HomeMy WebLinkAbout20082381.tiff HEARING CERTIFICATION
DOCKET NO. 2008-02.D
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 November 19, 2008, at 10:00 a.m., with the following present:
Commissioner William H. Jerke, Chair
Commissioner Robert D. Masden, Pro-Tem
Commissioner William F. Garcia
Commissioner David E. Long - EXCUSED
Commissioner Douglas Rademacher
Also present:
Acting Clerk to the Board, Esther Gesick
Assistant County Attorney, Cyndy Giauque
Planning Department representative, Jacqueline Hatch-Drouillard
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 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, then to November 19, 2008. At said hearing on November 19, 2008,
Cyndy Giauque, Assistant County Attorney, made this a matter of record.
Jacqueline Hatch-Drouillard, Department of Planning Services, gave a brief description of the
location of the 120-acre site, consisting of four parcels, and summarized the case history for the
record. Ms. Hatch-Drouillard stated she conducted a site visit this week, and Health staff has been
conducting weekly visits since the last hearing. She displayed photographs of the site,the first and
second pits, and the surface pile at the entrance to the facility, and noted the piles are
2008-2381
PL0456
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HEARING CERTIFICATION - SHOW CAUSE HEARING FOR TIRE RECYCLING, INC.
(2NDAMUSR#842 AND 3RDAMUSR #842)
PAGE 2
approximately ten feet in height. In response to Commissioner Masden, Ms. Hatch-Drouillard
stated the first pit is complete and receiving all incoming tires, whereas the second pit is receiving
existing surface tires. Responding further to Commissioner Masden, Troy Swain, Department of
Public Health and Environment, stated the pits are approximately 25 feet deep, topped with a slight
berm,and do not encroach into groundwater. Ms. Hatch-Drouillard stated despite the efforts of the
applicant, surface tires still remain on the site, and staff recommends a temporary suspension to
prevent new tires from entering the site until the property is brought into compliance. Mr. Swain
stated all incoming tires have been going into the pits upon arrival, and some surface piles have
also been moved into the pits. He noted that staff received only one report since the last hearing,
and then nine were received this morning, and added that there is still work to be done on the fire
lanes and decreasing the height of the piles to five feet. Ms. Swain stated representatives from the
Colorado Department of Public Health and Environment and the Colorado Office of the Attorney
General are in attendance to address issues of concern regarding the lack of financial assurance.
In response to Chair Jerke, Mr. Swain stated the facility operator claims the reports were submitted
in a timely manner; however, he was using an incorrect e-mail address which resulted in the delay.
Hal Lewis, Bankruptcy Council for the facility operator, stated the sale of the Colorado Springs
Midway facility has been approved by the Bankruptcy Court, and the closing is scheduled for mid
December. He stated approximately $400,000.00 to $500,000.00 from the pending sale will go
toward resolving the Closure Bond for the Hudson site, as well as hiring outside contractors to
move tires into the pits and build additional pits. Mr. Lewis stated the facility operator has received
an offer from Bill Kutza to purchase the Hudson facility, and he indicated there is more interest now
that the Midway facility has been sold, making funds available to bring the subject site into
compliance. He further stated, if Mr. Kutza's offer is approved by the Bankruptcy Court, the facility
would likely be in compliance prior to January 2009.
Mr. Kutza stated the principal issue of concern at the subject site is the lack of revenue and having
to comply with the previous mandate of the Board. He stated, due to the current economic crisis,
his investors lost their previous funding source; however, they are moving ahead with back-up
funding, the site is making progress, and he is willing to enter into a limited operating agreement
to move tires into the pits and build a third pit. Mr. Kutza stated the two existing pits should hold
most of the surface tires, and he would like to start construction on a third pit, therefore, his plans
include purchasing Wagner equipment tomorrow for interim use at the site and for any future
operations if the sale is completed. He stated his investors intend to participate in the competitive
bid process, and the sales contract will be contingent upon the transfer of a Certificate of
Designation and a valid Use by Special Review Permit. He further stated they plan to start working
at the site on December 1, 2008, to move surface piles into the pits and start construction of a third
pit. He indicated the revenue will go to the debtor in possession, and he intends to close on the
property in January, and assure complete compliance and appropriate financial assurance. In
response to Commissioner Masden, Mr. Kutza stated he is confident the parties could negotiate
an operating agreement to be effective by December 1, 2008. In response to Chair Jerke,
Mr. Kutza stated the agreement is not subject to a ruling by the Bankruptcy Court; however, the
terms would be conditional upon the successful transfer of a Certificate of Designation and all
appropriate operating licenses. He noted revocation of the existing USR permits will result in a six
to nine-month delay while the new owner completes the re-application process.
2008-2381
PL0456
HEARING CERTIFICATION - SHOW CAUSE HEARING FOR TIRE RECYCLING, INC.
(2NDAMUSR#842 AND 3RDAMUSR#842)
PAGE 3
David Banas, Colorado Office of the Attorney General, stated although the site is not in
compliance, he does not support closure at this time. He proposed a 90-day compliance deadline
before proceeding with closure on the property.
