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Home My WebLink About850790.tiff RESOLUTION RE: SET HEARING DATE CONCERNING CEASE AND DESIST ORDER ISSUED TO MONSON BROTHERS COMPANY WHEREAS , the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, on the 8th day of April, 1985 , the Weld County Board of Health issued a Cease and Desist Order to Monson Brothers Company, 31466 Weld County Road 391, Greeley, Colorado 80631 , and WHEREAS , the Board of County Commissioners has received an appeal concerning the Cease and Desist Order from Roger Klein, counsel for Monson Brothers Company, and WHEREAS, said appeal was filed pursuant to Weld County Ordinance #56 , with said Ordinance requiring that when an appeal is filed, a hearing date to consider the matter shall be scheduled, and WHEREAS, at the Board meeting of April 24 , 1985 , the Board determined that said hearing be scheduled for June 5 , 1985 , at 2 :00 P.M. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the hearing to consider the Cease and Desist Order issued to Monson Brothers Company be, and hereby is , scheduled for June 5 , 1985 , at 2 :00 P.M. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 24th day of April, A.D. , 1985 . /J }- BOARD OF COUNTY COMMISSIONERS ATTEST: �uf. ata„,1 WLla t.rJ WELD COUNTY, COLORADO Weld County Clerk and Recorder •and Clerk to the Board J cqu ine Jo n on, Chairman �� w EXCUSED (_�„4,r,c.,c•a) Gene R. Brantner, Pro-Tem D'puty County C erk APPROVED AS TO FORM: C.W. Ki `:'y- -2 Go do• " ! acy County Atto ey v/Gr 850790 Frank a ,Gguchi •l / ' t. ��'}}-� //!� EXHIBIT INVERJORY CONTROL SIFT Case �!/Lar.,2e� - 11'Ora : �(y p,..ca.c, - Exhibit �/ %��Submiitted By Exhibit Description A. 2/ /lA,¢r ..�ifzc1 --":2ec/ , �1c�Cl/u�j - (�j/l�ri� B. ��.�'F/ZP ' ioz ,/ J ,i�.torde--Ccrni .42/..26,59. --74/26-25, l-2Tf C. /�(1/J9 a 11// d �/1C/Q �//LQ/ij'.2/� h� {'d 1y /EJa( OA ..(/J'/ X E• X-.o�4v ,� c. tlL - `I- F. /- d . 162.4-1Ofr-vte..0 -- Csit...es„,/cold_. G. tif,__, zio ,),o_x_e_n) .842.0. e ,cf,tve p �� //�7 I I rigs- /J / H. f<� 7J , al g% Of o `,k.) 40 4Ge-- ))/,-%-d-triC ( L s k-) I. -�f i�, ( 'l�l0 of ci 6 0,,,x.,n, �1� /1 �-e- J ((L iz K. --// _2'zit-,/uk - 1O,-1,r-SL 14± /10/- /01L( • L. %424- �nc'G' 51.A�AJ M. N. O. NOT I C E Pursuant to the laws of the State of Colorado and Weld County Ordinance No. 56, a public hearing will be held in the Chambers of the Board of County Commissioners of Weld County, Colorado, Weld County Centennial Center, 915 10th Street, First Floor, Greeley, Colorado, at the time specified regarding the appeal by Monson Brothers Company from the decision of the Weld County Board of Health ordering them to cease and desist from certain conditions deemed to be a nuisance. All persons in any manner interested in this matter are requested to attend and may be heard. Should any interested party desire the presence of a certified court reporter to make a record of the proceedings, in addition to the taped record which will be kept during the hearing, the Clerk to the Board's Office can be contacted for a list of certified court reporters in the area. If a court reporter is obtained, the Clerk to the Board's Office shall be advised of such action at least five days prior to the hearing. The cost of engaging a court reporter shall be borne by the requesting party. BE IT ALSO KNOWN that written materials may be examined in the office of the Clerk to the Board of County Commissioners, located in the Weld County Centennial Center, 915 10th Street, Third Floor, Greeley, Colorado. DOCKET NO. 85-23 RE: Appeal to Cease and Desist Order issued to: Monson Brothers Company 31466 Weld County Road 39} Greeley, Colorado 80631 DATE: June 5, 1985 TIME: 2:00 P.M. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO BY: MARY ANN FEUERSTEIN COUNTY CLERK AND RECORDER AND CLERK TO THE BOARD BY: Mary Reiff, Deputy DATED: April 29, 1985 PUBLISHED: May 23, 1985, in the Johnstown Breeze LX NiBij Affidavit of Publication STATE OF COLORADO ss. County of Weld, f, Millette S. Clarkson of said County of Weld, being duly sworn, say that I am an advertising clerk of THE GREELEY DAILY TRIBUNE, and THE GREELEY REPUBLICAN that the same is a daily newspaper of general circulation and printed and published in the City of Greeley, in said county and state; that the notice or advertisement, of which the annexed is a true copy, has c o. � been published in said daily newspaper for consecutive BrmnstsCO nFSM Narw 1 Wad town eon m (days) iwgg,{tg); that the notice was published in the E}aNR, !414 ' 1.h;4! . IM Nor Oder radio's: low. slpiwr rNnrel.a n regular and entire issue of every number of said aen «+ newspaper during the period and time of publication of Zia mtne said notice, and in the newspaper proper and not in a MAW supplement thereof; that the first publication of said owls notice was contained in the issue of said newspaper M mr 1!R 4i.la.ntn.a bearing date IeSNiU m c+a m's'CRDrs[,s1 IBM Street,Tation Third F Or.N.y, �ETNT-SBS�. Nineteenth REi Abisah1 t- MAIAB Dea41 Erne Isnl.fle: Monson Brothers $J'ri wad ceumyao.n», day of May A.D. 1945_; anRuveaer.°° 1 and the last publication thereof; in the issue of said TIME: T+sP^1• ' " - newspaper bearing date the • BOARD OF TEE COUNTY COMMISSIONERS WELD GOUI TY,-(OLORAD0 BY: •►! FE ERSTEIN r *P,t Nineteenth �� 1t+.+ day of May A.D. 19 85 that said The Greeley Daily Tribune and The Greeley Republican, has been published continuously and uninterruptedly during the period of at least six months next prior to the first issue thereof contained said notice or advertisement above referred to; that said newspaper has been admitted to the United States mails as second-class matter under the provisions of the Act of March 3, 1879, or any amendments thereof; and that said newspaper is a daily newspaper duly qualified for publishing legal notices and advertisements within the meaning of the laws of the State of Colorado. May 19,1985 Total Charpp: $74 17 Advertising Clerk Subscribed and sworn to before me this 19 )ay of _-_May A.D. 19 85 missioyexy mmi Nof' Public AFFIDAVIT OF PUBLICATION THE JOHNSTOWN BREEZE STATE OF COLORADO ) ss COUNTY OF WELD ) I, Clyde Briggs, do solemnly swear that I Pursued to tSwa of tlaaS am publisher of The Johnstown Breeze; d Cnd►ora0et1 Wad that the same is a weekly newspaper O`�8gnc eNN be Teid in tM' ' printed, in whole or in part, and published pmberedeha 9oardd in the County of Weld, State of Colorado, Colorado, .Weld at Tv" and has a general circulation therein; that tanned .teeM tat lCenter, 9151 h s>r N said newspaper has been published ins timFloe a Onelell,el,, continuously and uninterruptedly in said �'' P Y County of Weld for a period of more than =WA catifty_Board fifty-two consecutive weeks prior to the adroit. urvarm . � first publication of the annexed legal notice deemapos Inanyma°a»°�"CehMeaaa,: . or advertisement; that said newspaper has in this matter are require, b been admitted to the United States mails as attend and may be he second-class matter under the provisions of hpdd anY 1PYAfeasd a the Act of March 3, 1879, or any bmee bourt �0 6 amendments thereof, and that said ms epso e�i A " :nbero newspaper is a weekly newspaper duly . kept during "formes qualified for publishing legal notices and to the nh1advertisements within the meanin of the court rs in ltint g cod* � Ie laws of the State of Colorado. �Goo :shall That the annexed legal notice or advertise- Cterk n the BoarQ advertise- be. dsuoe ment was published in the regular and t�aye prior$%��taae ship na'hdrn"' nO entire issue of every number of said weekly `' newspaper for the period of consecu- t3EtTALsOKPIOWNtM[wflftaA tive insertions; and that the first materials may be eaam)nad kt. publication of said notice was in the issue of the dna of the Cleat 1O the n'rR said newspaper dated t--23 A.D. 15...., Board of county coinmNata located in t McWey and that the last publication of said notice Cennest, Th1 . Floor. ,. was in the issue of said newspaper dated Colorado. , A.D. 19 DOCKET NO. 105.23 �� In witness whereof I have hereunto set al to cease r DesistRE: Shaw my hand this 3/ day of lawn Bioothers tOsroed n 31_x A.D. 1J ca t°" •& $0631 . DATE: June 5, 1985 . ... ...... ... 17 TIME:.2:00 P.M. Publisher BoAcon Q,C�ORADO `^"' Subscribed and sworn to before me, a BY: MA ANN Notary Public in and for the_county of FE STEIN Weld State of Colora t is ..xL... day of COUNTY CLERK AND RECORDER ANpp.CLERK W¢ A.D. 19 TO ANeek BO/tRD. BY: Mary ReIR,:(MOW a 29, 1985' DATED: Apr > ,uneNt a191 Public PUBLISHED: May 241985,.Ia _,;.i Avenue the Johnstown Breeze,, c„wIuwn, CO 8Q34 My commission expires .1 `* SHADE, DOYLE, KLEIN, OTIS&FREY ATTORNEYS AT LAW SUITE 300 GREELEY NATIONAL BANK PLAZA RICHARD N.DOYLE GREELEY,COLORADO 60631 GREELEY TELEPHONE HENRY C.FREY (303)353-6700 ROGER A.KLEIN FRED L.OTIS DENVER METRO TELEPHONE WILLIAM E.SHADE (303)659-7576 WELD ninny CQmisfirsrfl,,r,c May 30, 1985 ° ECEI E JUN 31985 j w GREELEY, 00L0 Ms. Mary Ann Feuerstin Clerk to the Board Weld Centennial Building Greeley, Colorado 80631 RE: Appeal to Cease and Desist Order by Monson Brothers Co. Docket Number 85-23 Dear Ms. Feuerstin: This is to confirm that this office has made arrangements for the presence of a certified court reporter to attend and transcribe the pro- ceedings scheduled in the above-mentioned matter on June 5, 1985 at 2: 00 p.m. Thank you. Very truly yours, Roger . Klein Attorney at Law RAK:mkm cc: Mr. Colin Campbell Certified Court Reporter Weld District Courthouse Monson Brothers Company exNill7T F TRANSCRIPT HEARING BEFORE BOARD OF HEALTH 4/8/85 MONSON BROTHERS PRESENT: Board of Health Members -- Dale Peters, Lola Fehr, Dr. T.E. Baldwin, Dale Benson, Barbara Steffens, Mary Tuck. Health Dept. Employees -- Wes Potter, Dr. R.R. Wooley, Mary Paulson, Rick Bossingham, Lee Morrison, Janice Hansen. Others -- Roger Klein, Dorothy Zabka, Al Reichel, Mary Reichel, Bill Hahn, Chuck Carlson, Bill Monson, Dorothy Peters, Marlene Monson, Ed Monson. Tape Side 1 STEFFENS: Wes, are you presenting that? MORRISON: Before you start, I just want to make it clear. This is a hearing pursuant to sections 25-1-613 through 25-1— 621 Weld County Ordinance 56 pertaining to nuisances and abatement of those nuisances. There was a notice hand delivered to Daniel , manager of Monson Brothers, on April 2, 1985, advising of this hearing. For the Board, if you recall, we did have a hearing on the same issues in November of last year, and at that time I advised you by letter, basically, of the procedures to be followed. This is the procedure under ordinance 56 to make a determination whether this condition is a nuisance, source of filth, or cause of sickness, which may be injurious to the health of the inhabitants of Weld County. I' ll also note that nuisance is something that you determine as of the date. It is something that can exist one day, and not exist the next. For the purposes of this, your determination can then be appealed to the Board of County Commissioners for their review. STEFFENS: OK. Wes. POTTER: As you are aware, we did have a hearing on this before, and during that hearing it was indicated by the Monsons that they had, Mr. Monson, that they intended to keep the area cleaned up, and then as the warm weather approached they would cover the onions back up. They have a trench that's approximately 1/4 mile long along the Eaton Draw. I have some photographs I will show you in just a minute here, of the area. At the last hearing, or at the hearing that you heard this, you did not find that it was a source of filth or a nuisance. The reason that I have brought this back in front of you again is because we are receiving numerous complaints from the neighbors in the area, and we have invited some of those individuals to come and speak to you today and I would like them to explain their position, and I would like to show you a set of slides. Four weeks ago this Sunday we began to get a lot of complaints, the person on duty, and I happened to be that person, started to get a bunch of phone calls from the local residents that they were smelling the onions and that they were also experiencing a lot of insect problems. I am not an entomologist, and we were not able to capture any of the insects to send off and have them scrutinized by an entomologist. Suffice it to say they were little tiny insects, smaller than a housefly, which have an affinity to go for your eyes at times. STEFFENS: Gnat—like, would that describe it? Ex/f//3/7 e Monson Hearing page 2 POTTER: Gnat—like, yes. ? : Fungus gnat