HomeMy WebLinkAbout20081803.tiff HEARING CERTIFICATION
DOCKET NO. 2008-02.C
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 A MOBILE HOME FOR HOUSING
IN THE 1-3 (INDUSTRIAL) ZONE DISTRICT- TIRE RECYCLING, INC.
A public hearing was conducted on August 27, 2008, at 10:00 a.m., with the following present:
Commissioner William H. Jerke, Chair
Commissioner Robert D. Masden, Pro-Tern
Commissioner William F. Garcia
Commissioner David E. Long
Commissioner Douglas Rademacher
Also present:
Acting Clerk to the Board, Esther Gesick
County Attorney, Bruce Barker
Planning Department representative, Jacqueline Hatch
Health Department representative, Trevor Jiricek
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 1-3 (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. At said hearing on August 27, 2008, Bruce Barker, County Attorney,
made this a matter of record.
Jacqueline Hatch,Department of Planning Services,stated the Second Amendment was approved
on October 22, 2003, and the Third Amendment was approved on September 27, 2006, for 120
acres consisting of four parcels. She stated the Probable Cause Hearing was held on October 8,
2007, and she reviewed the various Show Cause hearing dates. Ms. Hatch stated the
Departments of Planning Services and Public Health and Environment, and the Platteville/Gilcrest
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Fire Protection District have all conducted site visits and found the first cell was not complete and
that more tires have been added to the site and along the road. She stated the Fire Protection
District conducted an inspection on August 26, 2008, and also found piles of tires blocking two fire
lanes, piles exceeding five(5)feet in height, an increased temporary holding area which is 75 feet
from a well head, and only one cell partially constructed. She displayed photographs of the site,
taken on June 23, 2008, as well as current photos of the site depicting minimal change, other than
an increase of tires at the site. Based on staff's findings, Ms. Hatch recommended the Board issue
an order to cease operations until the new pits are complete and that no new tires be accepted.
In response to Commissioner Rademacher, Ms. Hatch stated the piles of shredded tires are also
limited to five(5)feet,and the shredded product should also be relocated into the pits. Responding
to Commissioner Masden, Ms. Hatch stated there is a 150-foot setback from a wellhead; however,
the facility currently has tires placed within 75 feet. Responding further to Commissioner Masden,
Trevor Jiricek, Department of Public Health and Environment, stated there is no setback distance
from gas storage tanks. In response to Commissioner Rademacher, Mr. Jiricek stated the State
does require containment for aboveground facilities, and Ms. Hatch added there is a slight berm
around the tanks. Responding to Chair Jerke, Ms. Hatch stated the facility has done some work
on the first cell; however, there are more tires than the facility can store at this time.
Mr. Jiricek advised the Board that the facility is in compliance with the Colorado Department of
Public Health and Environment, and the financial assurance is in good standing. Chair Jerke
referred to a letter from the Colorado Department of Public Health and Environment,dated July 22,
2008, indicating the site was temporarily shut down and not state sanctioned. Mr. Jiricek stated
the facility has since commenced operations, and the letter is a mute point, since the facility is now
in good standing.
Donald Carroll, Department of Public Works, gave a brief description of the location of the facility
and stated the existing access and parking areas are adequate.
Chair Jerke confirmed a representative from the Colorado Department of Public Health and
Environment is not in attendance.
Russell Kissler, Platteville/Gilcrest Fire Protection District, stated prior to the Immel purchase, in
2003, there was a Fire Control Plan which was adopted at the time of purchase. He stated his
primary concern deals with the Fire Safety Plan which indicates a 200-foot setback; however, the
tires continue to get closer to the wellhead and storage tanks.
Hal Lewis, Bankruptcy Council for Tire Recycling, stated at the last hearing the facility was on the
verge of filing a motion to approve a loan, in the amount of$120,000.00, to address many of the
compliance issues at the site, and the investor, Peter Fader, appeared as an assurance.
