place; however, they
are negotiating with the bank on the assignment component. Mr. Johnson stated the operator has
the money in place in the form of a Certificate of Deposit at the bank, which was regionally
approved by Wells Fargo six to eight months ago. He stated it was forwarded to the local bank six
to eight weeks ago, and as late as last Friday they suddenly expressed concern. He stated the
attorneys for the various parties involved are currently working to resolve the administrative
process. He explained the State has a variety of tools by which to access the money to cover
closure and post -closure activities, if necessary, and the reservations expressed by the local bank
were a surprise.
Dwain Immel, President/Operator, stated he brought four semi -trailer loads of concrete to the site,
with the intentions of bringing in approximately 100 more loads to be crushed and used as road
base on the driveway and entrance area of the facility. He stated the contractor has several
hundred thousand tons of concrete from the demolition of the Great Western Sugar Factory in
Greeley, Colorado, and he was willing to bring his portable crusher to the site as a means of
disposing of the material in a beneficial way. Mr. Immel stated he was not aware that depositing
the concrete would be a problem, and he noted the material cost considerably less than buying the
prepared material. He promised to remove the existing concrete piles; however, he indicated the
material does hold up well in the sandy loam soil at the site and provides good drainage. He further
stated he thought the Financial Assurance was complete; however, the local bank recently
expressed concerns, therefore, the various attorneys are working to conclude the outstanding
administrative issues. Mr. Immel stated the Third Amendment was pursued as a result of a
previously -planned cryogenic operation; however, when that venture ceased, he decided to
suspend work toward completing that permit. He stated he now intends to finalize that process
within the next sixty days, although a majority of the listed uses will not be utilized.
Peter Katz, Kingston Energy Development, stated he represents the Denver -based waste energy
production developer. He stated Kingston is interested in purchasing the tire facility and requests
that, if the Board feels revocation is necessary, it consider suspension as an alternative. He stated
they have exclusive access to new processing equipment that transforms shredded tires into
marketable byproducts with value and market demand, and a revocation would make their business
venture economically infeasible. Mr. Katz stated, if the permit is suspended, Kingston can continue
working to modify the design and operating plan to accommodate compliance. He stated the site
ensures access to a long-term supply of tires, and they do have off -take agreements for the fuels
that are produced from the tires. He reiterated a 90 to 100 -day suspension is preferable to a
revocation, and stated they have the technology available to deliver financial and environmental
benefits to Weld County and the State of Colorado.
Vern Tharp, Solution Financing, LLC, stated if the issue of revocation is discussed, he also
recommends the Board consider suspension as an alternative. He stated Solution Financing was
the primary creditor to the other landfill in El Paso County, and they worked through the bankruptcy
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(2NDAMUSR #842 AND 3RDAMUSR #842)
PAGE 4
process to successfully sell the Midway facility in December. He stated they have been involved
with this issue for approximately five years, they understand the uniqueness of the marketplace and
are familiar with the creditors that are involved, and they believe that the tires have real value.
Mr. Tharp stated they also understand the safety issues that must be considered by the County,
and reiterated that should a penalty action become necessary, he believes suspension of the
permit allows for continued efforts to correct the situation. There being no further comments, Chair
Garcia closed public testimony.
In response to Commissioner Rademacher, Ms. Hatch stated the Third Amendment cannot be
further amended, rather, a Fourth Amendment would need to be processed. Responding to
Commissioner Kirkmeyer and Mr. Barker, Ms. Hatch confirmed the facility is currently being
operated under the Second Amendment and there are no crumb rubber activities taking place,
since the Third Amendment plat has not been recorded. Responding to Commissioner
Rademacher, Ms. Hatch confirmed the Third Amendment should have been recorded within 30
days of the approval, and the Board may consider revocation if the approved activity does not
commence within three years. Mr. Barker stated the Board also has the option of granting an
extension of the recording requirement to allow adequate time to complete the remaining
Conditions of Approval; however, once the plat is recorded, they are authorized to operate.