is how it' s classified. POTTER: I went out to the site the day that some people called to complain. By the time I got there the wind was blowing just slightly, maybe 4-5 miles an hour, and I didn' t see any gnats at that point. You could smell onions, but at not time did we ever get enough onion smell that we were getting an odor violation. The onions in the trench were deteriorating, I've got a set of photographs that I'd like to show you. I'm going to show them here on the wall. KLEIN: . . . I'm Roger Klein, I was here. . . I've had some discussions with Mr. Morrison and Mr. Potter, both, and the way I understand it, this hearing is limited to whether or not this particular trench, at the time the complaint was filed, constituted a nuisance. The reason I say that I am concerned is that the general allegation is very general indeed. It could cover any . . . violation. . . Much of this, a lot more issues were litigated after November at a full—blown hearing. I'm not sure we are prepared after six—days notice to fully litigate and bring all the witnesses we had at the other hearing. However, we are prepared to address the issue of the trench as it existed at the date the complaint was filed. If that is what the hearing is limited to, however, if it is broader than that, or if this practice generally is a health hazard or not, we would need a little more time to prepare for that. I guess I need to know the Board's position. . . STEFFENS: I think, speaking for the Board, that I can say that it is limited to the trench. And it's my understanding we will not be going beyond what we went through in November. KLEIN: And I believe the Board, there is in existence a transcript of that hearing. STEFFENS: Yes, there is. KLEIN: Taking into consideration . . . STEFFENS: Yes. KLEIN: We are prepared to proceed then. ZABKA: I am Dorothy Zabka. And we were not notified of the November 5th meeting or we would have all been there. STEFFENS: I understand that. I am very sorry you weren' t notified. I was unaware that you were not notified, but there is a transcript available of that hearing if you are interested, Mrs. Zabka. That was a public hearing and you are entitled to what was presented there. POTTER: Anyone else have any other comments they want to make? STEFFENS: I think somebody needs to hit the lights. Monson Hearing page 3 POTTER: These photographs were taken a week ago last Friday, turn the lights back on again for just a second. . . The letter was delivered on April 2nd, so these were taken March 29. This is standing along the trench looking toward the north. That's Dorothy Zabka's house, I believe, in the background, and there was, this a very large trench, about 6 feet deep, about 5 or 6 feet wide. The large pile of dirt on the right is what was taken out during the excavation of the trench itself (?) . The onions are deteriorating along the trench and in the trench. This photograph was taken to show the fresh material being dumped on the top on the left, and the deterioration of the material along the road where it is being smashed down by the trucks when they drive through. This is standing on the trench looking down from, standing on the dirt bank on the east side. . .still looking from the north. This is farther down the trench, about half way, looking into the trench. You can see that the onions are starting to grow. There are also a large number of them deteriorating down inside the trench. This is the type of habitat that we were finding the gnats. As I said before, we tried to capture some and they are very elusive, and not very good at that sort of thing, and taking a picture of them is even more difficult than that. . . . people who were out there saw them during that. . . if you have a question about them. THis is standing at the end of the trench to the southeast end of the trench looking at the end of the trench, and you can see Mr. Monson's processing facility in the background, toward the northwest of the trench. This is standing in the trench, looking back to the south on the pile of dirt on the east side of the trench, looking south. This is back on the other side of the trench looking back the other direction again. . . You can see that the, a large number of onions are being dumped into the trench and as they deteriorate in the bottom of the trench and fall in, more fresh materials, fresh onions, are dumped in on top of it. Also quite a bit of spillage, it doesn' t necessarily all go in the trench. You can see in the foreground the materials that were dumped in and are slumping down into the trench as they deteriorate, and farther on down you can see the fresh materials that is being freshly dumped. But there is no question that they are definitely deteriorating in there even though, as I said before, not an odor violation. Members of the Board of Health remember the levels we talked about required for an odor violation, the technical aspect of it. This is the deterioration, the dark color there is deteriorate. . .off to the left a little bit. Standing on the north end of the trench looking back toward the south, looking down into the trench again, sprouting, deteriorating. Looking farther down the trench a little ways. Looking right straight down into the trench. Odor levels are very high here. We didn' t take any readings because we were so close. . . (?) This is taken again to show, this is down on the south end now, looking from the end of the trench to the nearest house in the south. This is looking toward the south east. I apologize, this slide is in backwards, so those of you who are familiar with the area will realize, wonder how that house got there, it's because the slide is in backwards. OK. Anyone have any questions about the slides that I have? STEFFENS: Wes, were those the slides that some of the Board saw at our last Board of Health. . . POTTER: No ma'am, these are all new slides that were taken by Dr. Wooley and Monson Hearing page 4 myself on that Friday. It was, Dr. Wooley and I talked about it and the decision was that on Friday the conditions still existed then on Monday we would take action. It was on Monday that we issued it. . . STEFFENS: Can you define for the Board what constitutes a nuisance? POTTER: From the technical standpoint, probably Lee would be better off to give you a legal definition of it. MORRISON: A nuisance is something that interferes with the adjacent property owners use of their land. It doesn' t necessarily a physical intrusion. It's a matter of interference with their use, it's a balancing kind of concept between the use of the area that is alleged to be the nuisance and the area that is adjacent to it. I think that is the essence, and it would have to be a substantial interference, not just a minor interference. POTTER: As you recall, during the hearing last fall, Mr. Monson indicated that as soon as the warm weather got here they would cover the trench. And because the onion run would be over. We started getting the complaints, we called over and asked that the trench be covered up and we were told on numerous occasions, during a three week period, that as soon as the onion run was over they would do that. It just kept going on and going on and going on, and after three weeks we felt we had to take some other kind of action. So that is the reason that we brought it back to you. Now there are a number of other people here who would sure like to speak. BENSON: I would like to. . . Did you see any rodents in the area? And do you think this would be a habitat for them to breed? POTTER: It could potentially be a habitat for them to breed in because there are places along the Eaton Draw itself, down in the consistent cover areas where they could live and they could come up. I don't, I have never seen any rodents myself nor has any member of my staff indicated they saw any rodents there. There have been some indications that other people have seen rodents, but we have not observed either rodent droppings nor rodents. We have seen the insects that I described before, and the deteriorating onions. STEFFENS: Any other questions before we ask other members of the audience to speak? OK. KLEIN: I would like to ask Mr. Potter some questions. STEFFENS: Certainly. KLEIN: Mr. Potter, have you been out there since March 29? POTTER: Yes, I have, I was out there last Friday. KLEIN: (unintelligible) POTTER: No, I didn't mean to exclude that, I'm sorry. I was intending to Monson Hearing page 5 bring that up. The trench has been pushed in, it has been covered up, completely covered up. There are no deteriorating onions, that I saw, at the location at this time, as of last Friday. I haven't been out there today, but as of last Friday there were no onions. STEFFENS: Mrs. Zabka. MORRISON: Could we ask if you are going to testify that you come forward so that you can be sworn. You can either sit here or stand. REICHEL: My big problem. . . STEFFENS: Sir, before you do that could you identify yourself? REICHEL: I'm Al Reichel. I live within 100 yards directly east of the landfill or the onion fill. And my understanding on this particular situation it is being treated strictly as a nuisance type of situation. To me, not being a farmer, it has been a nuisance. It should be treated more than a nuisance type situation because it is a fungus gnat and if this fungus gnat is not covered by a certain time of the year it lays a larva which becomes an onion maggot. Now my understanding on the onion maggot, it will not hurt a transplant onion. It's strictly a seed onion when it sprouts. Now I've got some documents and I'm going to let you have a copy of it what an onion maggot can do to an area. This is a Washington and Oregon report of what it can do to an onion area. Myself not being a farmer it doesn't bother me, but it should be treated moreso than just a nuisance type of item. From what I have learned, or what I have heard, it basically operates the same as a fruit fly, and this is a situation that is being created by the larva being laid and not being covered by a specific date. Because you do have this larva that is being laid into the ground. It also, maybe she would like to read it? She' s probably a lot better reader than I am. She might read it to the crowd and see what the situation has created in other areas and what they have had to do to control it. Like I say, my big problem is I hate sharing my dinner and my breakfast and everything else with a bunch of gnats. At one sitting, I have had to empty my juice, my milk, whatever, down the drain three to four dead gnats floating in my milk in a 15 minute time period of eating. Now I don' t care who's coming to lunch, maybe I ought to put out small bars of soap and say, hey, if you're going to eat here, wash up before you come in. But this is the situation I'm confronted with and I'd like some justification. Thank you. MORRISON: My question about this is, in reading it, it is a proposed amended order for a onion maggot control area order and regulation in Malheur County, Oregon, and it is basically a notice of public hearing. I don' t. I guess, generally, in administrative proceedings we accept everything and then go with the weight of it, but I questions the relevance of this. It's a twenty year old document with no basis to this. This is a proposed order. We don' t even know if that was adopted. REICHEL: Excuse me, can I answer the man's question? What I am referring to is what the fly itself can do by being a fungus gnat, the larva it can carry. Monson Hearing page 6 Now I was referring not to the document front of it, but what they have had to do to treat this particular gnat. And this is a situation that is being compounded by not covering these onions at a particular date which they specified they had to be covered by the 15th of March. Evidently it is due to the breeding cycle and the larva itself being laid into the soil. It got to get them covered before that point or they are already starting their second incubation of them, which can wipe -out an onion crop. And I do not feel that people in the area that are raising onions that are not transplant onions should have to go to this expense to try and salvage an onion crop when the problem could be alleviated by proper coverage at a certain date. These were the items I were referring to, not the rest of the document. Now, I'm not that hep on the fly itself, and that' s why the document was brought forward at this time to see how we could control this, because it could become a real pest problem in this area if it's not taken care of