Unfortunately, all of the banks did not sign on the agreement, therefore, the operator could not
proceed with Bankruptcy Court or receive the loan. He stated the operator did cease operations
for a couple of weeks until he acquired the necessary funds to reinstate the lapsed General
Liability,Vehicle,and Workers Compensation insurance policies,and the State is aware the facility
is currently operating. He further stated they are pursuing purchase offers and proceeding with the
sale of another landfill south of Colorado Springs, which is scheduled for October 1, 2008, before
the Bankruptcy Court. He stated the sale of the other facilities will generate approximately
$400,000.00, which will then be available for use at the Hudson facility. He stated there is an
investment group from New Mexico that is interested in negotiating a sale or reorganizing the
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Hudson facility, and those representatives are in attendance today. Commissioner Masden stated
there is still a lot of uncertainty regarding the future of the site, due to the pending outcomes of
sales on entirely separate sites. He stated this has been ongoing for over a year, and he
expressed concern that some of the contractors have not been getting paid, in addition to the
concern for the health, safety, and welfare of the neighborhood and Weld County. He further
stated the Fire Protection District and staff have all advised the site is not safe. Mr. Lewis stated
digging the pits and moving tires are not dependant on the sale of the other site, the contractors
have been paid, one pit has been completed, the second is in the process, and tires are being
moved. He stated it appears the first issue to address is relocating the tires away from the
wellhead and storage tanks, and the remaining options are to sell the property to complete the
bankruptcy process, or reorganize and move forward with a new business plan. He stated Mr.
Immel has made a lot of changes at the Hudson facility to cut costs and generate revenue to dig
the pits, and he has continued with the tire collection business to generate further revenue. He
further stated Mr. Immel has agreed that all new tires coming to the site will be placed directly into
the pit. Mr. Lewis stated he will request that the State submit a subsequent letter indicating the
prior letter is no longer an issue.
In response to Commissioner Rademacher, Mr. Lewis stated if the permit is revoked, it will make
the sale of the property much more difficult, since the potential purchasers want to continue with
the tire collection business. He stated a reorganization does need to take place, and they also
need to start shredding tires for recycling to avoid additional surface and pit storage. He stated
there is money to be made at the facility once recycling commences, which also reduces the
quantity at the site. He further stated any incoming purchasers would have to obtain their own
permit before proceeding with operations. In response to Chair Jerke, Mr. Lewis stated the Fader
Group is still in the process of acquiring the Midway site, and they are still interested in the Hudson
site. Mr. Lewis stated subordinating the first position in a loan is very odd in the normal business
world; however, it is rather common in Bankruptcy proceedings.
Responding to Commissioner Rademacher, Ms.Hatch stated the first pit was still being constructed
on Monday. Mr. Jiricek added the pit has been under construction for a long period of time;
however, Troy Swain, Department of Public Health and Environment, has been making periodic
inspections to ensure it is not constructed into groundwater levels.
Dwain Immel, operator, stated he talked with Charles Johnson, Colorado Department of Public
Health and Environment, who drafted the letter, dated July 22, 2008. He stated customers came
to the site in July and found it closed, so they contacted the State to find out why. Mr. Immel stated
the General Liability insurance had lapsed and he took the initiative to close the facility. He stated
he contacted the State; however,the letter had already been sent, and it was received at the facility
after they had already started operations with the appropriate insurance for the property. He stated
the fuel tanks are empty and have not been used for two years, there is a three-foot dirt berm on
all four sides, and they are not needed and can be removed. Mr. Immel stated he intended to
complete the pits in July,and move the tires using the loan of$120,000; however,when that option
ceased, he had to continue operating to generate the necessary revenue to pay the contractor.
He stated the first pit was scheduled to be completed last week; however, due to adverse weather
and large amounts of rain, the project was delayed. He stated the pit was completed on Monday
afternoon, after Ms. Hatch left, and any further tires coming to the facility will go directly into the pit.
He further stated he is also working to move tires from the surface piles into the pit, and he intends
to have the second pit complete by the time the first pit is full. Mr. Immel stated, if recycling does
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not start by the end of the year, he will then construct a third pit. He noted that using their own
equipment and personnel has slowed the project, and it will take another two or three weeks to
move all of the tires from the surface into the pit. He stated there will be a substantial reduction
in surface tires, and the fire lanes will be cleared. In response to Commissioner Rademacher,
Mr. Immel stated all of the tires on the site will fill the first pit, and they will also receive new tires
daily. He stated the contractor anticipates completing the second pit by mid next week. In
response to Chair Jerke, Mr. Immel reiterated completion of the first pit was delayed by inclement
weather, and the second pit will be done by next week. Responding to Commissioner Long,
Mr. Immel stated the contract has been paid in full for completing the second pit. He reiterated the
failure of the first financing loan was not anticipated, and it took him some time to proceed with an
alternative plan.