Responding to Commissioner Kirkmeyer, Mr. Barker stated a suspension would cease operations
while the applicant works to bring the facility into compliance with the existing permits. He clarified
the on -site concrete is a violation of the Second Amendment and he recommends granting the
operator two weeks to have it removed. He clarified, at this time, staff is not recommending
suspension or revocation, since the facility is now in compliance with the Second Amendment, with
the exception of the concrete.
Commissioner Kirkmeyer expressed frustration with the operator's apparent disregard for the terms
of the Amended Permit, since he continues to do something different between each hearing that
is not in compliance. She stated not having the appropriate Financial Assurance in place is
unacceptable. In response to Chair Garcia, Mr. Barker stated the funds are in place; however, the
mechanism for obtaining the funds is not finalized. Commissioner Kirkmeyer stated if the money
is in place, it is likely that the State Health Department could find a way to obtain them, if
necessary.
Chair Garcia stated he is tired of reviewing this case and agreed that new problems seem to be
presented at every hearing; however, he is not in favor of revoking the permit and would support
a suspension.
Commissioner Long agreed working toward resolving the problems under a suspension is
preferable to the results of a revocation. He stated, based on the comments from all parties
involved, a suspension makes the most sense.
Commissioner Conway stated the entire Board is frustrated; however, the public testimony
indicates there are solutions that will benefit the public, and at this time it is uncertain whether the
funds can be accessed, therefore, he is willing to give them an opportunity to try and work toward
resolving the problems and bringing the matter back before the Board to determine whether they
have any merit. Commissioner Conway stated, although he is frustrated, he must acknowledge
that there has been progress at the site.
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(2NDAMUSR #842 AND 3RDAMUSR #842)
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Commissioner Kirkmeyer commented the Third Amendment included specific Conditions of
Approval which need to be completed before a new operator may commence with the listed uses.
She stated the applicant needs to review, and abide by, the specific Conditions, and she suggested
a lengthy suspension be issued to ensure the operator is able to complete, and record, the Third
Amendment. Following discussion regarding the terms of the suspension, Commissioner
Kirkmeyer suggested a 90 -day suspension would end near the three-year deadline for commencing
with the approved uses under the Third Amendment, and she clarified the suspension would be
for all USR activities, other than those required to fulfil the outstanding Conditions of Approval and
Development Standards. Chair Garcia declined Mr. Immel's submittal of further testimony.
Commissioner Long moved to issue a 90 -day suspension of all activities related to Second
Amended Use by Special Review Permit #842 for a Solid Waste Disposal Site and Facility
(commercial junkyard and salvage yard including tire landfill, storage and recycling facility) and a
Mobile Home for Housing in the 1-3 (Industrial) Zone District, and Third Amended Use by Special
Review Permit #842 for a Solid Waste Disposal Site and Facility (commercial junkyard and salvage
yard, including a tire landfill, storage, shredding, and recycling facility), Manufacturing/Processing
Facility (cryogenic processing/crumb rubber), and a Mobile Home for housing in the 1-3 (Industrial)
Zone District, issued to Tire Recycling, Inc., with the intent of allowing the operator time to obtain
evidence of Financial Assurance, complete the outstanding Conditions of Approval and
Development Standards necessary to bring the site into compliance, and record the necessary
plats. Commissioner Conway seconded the motion.
Commissioner Kirkmeyer stated she understands the health, safety, and welfare concerns related
to revoking the permit; however, she intends to send a strong message that the operator's time is
up and the remaining issues must be resolved. Commissioner Rademacher stated he supports
revocation; however, it is his position that the motion for suspension in no way indicates
compliance. Upon a roll call vote, the motion carried three to two, with Commissioners
Rademacher and Kirkmeyer opposed. There being no further discussion, the hearing was
completed at 11:10 a.m.
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(2NDAMUSR #842 AND 3RDAMUSR #842)
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This Certification was approved on the 4th day of May, 2009.
APPROVED:
BOARD OF C
ELD . O
ATTEST:
Weld County Clerk to the B
BY
Dep
David E. Long
NTY COMMISSIONERS
,COLORADO
meyer c ,
2009-0266
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