at this time. So it should be handled on moreso than a nuisance type case. Thank you. KLEIN: May I ask the gentleman some questions? STEFFENS: Certainly. KLEIN: Mr. Reichel, what is your occupation? STEFFENS: I'm in construction. KLEIN: Do you know, what would you (unintelligible) this fly that is apparently bothering your residence? Are you aware that it is actually 99 REICHEL: I have a son that graduated and he was a star farmer award in horticulture. He is now the nursery manager at Arborland Nursery in Milliken, and takes care of all the fungicides and insecticide spraying on the premises, knows what the flies and insects are that affect the nursery, and the Department of Agriculture comes in periodically and makes checks on these areas, and if they have any flies or anything of this nature that is a nuisance or can create a problem they have to be taken care of at that time or the Department of Agriculture will close them down. And this information my son has passed on to me. He took the fly and looked at it, he studied it. . . KLEIN: Excuse me, is your son here today? REICHEL: Pardon, no he's not here today, he's working. KLEIN: Do you know how the climate of Malheur County, Oregon 999 REICHEL: I do not, but they specify the 15th. We could check that out. KLEIN: We're not absolutely sure we are talking about the same 99? REICHEL: It's a fungus, it's a gnat, and the fungus gnat breeds strictly in decaying matter. MORRISON: Let me. . .it's up to the Board as to whether the accept the Monson Hearing page 7 evidence. The procedure which you have previously been advised of provides that evidence will be accepted if such evidence possesses probative value commonly acceptable by reasonable and prudent men or women in the conduct of their affairs. It is before the Board to decide, but I will point out to you again, there is no indication that this regulation was ever passed. It's also a completely different area of the country. So, at least in my mind, it's up to you to decide, it's a question of the probative value of this document. BALDWIN: I think it's worth looking into. . . KLEIN: For the record, we object to the admission of this evidence. REICHEL: This is not an evidence type of thing that I was trying to submit. It is a similar type of situation that we have and the reason I brought this out is because we have a similarity of the same situation and I'm not trying to con this off on anybody, but the fly is there, and we have got the problem, and I don' t like sharing my meals over the top of it. I can go along with the nuisance to a certain extent, but I feel that it's more than a nuisance and should be treated in a manner more than a nuisance type of complaint. STEFFENS: Sir, you've raised an interesting question. As far as I am concerned, in terms of that document, number one it is twenty years old, number two, we don' t know if it was ever passed or not, number three, that document does not tell me, it does not answer any questions that I would have in relation to the fungus gnat and the maggot. I would ask Wes Potter if we have any information on that in terms of your Department, Wes. POTTER: It is not the perview of our department to carry documentation, nor to have expertise in that area. I have a letter here that was from the Cooperative Extension service dated November 2, 1984 that was referred to at the last hearing which they talk about some of the problems that are involved with onion growing and some of the pathogens that are related to it. STEFFENS: Would you refresh the Board's memory with that? POTTER: I'll just read this. I'm not very good at it. The following information, this is written to Ed Monson, it's Colorado State University, Ft. Collins, CO. It's written by Dr. Howard Schwartz, Research and Extension Plant Pathologist, Dept. of Plant Pathology and Weed Science, Colorado State University. "Dear Ed: The following information describes the rationale which supports our recommendation to remove infected onion debris and culls as potential sources of plant pathogens and insect pests. Onion pathogens such as purple blotch caused by Alternaria Porri and Botrytis neck rot caused by Botrvtis species, have been reported as serious problems in Colorado since the late 1920's and early 1930's (see copies of attached information by Bodine and Durrell, and LeClerg) ." (We don' t have those copies) "These workers reported that the pathogens can survive on old trash such as dead onion tops, scales and culls; and offer a source of infection for healthy bulbs and under conditions of high humidity and temperature may result in serious losses in storage or in transit. Colorado (Dickens) and other states such as Idaho, Illinois and New York all recommend that cull dump piles be destroyed by Monson Hearing page 8 whatever means feasible such as herbicides, discing, plowing, or burning. "We encourage growers such as yourself to incorporate as much debris as possible after harvest by discing and plowing. We do not recommend that culls be piled in the open near processing plants or in the vicinity of future onion fields. Therefore, any measure you can take such as burying them in a trench will help eliminate future sources of contamination by wind—blown spores of these plant pathogens or insects such as maggot flies. I will be stressing this recommendation of proper sanitation at our onion grower meetings this winter because I observed many instances last spring of piles of rotting onions (covered by sporulating cultures of these pathogens) near new onion fields and at the Greeley landfill that could have contributed to industry—wide problems with disease and insect pests, thereby forcing the growers to apply more pesticides. "I hope this information sufficiently explains the rational behind our recommendations of properly dispose of onion culls." We don't have the references that he referred to in this, this is just a letter that is in the file, and quite frankly, I don' t even remember at this point who introduced it, it's probably in that big thick transcript as to who introduced this letter at that point. We don' t have a lot of expertise in our department as far as onion maggots or that sort of thing, and as a matter of fact, I had not intended at this point to bring it up. I was relying upon the previous testimony as far as the impropriety or appropriateness of disposing of those onions as that point, from the last hearing. What I, my point of reference at this point was the fact that we have a lot of complaints as to, the reference of being a nuisance, not whether it's appropriate to bury those. One thing that was brought out was that Mr. Monson did say that it was his general practice as soon as the weather gets warm to cover those onions, and I think that and I think that was indicated as being one of Mr. Hoshiko, that was one of his suggestions that as soon as the weather got warm that would be important, and I think that part of what predicated this to come back before you was the reluctance we observed to cover those in the warm weather. KLEIN: May I ask Mr. Potter just one question? Did these complaints arise when the weather turned warm? POTTER: Right as it turned warm, yes they did. KLEIN: Four weeks ago yesterday, or four weeks ago next Sunday? POTTER: Four weeks ago last Sunday, yesterday. KLEIN: Thank you. ZABKA: Getting back to what Mr. Reichel produced for evidence, or whatever, Dr. Schwartz from Ft. Collins sent me that paper himself. He said that they are definitely in, it is definitely in order that they go by that very strongly now. We spent a lot of money at CSU, they spend a lot of money at Washington State and all these other states, to try and better the onion situation. So I mean everything that everything that's said there is true. Dr. Schwartz from CSU sent that to me. I'm sorry, I'm Dorothy Zabka, I live Monson Hearing page 9 at 31601 WCR ?? And I would like to get this straight. In the manuscript from last meeting, Mr. Monson said I was a competitor. As far as I'm concerned, I am not a competitor. This has nothing to do with our businesses. THis is a personal matter, and as a competitor we work onions, they work carrots, and we work potatoes. So as far as I'm concerned, I'm not a competitor of Monson's. BALDWIN: Do you grow onions? - ZABKA: Yes, we grow onions also, and we are very particular what we do with our onions. We dispose of them up at the landfill, we do not dump them out on our fields or anywhere near. BALDWIN: Do you feel that his onions pile poses a hazard to your onion growing operation? ZABKA: We're further away than that, but I'm sure we had a farmer that lived right across the road. His name was Bob ??? and for the last 3-4 years he had nothing but maggots in his onions. We've had the college out and everyone else, and they said it was from the onions being dumped. . . KLEIN: Objection. I'm really concerned the amount of hearsay testimony and all the statements being made on the basis of what somebody from CSU says 999 The normal rule is the witness may only testify to what's in their own personal knowledge not what's been relayed to them by third parties. This puts us at a tremendous disadvantage not to be able to cross examine the statement, because the proponent of the statement is not present. POTTER: Mrs. Zabka, would you explain to the Board of Health the type of things that you have talked to my staff as far as your personal. . . MORRISON: I think we need to get this resolved first. As I advised, and as I think Roger's aware of as well, the standard is somewhat relaxed. The evidence is, if you may, accepted if it is evidence what possesses probative value commonly acceptable by reasonable and prudent men in the conduct of their affairs. For you to judge, keeping in mind that one of the issues you would take into account is if you are getting information straight from the person of getting it second hand. So at this point you should give some indication to the parties as to whether you will accept that as evidence, in terms of someone from CSU says. . . STEFFENS: I think the letter is the thing that we would want to rely on, more than someone repeating a conversation. REICHEL: Al Reichel. I want to back up Dorothy's situation here. It's not strictly hearsay. The farm that she's talking about, Bob Cowar(???) , that' s a family farm which I am part of as a son-in-law. So I know the situation there because dad—in—law has mentioned it, brother—in—law has mentioned it, so she's not going on a one—to—one basis because my brother—in—law has had this problem. So I have got to verify that her statement holds true. Monson Hearing page 10 BENSON: Have you seen these particular insects in their onions? REICHEL: I have seen them, they have come into my yard. BENSON: I mean in your father—in—law's onions, have you seen these particular insects . . . REICHEL: I have, because the onion crop is adjacent to my fence. And he goes in and fumigates ?9 for the maggots. They have moved over to the boundary line. On days when I was working my flower beds, which is about 6-8 feet from the onions, while working through the soil it was literally covered with them. They have moved out of the field area to get out of the path of the spray and had moved into my flower beds, so I know they are there. I seen them, personally. ZABKA: We have handled Mr. Cowherd's (?) onions for many years, and this year we were, when we were in the storage, I have not, I did not see it myself. But the men that work for me said the gnats were bad in there of all the decayed onions, and Bob Cowherd has people out in the field, walking the field and throwing these bad onions out of the row as much as he could so we wouldn't get any in storage, because the infectate other onions that are in there. KLEIN: You say he throws them out on the road? ZABKA: No, he throws them in his field as he's going down the row, he puts them to the side and discs them up after he finishes. STEFFENS: Any other questions of Mrs. Zabka? Would anyone else like to speak at this time? KLEIN: May I ask a few questions? As I understand, Mrs. Zabka, you deposit your onions at the Greeley landfill? ZABKA: Yes. . . KLEIN: Apparently that is the same Greeley landfill that Dr. Schwartz refers to in his letter, that he says he's observed. ZABKA: No, I'm sorry. The one that he referred to I think was out on 8th Street, and the one the Monson's had, and then he did observe the one up at Eaton. The people up there, when we take a load up they always try to get them covered. KLEIN: I don' t see anywhere