Bill Kutza stated he represents the Castillo Group/Earth Care Recycling, LLC, and they are
interested in the Hudson and Midway properties. He stated they will be submitting a request to the
Bankruptcy Court, and to address Commissioner Rademacher's previous question, he stated
revocation of the permit would be a disaster, the investors would not proceed,and tires would likely
be dumped along the roads throughout the County. He stated their plans are subject to approval
by the Board of Commissioners and the Bankruptcy Court, and they have invested $450,000.00
in due diligence to pursue the properties. He stated the funds and time involved with reinstating
a USR would not be acceptable to the financiers, the investment offer will be very generous, and
it will not run the risk of failure in Bankruptcy Court. Mr. Kutza stated they have observed the
operations at the Hudson site, and it is apparent the operator will be able to accept new tires, as
well as move most of the tires to the new pit. He stated the pits hold approximately 500,000 tires,
and there are approximately 400,000 tires on the site. He stated additional tires on the site is better
for the sale of the operation, they have a sound economic plan, and the investors intend to shred
the surface tires and place them directly into the pits to increase capacity and comply with pile
height. Mr. Kutza stated if the sales transaction is completed, they will be bringing the company
into Weld County, and with County approval, the new plant will be more than 100,000 square feet.
Chair Jerke questioned whether the current and proposed USR amendments are still going to be
valid for the proposed intent of the investors. Mr. Barker stated this permit is very different from
any other, due to the long history and multiple amendments. He stated the planning process has
changed throughout that time; however, the amendments have precluded the original uses. He
stated there will need to be a determination as to whether the new proposal will constitute a
Substantial Change, in which case a fourth amendment may be necessary. Mr. Barker explained
the amendment process is very similar to starting over. He stated he is more concerned with how
future uses will fit in with the Certificate of Designation (CD) at the State, which is of more
importance. Mr. Kutza stated the investors have discussed the amendment process with staff,and
they have also been working with the State for the past 15 months, so, there should be no
problems with the CD. He stated they have reviewed the emissions data, and it appears a public
hearing may not be required, since the emissions are so low. He further stated an amendment
would be preferable to starting over, since the recycling is already permitted. He stated the
proposal is solid, and they should be able to proceed either way. He further stated the plant will
take twelve to fifteen months to construct, and they will continue accepting tires to produce
feedstock for their process. Mr. Kutza stated, if the permit is revoked, the investors will lose out
on one year's supply of product, and he clarified the USR process is not a problem, rather, a
revocation would result in an interruption of fuel for their process.
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Commissioner Rademacher stated he appreciates the candid discussion on the potential for the
site; however,the Board also has the burden and responsibility of ensuring the public health,safety
and welfare. Mr. Kutza stated he understands the difficult balance the Board must ensure;
however, he also feels that much latitude is needed to ensure tires are not dumped along the roads
throughout Weld County. In response to Commissioner Garcia, Mr. Kutza stated there will be a
Bankruptcy Court hearing on October 1, 2008,to make their offer,and they hope that, between the
bid and closing, they would work with staff to ensure complete compliance at the site. He further
stated they have budgeted $300,000.00 to address current conditions and immediate compliance.
Mr. Lewis stated the purpose of the hearing on October 1, 2008, is to consider sale of the facility
to Peter Fader's group; however, there are two objections to the sale, since the Castillo Group
investors are willing to pay more, and are involved in the pending sale of the Midway facility. He
stated the sale or reorganization of the Hudson facility is on a different time line,with the sale likely
to take two months to finalize, and up to four months to complete the reorganization.
Mr. Immel stated regardless of what happens over the next two to four months, he plans to use
current staff and management to bring the site into compliance. He stated,with the completion of
the first pit, he is confident compliance will be met. He further stated it will take two or three weeks
using their own equipment and staff, but no new tires will be out of compliance, and he plans to
have all of the work done during the month of September.
In response to Commissioner Garcia, Mr. Jiricek stated if all new and existing tires go directly into
the new pit, the existing condition will be resolved. He stated the Board must balance the
short-term risk of allowing the facility to continue to operate while working toward the long-term goal
of compliance. Ms. Hatch stated although the operator has committed that all new tires will go
directly into the cells, she would still like to see a lot of effort to also move the surface tires into cells
to reduce fire hazzard concerns. She clarified, the cell was very close to completion on Monday,
and it is very likely that it is completed by now.
Mr. Barker stated the Board may dismiss the case if the facility is found to be in compliance, revoke
the permit, continue the matter to a date certain, or suspend operations until such time as
appropriate financing has come through. He stated if the Board moves to revoke or suspend the
permit, they must include findings in the motion, based on the noncompliance issues included in
the notice.
Commissioner Rademacher stated he is not in favor of hearing this case again, since the first pit
was completed just one day before this hearing. He stated although he realizes the huge
implications of having tires dumped everywhere, he is in favor of revoking the permit, in light of the
health and safety issues.
Commissioner Long stated if the permit is revoked, the Board will still be faced with health and
safety issues. However, in an effort to ensure the health and safety of the public, he would support
suspending the receipt of tires until such time as existing tires are relocated into the pit. He stated
he wants to see the facility move forward, and it appears continued operations are necessary to
generate funds for bringing the site into compliance.