Charles Johnson, Colorado Department of Public Health and Environment, stated all parties
involved recognize the severity of the situation and the tight time line. He apologized for the
ongoing nature of the issue; however,the facility must have the proper financial assurance in place
in the event of a closure, and there is currently a legitimate purchase offer in place, which
translates into funds that could bring the facility into compliance. Mr. Johnson stated he also
supports the 90-day compliance deadline, since an offer similar to the one proposed by Mr. Kutza
worked at the Midway facility and resulted in a first-responder arrangement with staff on the site
to address the necessary safety aspects. Mr.Johnson reiterated the delay is also necessary, since
currently there are no funds available to close the site. In response to Commissioner Masden,
Mr. Johnson stated all parties involved need to reach closure on the situation.
Mr. Kutza stated a 90-day delay will be adequate time to resolve the outstanding issues, he agrees
with the compliance deadline, and the only issue of concern is decreasing the height of the piles
until the appropriate equipment is brought in. In response to Chair Jerke, Mr. Kutza stated his firm
did not purchase the Midway site.
Dwain Immel, President of Tire Recycling, Inc., stated he has been working very diligently to
resolve the issues of concern; however, the limited finances have slowed his progress. He stated
two pits have been completed, all incoming tires are placed in the first pit, and approximately
400,000 surface tires have been relocated to the second pit. Mr. Immel indicated outside
contractors are able to complete a pit in approximately ten days, therefore, he intends to start
construction on a new pit when it becomes apparent that the existing pit only has two or three
weeks of room left. He confirmed the weekly reports were completed and sent to the wrong e-mail
address; however,the issue has been resolved and reporting should not be a problem in the future.
He stated he has been in discussions with Mr. Kutza for more than a year, as well as with other
entities; however, Mr. Kutza's proposal appears to be feasible. He stated the existing financial
assurance bond expired in September, and the financial establishment would not renew the bond
due to the financial crisis in September; however, the sale of the Midway facility will provide the
necessary funds. He stated he is continuing to work toward compliance,and allowing the business
to continue operating has generated limited revenue to continue moving existing tires into the pits.
He stated if the facility is closed, no progress will be made until the site is sold and re permitted.
He indicated the sale of the Midway facility should be complete in the next two or three weeks,
which will generate the necessary funds to bring the facility into compliance, regardless of
Mr. Kutza's proposal.
In response to Chair Jerke, Mr. Banas stated the financial assurance provides money to properly
close the facility, including burying the tires and other post-closure activities. Chair Jerke
commented based on the testimony regarding the sale of the Midway facility, in addition to the
proposal from Mr. Kutza, he is fairly confident the State and County will be able to avoid being
stuck with a financial liability. Mr. Banas stated he is aware that previous purchase deals were
unsuccessful, and he does not want to come back at a future date and hear of partial progress,
therefore, a specific compliance date needs to be set.
2008-2381
PL0456
HEARING CERTIFICATION - SHOW CAUSE HEARING FOR TIRE RECYCLING, INC.
(2NDAMUSR#842 AND 3RDAMUSR #842)
PAGE 4
In response to Commissioner Garcia, Ms. Giauque stated the Board will have two new
commissioners in February; however, they will have the opportunity to review the record and
participate in the proceedings. She noted there will also be a quorum of the three remaining
Commissioners who have heard the entire series of hearing discussions.
Chair Jerke commented the facility is past the danger of the prime fire season and all of the
testimony indicates a continuance would be reasonable. Commissioner Rademacher stated he is
only willing to agree to a 90-day continuance, at which time the site must be in compliance or face
immediate closure. Commissioner Masden stated he believes enough time has passed and the
issues should have been resolved. Commissioner Garcia stated there has been a lot of progress
at the site, Mr. Kutza has proposed an opportunity to build a third pit, and there are other possible
proposals that may expedite correction of the situation. He stated although he previously stated
he would not support a further continuance, he is willing to support a continuance and accept a
90-day compliance deadline.
Commissioner Garcia moved to continue the Show Cause Hearing concerning 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., to February 25, 2009, at 10:00 a.m. The motion was
seconded by Chair Jerke. Commissioner Garcia clarified the intent of his motion includes the
understanding that the current requirements will remain in effect during the interim period until the
next hearing, and the facility will need to meet compliance or face immediate closure.
Commissioner Masden stated this situation has lasted for a long time as a result of ongoing delays
and excuses, and he does not support the motion. Upon a call for the vote, the motion carried
three to one,with Commissioner Masden opposed. There being no further discussion, the hearing
was completed at 12:00 p.m.
2008-2381
PL0456
HEARING CERTIFICATION - SHOW CAUSE HEARING FOR TIRE RECYCLING, INC.
(2NDAMUSR#842 AND 3RDAMUSR#842)
PAGE 5
This Certification was approved on the 24th day of November, 2008.
APPROVED:
BOARD OF COUNTY COMMISSIONERS
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WELD COUNTY, COLORADO
ATTEST: JJ F / ,,4g ? LA 'J A (4',-
e '% Wii . H. Jerke, Chair
Weld County Clerk to th of F 1
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`C j� � Robe sden ro-Tem
Deputy Clerk to the B William F. Garcia
EXCUSED
avid E. Long -- ,.
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Douglasademacher
2008-2381
PL0456
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