in this letter that he is referring to Mr. Monson's. ZABKA: Well, he did not pacific (sic) say anywhere. KLEIN: You not only grow onions you also wholesale onions. ZABKA: Right. Monson Hearing page 11 KLEIN: What is the name of your company? ZABKA: Martin Produce Company. We have been in business 45 years. KLEIN: And you are telling this Board you are not in competition either as a grower or as a wholesaler? ZABKA: No, I would say not. Because they ship in different areas than we do, and I would not say that we were competitors. Personally, I don't feel competitor to Monson. KLEIN: The date that Mr. Potter was called out, was there some sort of meeting at your house that day? ZABKA: When was this? KLEIN: Four weeks ago yesterday. ZABKA: No. I was at home, and I went out to the gazebo in our house and it was solid black of gnats. Mr. Reichel's son Tim came up and rang the doorbell, and I went up and said Dorothy, do you have gnats? and I says, "We are getting infested with them." KLEIN: So, to answer the question, there wasn't a meeting. . . ZABKA: No sir. Mr. Reichel's son came up and told me, and I said I will call Mr. Potter. BENSON: Are these gnats of any health hazard to humans as they are to onions? ZABKA: I don't know, I imagine they would be after a while. I have a greenhouse on the south side of our house. I walked into that greenhouse, and I take very good care of my greenhouse, it was infested with gnats, and how they got in there I don't know. I don' t open my doors, but it was just loaded, and I went and got some spray, went to town and bought some spray, and sprayed that greenhouse to kill all those gnats. It was terrible. KLEIN: Are there other onion field besides, in the surrounding areas. . . ZABKA: Well, Mr. Hoshiko, and Watson, no not Watson, Steve, uh. . . KLEIN: And they didn' t leave their onions in the fields (unintelligible) . . . ZABKA: What were you saying? KLEIN: The onion growers that are in the immediate area, are they leaving left—over culls in the fields to till them under. . . They don't harvest every single onion. . . ZABKA: I imagine if they harvest like we do, we have very few onions left in our field when we are through harvesting. Monson Hearing page 12 M. REICHEL: . . .asking if it were a health hazard. . STEFFENS: Would you identify yourself please? M. REICHEL: Oh, Mary Reichel, . . .my father which lives right, just the house north from us. We live on the home place. In the spring, when he is home, he lives in Arizona in the winter time because he had a stroke about ten years ago. And it's very important that he walks all the time because he' s lost his equilibrium, and so he has to walk, and that's why he goes to Arizona to winter. He has an allergy to insect bites, and many times when those gnats, last year they were bad but nothing like we have this year. He'd either swell up so bad we'd have to take him to the Doctor. They told me, well, he's not supposed to be outside, well, they get in the house. It could be a potential health hazard to him, not to you, but to him. STEFFENS: Do you have anything more, Mr. Reichel, you had your hand up. HAHN: My name is Bill Hahn, I live at 190 '0' St. I'd like a point of clarification if I could get it. The first meeting we had with the Commissioners it was brought up that a farmer has a right to plow under agricultural refuse. Where do you draw the line between agricultural refuse and open garbage dump? STEFFENS: Well, that questions has been raised before, it has been a questions in the mind of the Board members, too. The only thing that I have to go by is the Solid Waste Disposal Sites and Facilities, and the definition of that. In reading through that I have not been able to see anything that would say that Mr. Monson's was other than an agricultural, it doesn't qualify. HAHN: Is there anybody that has a copy of the law to be read? STEFFENS: I've got it right here. HAHN: Plowing under is one thing, but the trench we say is certainly not anything that you plow under. STEFFENS: No, it can be covered. But it is not something that you plow. . . HAHN: And I doubt that those onions were raised on that land. There's not enough land there to raise that many onions that he's throwing away. MORRISON: I think that this relates to incorporating agricultural wastes into the soil, it doesn' t provide. . . HAHN: No limit on the amount? BENSON: I'd like a point on this, because, as I understand it this is a custom processing plant. The way that the law relates to me is the fact that an individual farmer with his wastes is not considered a disposal site. Is that the same as somebody that processes them for a fee and dumps someone else's that they have processed for a fee into that land? Monson Hearing page 13 MORRISON: There's two problems here. One is you are not in a position as a Board to make a determination . . . BENSON: I know, that's why I'm asking you. MORRISON: . . . that's up to a court, so the only issue to you is whether it's a nuisance. It doesn't seem to say it can only be your own waste when it comes to agricultural waste. When it is other types of waste, it can only be your own waste. But it does not, it seems to give an exception that includes agricultural wastes, generally, not just those generated from . . . POTTER: This was brought up at the last hearing and I referred this to the State Waste Management Division, and the Director of Waste Management, Ken Wasche, evaluated this and got back with me before the last hearing and said that as far as the State Health Dept. was concerned, in their interpretation of the Solid Waste Disposal Act, they felt that if the entity that owned the property owned the onions, and the property was zoned agricultural, they were not, they did not consider that to be in violation of the regulation. It may be a very stretchable point, but I have, there's no way I can make any change on it. We had no basis to bring any other action under the Solid Waste Disposal Act. . . STEFFENS: Except nuisance. CARLSON: Chuck Carlson. I got a little bit of a problem with this when I was a Commissioner I looked into this thing a little bit and I'm for agriculture and always have been. I would like to see this solved here before we get into the State, because I think if we get into the State we're going to run into a lot of problems, just like you put out before. If we can't take care of our own refuge (sic) on our agriculture grounds, we're going to have a lot of problems. But I don't thing that we can take care of other people's refuge (sic) on our grounds. I don' t think that's right. I think that's being enforcing things on other people that is not right. This is a commercial onion development, working unit, and I think when you get away from handling your own onions and putting your own onions back out on your own ground, I think you're getting a step away where you going to have to. . . START SIDE 2 I think that if we go beyond this point and we get into this too deep and force this issue too far, the State Health Department and the EPA are going to get into this thing, and we're going to get into a bunch of problems, that's going to cause unmounted, unsurpassed problems to agriculture today. We've been fighting as much as we possibly can to be able to spread our own manure out on our fields, to take care of our own refuge (sic) within our own, workable unit, and doing that, and they've kind of left us alone, but when we start taking this commercially, and taking a lot of it, and putting it in one spot, then we're stretching that fine line that you just explained to us. And I think that we're going to get into some trouble now. I think that we're at that point right here. I really do. I've been past there, I live just a mile and a half down the road from there, and there is a problem. These people are not fooling you. I mean, when we get a north wind, we get a lot of gnats at Monson Hearing page 14 our place. And we get the smell of the onions, and we get the smell of the onions over the feedlot. Now, I, you know, the smell of the onions over the feed lot, I don' t want to argue this, I want to keep this thing totally local as we possibly can. I don' t want to get it, give the State Health Dept and I never got along anyway, but I fought like mad to keep it right here at home. So we could make our own decisions at home. But, boy, let's don' t stretch that point at home here so we get into this fight, cause we' re going to get into a fight where we're going to call the State Health Dept. in and then we' re going to have a bunch of problems. And I think it's right to that point. BALDWIN: Could I ask Mr. Monson . . . STEFFENS: Yes, yes, I believe he's sitting next to Mr. Klein. BALDWIN: (unintelligible) KLEIN: We were just waiting until the county rested it's case I guess. We're prepared to reply. ZABKA: Last Thursday Monson's had a ??? closing trenches, but on the north side of the drive there is a big pile of white onions, and there is another pile there that was not covered. I went down this morning and it's loaded with gnats. Yesterday we had ten people at our home for dinner, and I mean we fought gnats all through our meal, it was a mess. I said I don't know what we' re going to do. We didn' t have the doors opened, we had the windows closed. It's a nuisance, I mean what can you do? We've never had it as bad as we had it this year. BENSON: Do you know that those onions, do you know where there source was? ZABKA: What do you mean? I'm sure they're part of Monson's onions. I don' t know of anyone else dumping down there other that Monson's, but I went down to see if they were covered, but they were not covered. POTTER: That's on the north side of the road? ZABKA: Yeah, on the north side of the road. . . BENSON: Was there any other produce in there beside the onions? ZABKA: Just the onions. Down the hill, where Monson's had their trench, there was a picture of it Mr. Potter, on one of your slides, they're still there. Just a bunch of white onions over there and then there's some yellows over there and that's on Union Pacific property. I know two=three years ago Monson's were dumping on Union Pacific property. I called Union Pacific, they came over and went over to Mr. Monson and told him to not dump his onions on their right-of-way and he covered them up and it had been, up to this point there is some over there now. (looking through slides) Monson Hearing page 15 POTTER: You can see 999 ZABKA: Yeah, right there, and there' s some more east of that. POTTER: I remember now 999 ZABKA: And they were not covered. STEFFENS: Unless someone has something else" to say I think we'll let Mr. Monson . . . B. MONSON: I'm Bill Monson. I was wondering if there was anybody in the room that could tell me where the origin of those gnats came from? And I'd be willing to bet you it came out of my manure. From the feedlot. 99999 B. MONSON: Well, possibly. 99999 Could they haul the manure out a spray it? B MONSON: But I don' t think it's practical. 