Commissioner Garcia stated he has repeatedly observed the applicant avoid completing the
necessary work until the week before a hearing, and the delays are always based on the decisions
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of a third party that the operator cannot control. He stated the item of value for future investors is
the tires. He further stated he is exasperated with this case, since the operator has not been able
to display the ability to maintain new tires, maintain open fire lanes, or complete and maintain the
required cells. He stated he is not certain what amount of time will be sufficient, and he proposed
an indefinite suspension and restricting new tires from coming onto the site until the Fire Protection
District and staff inspect the facility and determine the facility is suitable for accepting more tires.
Commissioner Masden stated this is a convoluted case, and it is amazing how much work gets
done right before a hearing. He stated there always seems to be excuses and outstanding issues,
and although the Board has gone above and beyond in trying to help a business, the operator
continues to improve in some areas while letting other problems deteriorate.
Chair Jerke stated although staff has indicated the new cell was just finished, the facility still needs
to address the issues regarding the height of piles and blocked fire lanes. He stated he does not
want to suspend the operations, because the operator needs that revenue in order to continue
progressing with the work to be done. He stated if the permit is revoked, there will be
environmental issues to clean up throughout the County, and the testimony from interested
investors indicates the incoming tires are an asset. He stated despite the court time involved and
the potential harm to investors, he would prefer a continuance of this case.
Commissioner Long stated if the operator can maintain open fire lanes and ensure that incoming
tires go directly into the pit, he will support a continuance because he understands the need for
cash flow to continue progressing at the site.
Commissioner Rademacher stated although revocation of the permit will close the facility for an
unknown amount of time, he does not want to suspend or continue the case because the operator
has not been proactive in cleaning the site and ensuring compliance.
In response to Commissioner Rademacher, Ms. Hatch stated if the permit is revoked, and an
investor applies for a new USR, the process typically takes 120 days. Chair Jerke stated that
would not happen until after a new buyer is on the site, which may be up to six months.
Commissioner Long moved to continue the Show Cause Hearing concerning revocation of Second
and Third Amended Use by Special Review Permits #842, issued to Tire Recycling, Inc., to
November 19, 2008. Commissioner Masden seconded the motion,with an amendment to require
a suspension in abeyance requiring the operator to submit weekly reports to staff regarding the
number of tires moved to the new cells, the number of cells completed, etcetera, to ensure some
accountability that the work is being done. He further stated, if staff determines the work is not
being done, the matter could be brought before the Board, during a 9:00 a.m. Board meeting, for
immediate suspension.
In response to Commissioner Rademacher, Mr. Barker stated if the motion fails, an alternate
motion will be necessary.
Commissioner Long stated he accepts the amendment to the motion, with clarification as to what
the triggers are. Commissioner Masden stated the facility would still be allowed to receive tires,
while providing weekly reports to the staff concerning the numbers of tires moved or placed in the
cells, documenting that the fire lanes remain open, maintaining the pile height, and ensuring
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setback distances. He stated if those triggers are not met, the matter would be brought before the
Board for consideration of immediate suspension or revocation. Commissioner Rademacher
questioned who would be responsible for measuring the progress. Mr. Jiricek stated the weekly
reports would need to include how many tires are being moved, and staff could conduct weekly
inspections to photographically document the progress. Mr. Barker stated it is appropriate for staff
to keep tabs and compile evidence; however, the Board needs to be the decision maker, rather
than staff determining when the matter should be brought to the Board. Responding to Chair
Jerke, Mr. Barker stated the matter could be continued to a date certain, with the ability to be
brought back sooner, with ten days notice to the owner/operator.
Commissioner Masden withdrew his amendment to the motion, with the understanding that the
operator continue working with staff to ensure weekly progress, and just proceed with the motion
to continue the matter to November 19, 2008, at 9:00 a.m.
Commissioner Garcia stated he feels suspension is still the best way to ensure compliance, and
upon a call for the vote, the motion carried three to two, with Commissioners Garcia and
Rademacher opposed.
There being no further discussion, the hearing was completed at 12:05 p.m.
This Certification was approved on the 3rd day of September, 2008.
APPROVED:
OARD OF COUNTY COMMISSIONERS
LD COUNTY, COLORADO
r
ATTEST: i � t � �
H. Jerke, Chair
Wel ounty Clerk to the Boar .t , ,?� ec,LA rr . ��
, °�\ ert Mali, Pro-Tem
BY: V d / 7/
Dep Cler the Board
F. Garcia
David E. Long
EXCUSED DATE OF APPR VAL
Douglas Rademacher
2008-1803
PL0456
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