99999 Well not for them, but it is for us. POTTER: Mr. Monson, I did not go over and inspect your manure piles anywhere so I could not really say one way or the other. I did get down on my hands and knees and look at the onions in the trench, and there were a lot of gnats harboring in and around those. . . B MONSON: Ordinarily an onion won't produce any heat. They haven' t really (paid?) that much. But you have to have heat to produce the conditions that will hatch the egg. I mean, that's my contention. POTTER: No one in my staff is an expert on this so I am not going to comment on that one way or the other. I just, I did get down on my hands an knees to look, and Dr. Wooley was out there, and he saw a multitude of gnats. And Chuck Carlson told me he had been there and seen them all in the trench as well. B. MONSON: Let me say one other thing. In my home I have houseplants and we get gnats from the houseplants. And, of course I could prevent it I guess if I were to use something in the pots but there is one source, too. STEFFENS: In the number that's being described, Mr. Monson, do you get that number. . . B. MONSON: You mean a lot of them? STEFFENS: Yes, from the number that's being described here where they' re falling in your food. . . B. MONSON: No, but there is some. . . Monson Hearing page 16 STEFFENS: There are some. BALDWIN: Mr. Monson, does it bother you at all that . . . B. MONSON: It definitely does. . . BALDWIN: Just a minute. Does it bother you at all that if some of these allegations about a scourge on the onion business were true that it might endanger onion farming in your area and hurt your business? Does this bother you at all? You know more about onions than we do, is that a worry of yours? B. MONSON: You know like certain people claim, well, they disc them under, they don' t disc them under, they just stir them around on the top about that many inches. You still have a few onions that are on top and unless you plowed about 14 inches deep you would not really cover them up. ZABKA: That's getting back to where Monson had their landfill where they disc their onions up, then they are not discing them under. There are still onions laying there, even if they go out and disc them up, they don' t go out there and plow, they disc them under. So there are still onions, rotten onions, out there in those fields. POTTER: If I could make a comment, Mr. Monson, when we were out there the last time you plowed, you had a good big 14" plow and they were really turning the onions great. This is about the second or third time it had been covered with onions and plowed, and they were turning old onions back up again, so ??? Not on the whole farm, though, just in this one little spot. . . STEFFENS: Mrs. Reichel? M. REICHEL: As far as gnats, cause there's always been gnats as long as I can ever remember, but the last year they were worse, but this year I mean, it is just horrible. I don't know where they come from and all, and I know that you have to live with it, but 999 all through the years I have, but not, I mean it's really and infestation of them, they are really bad. STEFFENS: Mr. Reichel? REICHEL: Well, wife made a comment she didn' t know where they come from. This particular day, like Dorothy said, (Timmy?) , I said, where are we getting all these gnats? He says, a gnat that lives around decaying matter. It's a fungus gnat. I says, well, he says, I think I know where they' re coming from. So he went over to the onion trench, he walked over, and I know he was trespassing on Mr. Monson's property, if he wants to prosecute, that's 999 But the gnats were so bad that particular day that both of my sons went over there, and the gnats were so bad that they had to literally cover their face, they could not breathe, they had to back clear out of the trench area. That same day I opened the garage and within a period, we had a little bit of a western breeze, not strong, but within a period of a hour, my garage and shop were so infested with gnats the windows were literally covered like a beehive and if you need some gnats, they're still laying in the shop around all the Monson Hearing page 17 outside wall area where they were sprayed, I'll bring you two quarts, if they haven' t dehydrated. But this is how bad it has been, and it's plumb ridiculous. Thank you. STEFFENS: We really need to get on and let Mr. Monson and his attorney respond now. Some of the Board members are going to have to leave soon. KLEIN: First I'll call Marlene Monson as a witness. M. MONSON: I'm Marlene Monson. I'm the sales manager at Monson Bros. About a month .ago I got a phone call from Millie Turner who was with the Health Dept. And she asked me, she said, we've had some complaints and we were wanting to know if you could start covering up your trench. And I said, well I don' t think there's a problem with that, let me see what we can do. So Eddie and I talked about it and at that time we figured that we'd be done running onions in about a weeks' time, so we decided that after that week we would call ?? and have them come out. At that same time the onion market just went to pot, and nobody wanted onions, so the process kept going on and on and on. Mr. Potter, about two weeks later, called me and said, you told me, you know, that you were going to cover it up, and I said, yes, I know, but what we are trying to do is wait until we're finished so then we can go in, cover it all up, get it all cleaned up so it will sit there until August and we start again. And in November when Eddie was here in front of the Board, that's what he told the Board members that he would do, when he was finished with the operation that he would cover the trench and get it all cleaned up. And that's what we did. It just took us longer than we had anticipated. Sometimes it's hard to know when we're going to be able to finish. We can estimate how many ?? we're going to have, but it just depends, the market it something that goes on every day. We might have good demand one day and not good the next. So that's what happened and that's why the trench did not get covered. But we had all good intentions to get it covered, and we were finished last Tuesday and by last Thursday the trench was covered, totally, and it is covered now. STEFFENS: In the future would it be possible for you to cover the portion of the trench that is full, instead of waiting until all the onions were out. . . M. MONSON: Yes, ma'am, this is what I, when I, after (disc clean specialists??) covered it up this time I called them and said, you know, we're going to go to a hearing Monday and I need to know what you could do. Could you come out, like, on a third, like the trench would be covered, or filled up a third, could you come out and cover it? And they said, sure, that they could do that. So that's something that we are planning on doing for next year. What we're using this, we won't be digging another trench until probably right before the ground starts to freeze, because in the summer months when we can go out and disc and plow, we plow one week and then we disc 929 for about ten days and then we disc, and then we keep that practice on. And then when the ground is frozen we can't disc and plow, that's when we use the trench. But yes, we could cover it periodically. KLEIN: Ms. Monson, you're Ed Monson's sister? M. MONSON: Right. Monson Hearing page 18 KLEIN: And who are the owners of Monson Brothers? M. MONSON: Ed, myself, and my father. KLEIN: The gentleman next to you, is this your father? M. MONSON: No, this is my uncle, and he owns Moro Farms. KLEIN: But he has no 97? M. MONSON: Right, no. KLEIN: You weren' t here for the last hearing for what reason? M. MONSON: I was in an automobile accident the Friday night. I think you had the hearing Monday, and I was in a car accident, so I was unable to attend. KLEIN: You, as co—owner, are responsible for Monson Brothers 79? M. MONSON: Right. KLEIN: Have you since, while the trench was covered up, taken photographs of the trench? M. MONSON: Yes. I took photographs and I have them here, to show you. . . KLEIN: The photographs were taken on what day? M. MONSON: They were taken Friday, Friday afternoon, I guess. . . KLEIN: ???? M. MONSON: Yes. KLEIN: I offer these in evidence. STEFFENS: You've seen the trench covered, Wes? POTTER: The trench itself is covered. As I recall there are some onions down along the telephone pole there. Dr. Wooley and I took a look around the whole area there, and the only place that we did see was. . . There are still some onions visible out in the field from last fall's rotation, and then there are still some along that one STEFFENS: Are they in piles, or just scattered around on the . . . POTTER: The one's out in the field have been spread with a manure spreader as we talked about last fall, and they were plowed under, and they are still able to see. If you walk through the field you can see a couple of them sticking up, but mainly the only place that there's any large amount, it's not really that, I mean, maybe three or four 100 lb. sacks would be about, maybe, the white ones that are dumped along the telephone pole. And I think that is on Monson Hearing page 19 the Union Pacific Railroad property. BENSON: Didn't last year, when it got to be about August, didn't you start receiving complaints because the onions were being spread, but they weren' t, because of the concentration in the field, they weren' t getting completely plowed under? Or the weren' t being completely disced under, and we were starting to have the same problem then? POTTER: They were getting completely disced-under, but what was happening was, they would cover the field with onions and then plow it, and then cover the field with onions and then plow it again, and about the third time you end up plowing the onions back to the surface. BENSON: Are you planning on, from what I gather from the last discussion we had like this, you' re going to continue to put them on this same field and in August I think we have to look to that, because I can see this same problem coming up again in August. And I think we need to get that part of it settled as well. Otherwise, what I'm trying to say is that from August everybody's going to be complaining because you've got onions out there and they're being covered up and the next week they' re being brought to the surface again. KLEIN: I might point out Ms. Turner's testimony at the last hearing, she said when she went out there it was about 10% cover of onions. "After the plowing was finished I would say that the onions were 99% covered with soil. There were very few onions visible after the plowing operation." I'm reading from page 4 of her testimony. . . STEFFENS: Let me see if Mr. Klein has anything. . . Do you have any more, Mr. Klein, before we. . . KLEIN: Sure. So, Ms. Monson, this year's trenches, was it covered under significantly later than in previous years? M.MONSON: Definitely, because we had more onions and because the market, it was a different marketing situation as far as ?v9 KLEIN: But you do realize there is some relationship of the temperature. . . M. MONSON: Definitely, it got warmer a lot sooner this year than it had ever. . . STEFFENS: Mr. Reichel, would you be quiet please. KLEIN: So what would you do in the future if the same problem were to arise and you had a late season. M. MONSON: We'd probably cover the onions that were open in the pit, we'd just cover them. KLEIN: Are you aware of these two other piles that were referred to by Mrs. Zabka and Mr. Potter? Monson Hearing page 20 M. MONSON: There's a few white onions scattered on there, near the railroad by the telephone pole. KLEIN: Will you take care of them? M. MONSON: Yeah, that's no problem. REICHEL: I'm sorry I interrupted a while ago. . . STEFFENS: Mr. Reichel, I'm not sure Mr. Klein is finished. REICHEL: Are you pointing to this gentleman? STEFFENS: No, I'm pointing to you. I'm not sure that Mr. Klein is finished, so if you could wait until I recognize you. REICHEL: I've got a hearing problem, I'm sorry about this. KLEIN: So, as the trench now sits, do you see it as any health problem, now that it's covered over? M. MONSON: No, I don' t. KLEIN: Prior to getting served with the complaint, what was your understanding of your responsibility for covering the trench? M. MONSON: My understanding was that when Eddie was here in November you told the Board that he would cover it when he was finished with operation, and that's what we did. It just so happened that our operation lasted longer than it has in previous years. KLEIN: If the Board feels differently in the future you will make sure it is taken care of? M. MONSON: Yes. KLEIN: I have no further questions of Ms. Monson. At this time I ask Mr. Monson to testify. Would you state your name please? MONSON: Ed Monson, Monson Bros. Company. KLEIN: Were you at the hearing last, Mr. Monson? What was your understanding of your responsibility as far as the trench. MONSON: Well, I stated, and the Board concurred, that when we finished operation we would cover the trench. KLEIN: Do you feel that the trenching operation is the best way to take care of those onions over the winter months? MONSON: It definitely is the best way to take care of the agriculture waste of cull onions. It is the most sanitary ?? operation that's come up. It is a Monson Hearing page 21 giant compost heap, no different than what you do in your garden. KLEIN: Is this a recommended technique? MONSON: Absolutely a recommended technique. KLEIN: If in fact there was a problem arising from the early spring and the late burying of the onions in the trench, how do you foresee taking care of that problem. . . MONSON: Well, I think the idea of filling up a portion of the trench and covering it up earlier 999 would take care of that problem. KLEIN: And are you prepared to do that? MONSON: Yes, sir. KLEIN: I have no further questions of Mr. Monson. STEFFENS: Does anyone else have any more questions of Mr. Monson? MORRISON: I have one question, and maybe it's there or in the transcript, but in November, when did you anticipate your run being through? MONSON: I anticipated the first of March, March 1. ZABKA: When the weather was bad, and Mr. Monson could not get down to his landfill, he hauled his onions somewhere, I don' t know where, but he did not put them down there, at the time it was bad, when the weather was bad, and it was snowing and the roads were muddy and so he couldn' t get down there. I don' t know where he hauled his onions, but I know he had trucks hauling his bad onions away. And I would like to ask Mr. Monson who he says that recommends that you dump these onions on piles like this, and leave them deteriorate out there. CSU I'm sure was not one of them because we work with CSU very strongly, we have for the last 8-9 years, on onion diseases, their recommendation is that you not dump any onions, only on landfills. We work very strongly with CSU. STEFFENS: Mr. Reichel? REICHEL: Mr. Monson's proposal is ideal, except for one hooker. Up until the point that he gets these covered you get northwesterly winds. My yard and all the ditches on 160 adjacent to him and east is literally full of onion skins because wind takes the onion skins out and as you said a while ago it carries the spore. ??? All the ditches, evergreens and everything else is chuck full of these things prior to his coverage, so you might cover them to stop the infestation of gnats, but all the chaff and the disease factor has already been carried into everybody's fence lines and ditches up until his coverage. You need a coverage program every day, something within a 24—hour time period to alleviate this problem because you're still drifting these spores. And, to me it's a nuisance because I just cleaned my yard, and I put a lot of sweat into it. Everything is chuck full of onion husks and I'm going Monson Hearing page 22 to spend another 15-20 hours redoing everything that I done and I don' t have that kind of time to do this from day 1 cleaning period for a three week time cycle, cleaning every weekend something that is coming in on me that could have been stopped. I was going to haul them, one year 21 farm truckloads of debris, I had a fire hazard not totally due to onion husks. I don't know, I phoned my insurance man about it, I've got a fire problem over there. It was a combination of corn husks and onion husks, that if somebody had flipped a cigarette out my whole house would have been torched, and I was furious that year. I don't know if my insurance man mentioned any thing to the men, they alleviated the onion husk problem, I mean the corn husk problem. Now I have got solely an onion husk problem, which is just about as bad. Too pick all this stuff out of evergreens is a bear, and I don't feel covering this prior to March is going to keep this trash out of my yard. I'll pick it out, but somebody's got to take it to the dump, because I'm not hauling somebody else's junk to the trash and paying for it out of my pocket. STEFFENS: Any other questions of Mr. Reichel? HAHN: You keep talking about this open ditch, and November. It don' t ever seem to go back before that. We first brought the whole problem up before the Weld County Commissioners. I give them 12 8X10' s of onions 11 to 2 foot thick laying on probably 15-20 acres that are east of this ditch. So they take care of the ditch, what happens to that area? I lived over there for 13 years, to my knowledge they've never grown anything over there, they just dump onions over there. Now how thick do you think those onions are and how deep, you'd have to plow 14 feet to get them down underneath where they wouldn't stink, smell, or put out whatever. STEFFENS: I really can't speak to that. We keep referring to November because that was the first time that we had a hearing before this Board, so that's all we can really speak to, at this . . . HAHN: Mr. Potter was at the one at the Board of Commissioners. . . STEFFENS: I'm talking, I'm talking about the Advisory Board, sir. HAHN: . . . stink, and we were complaining about smell then, not in November. STEFFENS: I'm talking about the Advisory Board. We first had the hearing, our first hearing, in November and that's what we're referring back to. What you have done previously with the other Commissioners and with other members of the Health Department we can' t speak to. HAHN: But it would be pertinent to remember the problem did not start with a phone call and two or three weeks later they were already working on it. The problem has gone on since the first harvest back in the fall, and it's finally coming to some type of a head, we hope. STEFFENS: As mentioned by Mr. Benson, we are anticipating problems come August if something isn' t resolved here. Has everyone here said what they want to say in regard to the onions, the gnats, the trench, covered and uncovered. Monson Hearing page 23 PETERS: I'm Dorothy Peters and I live right across the, 100 '0' St. is where I live. In the summers I can' t enjoy my patio, my tennis courts, I have to keep my windows closed and stay inside my house because the smell is so bad you get sick to your stomach if you go outside. And the flies, I have to let my company in through the garage doors because the front door is so covered with flies I can' t open it. And I am a little sick and tired of living in a nice home like that. STEFFENS: OK, and you relate your problems strictly to onions, not because you live out. . . PETERS: . . .problems, I've got dirt and grass and . . . STEFFENS: But all of those problems you are relating to the onions, it's not because you are in an agricultural area? PETERS: Well, her husband helped me chase rats off my patio one day and they ran over north to the feedlot. . . STEFFENS: To the feedlot. . . BENSON: We're not addressing the feedlot today, though. You don't know where they originally came from though. . . PETERS: This is it. We'd like our problem solved, we can't live like . . . STEFFENS: Does anyone else have anything they'd like to say? B. MONSON: Mrs. Peters, can I say her name? STEFFENS: Yes, you may say her name, unless she objects, I have no objection. B MONSON: And also Dorothy Zabka built their homes in that area after we, we have been established there for several years, and they came and built their homes. So it's an airport deal, is what it is. PETERS: I can answer that, I moved in from the country, and we had thousands of head of cattle in our field, but we didn't smell, we didn' t have rats, and we sprayed for the flies. We kept it clean, at least we. . .we could live right next to it and not have any problems. This is ridiculous. They haven't sprayed for flies. . . KLEIN: Mr. Peters, is this 9" feedlot. PETERS: I have no idea idea whether this, it's both. . . the onions and the feedlot. KLEIN: There is a feedlot between you and . . . PETERS: Yes, I know there is, but the onion smell is terrible. MORRISON: The question of the Board is what sorts of remedies they might have, and if the Board wishes to discuss this on the record, we can, otherwise Monson Hearing page 24 we can have a brief executive session and discuss, not the outcome, but the powers of the Board might have is something like this. STEFFENS: What would be the pleasure of the Board members? BALDWIN: Let's have a brief executive session. STEFFENS: OK. - HAHN: Could I say one thing, Bill Hahn, beforehand? To put a little quench on the fire of the airport theory, the house we' re living in was built in 1901, there was no feedlot or anything across the street, and we are directly south of it. And there's a whole lot more problems there besides just the onions. KLEIN: What are they, Mr. Hahn? HAHN: A corn storage silo was built straight across the street from the house, they put a nice big fan out pointing directly at my house, and I listen to that high velocity fan 24 hours a day for 18 days straight. The road was finally paved this particular past year because of the cattle trucks backing in there, they tear up my irrigation ditch, they tore two great big holes in the road that nobody seems to be concerned about, plus the dust the dirt and the filth from the feedlot, and I have been told by one member of the Health Dept. that we have a Catch 22 there. If we go the full route, tell them all about spraying and putting water on there to keep the dust down, that's fine for today. But if, before it gets to a head and they agree to do it and then don' t do it, you're right back to square one you're starting all over again. You got another 3-4 months of putting up with it before anything's done, and nothing's ever done about it. STEFFENS: Are you referring again to the Monson's or. . . HAHN: The whole set-up over there. I don't know who owns what. STEFFENS: Mr. Reichel, do you have something different to add? REICHEL: No, just one thing in regards to this airport situation. I've been there long before Monson's ever moved up from the Denver area. Built my home out there, put a lot of bucks in it, it's my pride, I plan on living there the rest of my life. I didn' t figure on living a hundred yards from a god darned dumping grounds in front of my window, and I won' t! ! ! If we can' t get the damned thing moved, I go along with Mr. Carlson over here. I don' t want to push it, but if we don' t get the damned thing moved out of there, I'll go to Channel 4 or Channel 9, I'll push her to the nuts. I'm tired of it, I'm not going to live across from the city dump, or a dumping grounds. You're fooling with a germ that can lose. . . STEFFENS: Mr. Reichel, Mr. Reichel, I don' t think that this outburst is benefitting the Board at all. OK, you can take care of that in private. Right now this Board is going into executive session so that we can examine the options that are open to us. Monson Hearing page 25 The Health Board met in Executive Session beginning at 2:25 pm, then the hearing resumed at 2:50 pm. STEFFENS: Mr. Morrison is going to clear up some issues. MORRISON: Well, the first question I had, I wanted to make sure that we had the evidence, apart from the testimony, that was intended to be submitted. Mr. Potter had a series of slides, so those will be submitted for the record. The Board had not made a determination whether to accept that document relating to Malheur County. Does the Board wish to make a ruling as to whether or not they're going to accept that? BALDWIN: I move we accept that as evidence of this problem in other parts of the country, not necessarily as a guideline for any regulations. . . STEFFENS: Do I have a second on that? MORRISON: The Chairman really rules on that, but you can discuss it, ultimately it would be your decision. STEFFENS: I would accept this. . . MORRISON: Under that condition? STEFFENS: Under that condition. MORRISON: There was 11 pictures submitted by the Monson's. STEFFENS: Those would be accepted. MORRISON: The fourth thing is in reference to the transcript, I don' t know, did you intend to submit that formally, Mr. Potter? POTTER: I, yes please. MORRISON: Do we have a copy of that to submit? HANSEN: I have a copy, yes. MORRISON: That's a transcript of the November hearing to be incorporated into this. POTTER: This is a copy. STEFFENS: OK. MORRISON: The other thing, so that you don't think we were doing something mystical in back, we were trying to discuss what the law is in relationship to nuisance, what the concept means, and what the remedies might be. I advised the Board at that point that they should not make any decisions while they were back there, and that the ultimate decision is first, whether there is a nuisance, and secondly, what remedies, if there is one, should be something done on the record. So, I think that's the point at which we've arrived. Monson Hearing page 26 STEFFENS: OK. I'd like to entertain a motion with regard to the information that the Board has at this time. BALDWIN: I have a motion. 99 based on the evidence we've heard that a nuisance has existed. And secondly that we have made the decision to come up, if possible, with certain guidelines to follow in the future, and that is if agricultural wastes are to be dumped on that site in a trench, arrange it so that it will be covered with 10" of dirt within 24 hours. And that the Health Dept. will direct it's environmental staff to watch this site on a regular basis and that the Health Dept. will keep the issue open and bring it up at each monthly meeting. STEFFENS: Each monthly meeting of the Board? BALDWIN: Of the Board, yes. BENSON: I'll second that. STEFFENS: OK, is there any further discussion? MORRISON: Does the Board wish to make a specific findings, at least if there are those in support, in relation to the facts that support that? The specific facts that you. . . STEFFENS: That a nuisance presently exists, is that what you are referring to? MORRISON: If that's your determination. If you are opposed to it you may wish to make findings as to why you are not in support of the motion. KLEIN: Are we going to have an opportunity to respond to all of this? MORRISON: Not at this point. KLEIN: 99999 MORRISON: Well, no the decision has not been made. I was under the assumption that we had closed the proceedings and all that remains is, the procedure does allow for argument, but I did not recognize that you intended to present. . . STEFFENS: OK, we have a motion and we have a second. Is there any further discussion by the Board? BENSON: Would you like us to withdraw the motion so that you could make an argument? KLEIN: Well, I'd like to 999 I don' t know if this gentleman, were you at the November hearing? I think it's very important, we came here on six days notice, we introduced at lot of evidence, at lot of scientific evidence, of which I heard none today. The evidence is there, by onion growers, and in the area, that what Monson's were doing was recommended procedure, both by Monson Hearing page 27 Colorado State University. The same letter refers to putting these onions in the trench as Monson's were doing. The, Mr. Monson testified, Mr. Hoshiko testified that what they are doing is recommended by the onion grower's association across the country, and the problem, if there is a problem, apparently comes in the spring time, even by Ms. Zabka's own report there from Oregon , that she attached to this letter, which the Board has allowed in evidence, indicates that if the trenches are covered over by March 5 in Oregon that will take care of the problem. What we're saying is that the Monson's would have to cover this on a daily basis so there is always ten inches of soil over the . . . BALDWIN: Is it that big a problem? KLEIN: Financially it would be a disaster for onion growers in Weld County, as Mr. Hoshiko testified at the last hearing, and it doesn't appear to be recommended by any of the scientific ??? There is some evidence that when the weather and humidity go up, deterioration increases, and we submit to that and the problem that happened this year, the season came early. BALDWIN: Our concern is that Mr. Monson said he would do that, and he didn't do it! He said he'd cover them this spring, and we have all these people out here complaining again, they say it's been an ongoing problem. How often are we going to have to go through this? KLEIN: If I can refer to this testimony, of November hearing. . . BALDWIN: Yes, he said he would do it when he was through, and this year that has not been sufficient. There is ample evidence from these other people here that this has been a nuisance, possibly a health hazard, maybe detrimental to the onion industry itself. And his only thing is, "I wasn't through yet." And so we are proposing to give his some guidelines as to what might be a reasonable way of doing it. KLEIN: OK, are you saying to do this on a daily basis, even in the middle of winter time. . .because I think. . . BALDWIN: Perhaps someone would have an argument that maybe that's a little too severe, but, in essence what he's doing, he's operating a landfill. We've looked at the regulations to see if that's a legal landfill, no, it doesn't really fall under any of the guidelines. But that's what it is, it's a landfill, and you cover a landfill over when you dump stuff in. And he says it's just a compost pile, that's right, it is, but not if it's blowing all over the neighborhood. KLEIN: I think the evidence also showed that there were cornhusks, and I think anyone in Weld County knows that all sorts of debris blows around. I don' t think any of the evidence shows that this was injurious to the health or safety of the neighbors. Admittedly, gnats, whether they come from the feedlot or from the onion dumps, or whatever, would be a pest. I don't mean to belittle that point. We do know, the only evidence before the Board is how the, if there has been a problem, it's only been since the weather turned. Monson Hearing page 28 Once again there is absolutely no scientific evidence. We have a health dept. that is fully qualified to determine the source of these gnats, and we're sitting here with an industry that Weld County depends on very much so, and not being able to defend itself against any scientific evidence. BALDWIN: Did Monson have a proposal as to how often he thinks . . . KLEIN: Once the weather turns, if it happens like this year, then I'm sure they'll do it more frequently. . . BALDWIN: But this hasn't been satisfactory. KLEIN: (Yes? or Yet?) , and I think she testified that. . . BALDWIN: She said why it hadn't been, but that doesn't satisfy all these other people. It doesn' t satisfy me. KLEIN: But she indicated that the temperature caused that, and I'm sure they'll take care of it, but if we have this from August to March when it's absolutely not necessary, then is going to be a prohibitive expense for Weld County and it's industries. (some garbled talking) STEFFENS: I'd like to recognize Wes Potter, please. POTTER: Mr. Klein is making some comments that I think we better take a long, serious look at. For example, he said that we would be imposing a financial burden on the industry in Weld County because we were requiring the Monsons to appropriately cover their trench, and I disagree with that very strongly. You don' t need to bring in a D-8 to cover that trench on a regular basis. You can get a smaller machine, a front=end loader or a farm tractor with a front-end loader on it, and push it in on a regular basis. And I don't necessarily mean that we would need to have it stipulated on a cut and dried, every 48-hours, or something, but the reality of the situation is I agree we need some kind of cover on a regular basis. I think that we have had a problem with a reluctance, at the very least, of the Monsons within the last three weeks to cooperate. When I asked Ms. Monson if she would at least cover part of the trench, she said no, they were going to wait until the end of the onion run. And, the point being that if they want to be the good neighbors that they are leading us to believe; and that we know that they want to be, then they could come up with a machine that could come out there on a regular basis at least in the warm weather, and cover the the onions on a regular basis to maintain cover over it. And I think that's what we're saying. I don't think that we're asking for something that is totally unreasonable. KLEIN: I thought they said ten inches of soil constantly on top. . . POTTER: Ten inches of soil is the very minimum that is accepted by the Solid Waste Disposal Act as any kind of a cap, and I think that's the technical cover, I mean that's where that number came from, is from the Solid Waste Dispoal Act. And so I think. . . , Monson Hearing page 29 KLEIN: Mr. Potter, you'll admit we're not here under the Solid Waste Disposal Act. POTTER: That's precisely it, but what I am saying is that if we are going to put, "adequate cover" then maybe we should take up the aspect of what we should consider to be adequate cover and what we want to use as an adequate time basis. I don' t like to see people locked into specific time frames, but by the same token you have to have some kind of a criteria to evaluate this. BALDWIN: I will propose then that we change that from 24 hours to on a regular basis, not to exceed a week. POTTER: I think that sounds reasonable. BALDWIN: . . .reasonable for the Monsons that they could cover it once a week? Then they could buy some three or four thousand dollar tractor 299 (some garbled talking) KLEIN: You understand that during the winter this would be very difficult to do because of the (solid?) conditions, and that doesn't seem to be a problem. STEFFENS: Yes, I. . . POTTER: During the winter time if it's frozen I don' t think anyone in this room is going to require that you push it, and. . . END OF SIDE 2 BENSON: I would be willing to leave the motion as it stands, because one way or another the onions can be covered on a weekly basis. If we say that because it's cold right now you can't do it, maybe it will stretch into two or three months and that's what I don't want to see. I don' t want us to be meeting under these circumstances again. KLEIN: The point is they are not a health hazard in the winter, and that's what the evidence has presented. . . BALDWIN: Nuisance, nuisance, is the word, not health hazard. KLEIN: As I understand it, it's the heat and the odor which I don't. . . STEFFENS: But Mr. Klein, as it's already been pointed out, sometimes in the winter in Colorado it can get to 70°, and we do not, this Board is getting tired, frankly, of this problem. And we do not want to have to come back here in November or December or January or February of next year and say "the weather has been running 70° for the past three weeks. These people are fighting gnats again, the onions are smelling, they are stinking, they aren't being covered up." What we would like to do is, in some way, resolve this problem to everyone's satisfaction, maybe not perfectly, maybe not so that Mrs. Zabka says everything is wonderful, or Mr. Monson says everything is Monson Hearing page 30 wonderful, but resolve it to some point where you people all, and all of you are responsible for this, to live together so that you do not have to come before this Board, take all of this professional time, take all of these volunteer's time, because both of you want to have your own way. You're not going to get it. That's not the way it's going to work, so let's come to some reasonable conclusion that both sides can live with. We are going to attempt to do that now, by making a motion, and we're going to attempt to cover all seasons of the year, all sorts of onions, and all sorts of ground layer. All right, so if you will be patient with us a moment we'll either withdraw this motion and have another one submitted before the Board, or we will go with this one and amend it. What would be the pleasure? BALDWIN: That a nuisance has existed. That in the future if the Monsons choose to dump onions at that site that they cover it with 10" of earth within a week, and if that's not possible that they dump them someplace else. And we will take this up on a monthly basis, and our environmentalists will keep an eye on the site. BENSON: I still second that. STEFFENS: You second it? OK, is there any further discussion by members of the Board? FEHR: I would like to amend the motion, instead of the wording "there has been a nuisance," to state that there is a regularly recurring nuisance. There is a regularly recurring nuisance, as of today. STEFFENS: Any further discussion? OK, all in favor, opposed? Motion Carried. B. MONSON: Is that the end? STEFFENS: That's it. B. MONSON: If that's the end I guess I can' t say anything. STEFFENS: You can say anything you choose, but the motion has been made and carried by this Board, and after listening to the testimony that we listened to in November and again today, I feel confident that the Board has made a good motion. B. MONSON: I think there's something somebody, does this establish a precedent for the total county, is this the regulation for the whole county? STEFFENS: No, we have not made a regulation. We have. . . BALDWIN: This has to do with this one onion dump. The end .,J(=y lied 4, , Jr&htrq' /'�- vte'sc.;- Rocie 'K' ;n'S CR-ic P. rr?. //,4Fr / 1 % / qtc VS-ten 2 l""^ P^'j"ly Ei1" PSS"ER$ WELD COUNTY BOARD OF HEALTH . f-1� E 1 y[ him IN RE: APR 1 91985 I\ C JhL_, /L7:-/ MONSON BROTHERS COMPANY ) li2£LL O O. 3146 Weld County Road 1139} ) Greeley, CO 80631 ) CEASE AND DESIST ORDER ) Respondent. ) THIS MATTER came on before the Weld County Board of Health with six members present, pursuant to CRS, $25-1-613 and §25-1-617, and Weld County Ordinance No. 56, on April 8, 1985. The Respondent was present at the hearing through counsel, Roger Klein, and through Ed Monson and Marlene Monson. Testimony was presented by Wes Potter, Director of Health Protection Services, and members of his staff, as well as residents of the area. This Board, upon considering the statements of witnesses, having considered the written reports and photographs herein, and being otherwise advised in the premises, DOTH FIND AND ORDER: 1. That the Respondent was properly served with a hand-delivered letter dated April 2, 1985, of this hearing and has been adequately advised of the condition which is the subject of this hearing. 2. That the Respondent has created, and continues to allow to exist, a regularly reoccurring condition which is a nuisance. In particular, disposal of onions in a trench without coverage with soil has resulted in a nuisance caused by breeding of gnats and creation of odors in a field controlled by Respondent along Eaton Draw west of North First Avenue, Greeley, Colorado. THEREFORE, IT IS ORDERED that the Respondent prevent the further occurrence of the nuisance and abate any continuing public nuisance existing on this property described herein by covering any accumulation of onions with at least ten inches of soil within a week of disposal and that disposal be discontinued during periods when soil conditions prevent coverage. FURTHER, IT IS ORDERED that this matter shall be reviewed at each regularly scheduled Board of Health meeting. rbara Steffens, Chairman Weld County Board of Health NOTE: VIOLATION OF THIS ORDER CONSTITUTES A CLASS I PETTY OFFENSE PUNISHABLE BY A FINE OF NOT MORE THAN $500.00 OR SIX MONTHS IN JAIL. STATE OF COLORADO ) ) ss. COUNTY OF WELD ) SUBSCRIBED AND SWORN to before me this/ day of 12 , 19 aL . WITNESS my hand and official seal. \��al L-lI E� Notary Publ My commission expires: O ,J7/ pg.: BOARD OF COUNTY COMMISSIONERS, WELD COUNTY, COLORADO COMPLAINT MONSON BROTHERS, Complainant, vs. WELD COUNTY BOARD OF HEALTH, Respondent. The above-named complainant, by and through its attorney, Roger A. Klein, of SHADE, DOYLE, KLEIN, OTIS & FREY, hereby complains against the Weld County Board of Health as follows: 1. The complainant denies that it has created and continues to allow to exist a regularly reoccurring condition which is a nuisance. 2. On or about April 8, 1985, the Weld County Board of Health held a hearing, after serving a notice dated April 1, 1985, on the complainant, a copy of which notice is attached hereto as Exhibit A. 3. On April 16, 1985, the complainant's counsel was served with a copy of a Cease and Desist Order dated April 12, 1985, which is attached hereto as Exhibit B. 4. Pursuant to the Weld County Administrative Procedures and Ordinance 56, the complainant hereby appeals said order to the Weld County Board of County Commissioners for the following reasons: a. The issuance of the Cease and Desist Order was not supported by substantial evidence or a preponderance of the evidence. b. The action of the Weld County Board of Health is arbitrary and capricious. c. The order is beyond the power of the Weld County Board of Health and is the result of unlawful delegation of authority from the Weld County Board of County Commissioners to the Weld County Board of Health. d. The order is in direct conflict with the evidence presented at a hearing and with the decision of the Board on November 5, 1984, which decision was upheld by the Board of County Commissioners in a letter dated January 14, 1985, a copy of which is attached hereto as Exhibit C. e. The hearing conducted on April 8, 1985, was in violation of the complainant's rights and due process of law with the Weld County Board of Health, in that the Weld County Board of Health did not require the witnesses to be sworn under oath and it allowed for the introduction of substantial heresay evidence. The Weld County Board of Health also followed no prescribed order of presentation of evidence or rules of procedure. f. The Cease and Desist Order was not served upon the complainant within five days of the hearing as required by Ordinance 56. WHEREFORE, the complainant prays that the Weld County Board of County Commissioners dismiss the Cease and Desist Order issued by the Weld County Board of Health on April 12, 1985, and to grant the complainant a prompt hearing herein. Dated this 1 day of April, 1985. MONSON BROTHERS COMPANY: By: Roger A. ein, #445 Attorney or Complainant SHADE, DOYLE, KLEIN, OTIS & FREY 300 Greeley National Bank Plaza Greeley, Colorado 80631 CERTIFICATE OF HAND DELIVERY The undersigned certifies that on the !Q day of April, 1985, a true and correct copy of the foregoing Complaint was served upon the respondents by hand delivery to the Clerk of the Board of County Commissioners, at 915 Tenth Street, First Floor, Greeley, Colorado, and by hand delivery to Lee Morrison, Assistant County Attorney, at 915 Tenth Street, Third Floor, Room 316, Greeley, Colorado. 2 . a If DEPARTMENT OF HEALTH lall(f PHONE(303)353-0540 T 1516 HOSPITAL ROAD IDGREELEY,COLORADO 80631 WI C. HAND DELIVERED COLORADO April 1, 1985 Monson Brothers Company 3146 Weld County Road 11391 Greeley, CO 80631 RE: Disposal of Onions in a field along Eaton Draw Dear Sirs: Please be advised that a hearing will be held at 1:00 P.M. on April 8, 1985, before the Weld County Health Officer and the Weld County Board of Health at the Weld County Health Department, 1516 Hospital Road, Greeley, Colorado, Conference Room 205, to determine if an order should be issued requiring you to, pursuant to C.R.S. 1973, Section 25-1-613 through 25-16-21 and Weld County Ordinance 56, to remove or abate a nuisance, source of filth or cause of sick- ness which may be injurious to the health of the inhabitants of Weld County. You may be present in person or through counsel and present evidence on your behalf. Failure to comply with an order of the Board of Health may subject you to lia- bility for the cost of abatement and other penalities. Sin rely, il Ralph Wooley, M.D. , erector Weld County Health Department RRW/mr cc: Lee Morrison, Assistant County Attorney Weld County Board of Commissioners Weld County Board of Health Members s 1,, rtrn AAA nr l(('•y " OFF CE OF WELD COUNTY COMMUNICATIONS 1' 'N A PHONE r03) 356-10f; EXT 4245 5 x753 FL 4 ORE_=Y,COL s-DG 8073 Ifs , . ri 4( xe9 . yy . \& COT a�.':..c'R ADO January 14, 1985 Dorthy Zabka P.O. Box 446 Greeley, CO 80632 Dear Dorothy: We are writing in response to your letter of January 7, 1985, concerning the disposal of onions near your property. A hearing was conducted by the Weld County Board of Health on November 5, 1984. Members of that Board are Dale Benson, Barbara Steffens, Mary E. Tuck, Lola Fehr, Thomas G. Baur, Lois Smee, T. Ed Baldwin MD, Mary Henneck, Dale C. Peters. The decision of the Board cf Health was that the Monson operation was not in violation of the statutes nor was it a source of filth or a public health nuisance. The Board of Commissioners has reviewed the file concerning this complaint and has made an on-site inspection of the property. We concur with the findings of the Board of Health and find no cause to take any action at this time. We will continue to monitor the situation, and if at any time in the future, conditions warrant, we will review our decision. Sincerely, BOARD OF WELD COUNTY COMMISSIONERS n ac ueli Johri •o , hairman .c---<.---; 1-010 till Ora �� a `:ie Gene Brantner, Pro-tem Vordon'Lacy 7 / .// / (//:-/1 1 C.W. Kirby / Frank Yamaguchi BCC/lag January 7 , 1983 Weld County Commissioners P. O. Box 758 Greeley, Colorado 80632 Dear Commissioners : Writing in regard to the Monson rotten (anions and : oehler Feedlot . Today , while home :or lunch , I saw Monson dumping their rotten onions as big as you please , just as they have been dumping them for sometime . What do we have to do to get this stopped? We have submitted petitions from all of the people in the neighborhood, and have called the health department to no avail . inat else do we have to do to get an end put to this ? I have heard that the hoalth department had private meetings with Monson ' s without _nferming any of the people involved regarding what happened . They keep dumping their onions . Since when has an ordinance been nassed that t you can use ,'our farm land for a commercial dump? If this is the case , we will all perform like this , and quit paying the high dump fees . We as a neighborhood are getting tired of being pushed around and getting nothing done . Maybe you as commissioners need to come out and smell this odor . We want action this time . We are not going to fool around any longer . There will be a big law suit involving everyone concerned. We cannot keep living under these stinky conditions . Enclosed you will find a copy for each commissioner on onion maggot of from Malheur County, Oregon .regon . This is the thin i we are talking about here . Leaving the rotten onions out in the open and not covered carries diseases . We received this information from C. S . U. in Fort Collins . They also state that leaving rotten onions out is a very treacherous deal . We want this stopped now, not in another 6 months . Cur patience has just about run out. We also want the feedlot taken care, of at the same time . We want a meeting with the ;Health Denartient and the Commissioners in the very hear future , or action will be started . We expect something to be done in the next 10 Days and no loneer . Sincerely�� /'/)/ y �orothv ab a DZ/cr Enclosure en Aril 23, 1964, at b P. , qty Court ��l�� .> ).. , l!. L.:•1 First ,i:ouoe, , _.e, Cegon, the State r - Floor >ct.-ia0 =007 hofo t;:c hli hearing to rece n nravp r_ or .1 to.(.mo ' d n .aglic r, receive! evident Control c and t_��r:r_:n . :•{1_. hold Conero and Aea order �.'id regulations is calhsur County. Interested c ;e:rd ,he sonca Maggot give testimony. Information mayin froeC.L persons emgy rr N Dcoartent of Agriculture offico et be obOrtained from contacting t. n the office at Salem, Oregon. The follo;:i .gr s the Lew wor cr by ro the main place of (b) wider subsection (3) belos•is the nev wording, proposed to the p t,4o i; Proposed amendment: (b) Disposal of cull or waste o:l and provided b e chill be acccncli bed only as sot forth y subparagraph (A) (t) and subparagraph (C) (i) (it); (ii), sub.,.,_,.. ,.,,y:-` t (3) (i) and (II) t3 temporarily 0= por!rcnentl E::cep , ir, t.�,e event of an emergencywhere covering'-c l:Qem,ora, such o onions rent y impossiblethen with the prior approve/ of subparagraph (A) (iii ) Find (D) (tit) of as ..et the ONION MAGGOT CONTROL AREA IN MALHEU COUNTY 52-360 CONTROL AREA r section:„C - Ot S0 7 ?fh;GOT - :L'tL Eb3 CCb?! ', (1 ) ?,s used in this (a) ontrol area" means all of Mal': (b) "Person" includes individuals,Malheur County, Oregon; ss partnerships, ,`rtn 1 zh�(2)otAct control area is established 't tine„he_ba associations and cor?orgt{cns• � ion of tae c: r eradication di ca to pest 4noun e on Lcce;. tr e.� mss? of aslh3lr , o proper The following methods of eradication sad cc P- methods used in the control a ca described control i.re ea (2) of is section for the eradication 3tibon in s•' the cad centre'_ of the ==c=tau (2) this (a) ;•j1 c '11 0r waste onions onion _mar: QL� methn existent in the control pl_cb F�a ethod_tpp�� d_igy this co_^ol c troy area 5th of each d -dti ouever that to tha Ft`'Z Prior to March 15th o ' ^ e_�d ;Tat cs�te of onions f such rear; _ e n.,in _resulti.ng threfrom_s al e sorted _one.R_ek cull_ �-t_.^=d of�L�:ti LCs_.^'ne week _ ti after r (0) -L4sp0aal of cull o^ -- -----_____�� - of the fL a wa3"? onions shat xow{na meth 1 be oceou e here Dy the use eels in acec^3«-:ca with the orocetit�.'�o herein of o: ! set forth (A) Disposal by covering in du:.:_s or pits. (i) Culls e1;311 be du: -r,' 'pc in • •'d covert uncontaminated soil• s d With J at least one foot Cf (ii)) Co erjnc shall be ccecc:rlts!!ed bq Narcb 15th of each . ('it{ pit shall bo dustedwith _h either ' > or 1--1/2% Dield:-in or Heptachlor 7te DDT or Chlordane, ,e.-1/D' begin not later than April dust at the rate of 30 lbs. ' „ i•-"='i�', each year. ^i; 1st and continue at 7O-._?e,y. tutcbz-vr;1s untilDusting to i May ist of /(7) Disposal by feedi.r.;•nion s ll be utder)atOleastoonei:ootaof unc;,a�zi t�lc,drsoilrb from feeding area h yi _y b;erca 1 jib of each year. _2- (ii ) In tha casa of residues of onion debris t..o inches or lass i:t dioth, or onions tramped into the soil oo teat tiny cannot be rtaovad, _,.._h areas shall S- plural to such a depth that at least ten inches or amore of actual soil can be turnd without disclosing any onion residue. (iii) Hecaisg., areas end areas whe'_a onions are buried shall be dusted in the 14O.1) of this _ec. °n. -- (C) Disposal of residue to onion producing fields. (t.) Ccr-rstetcd—cnioa Gelds where sc.it out bulbs :ire left at harvest a^a' l disked . `_i r y the boa and shall be plowed to a depth of at least eijt iuobL€ .by i erch 15th of each year. (ii) Seed bulbs shall be dioposed of by the Vnrrh 15+h fallowing final seed harvest by disking and plowing in the nr :r set forth to subparagraph (C) (i) . Hello