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KENT E. HANSON ! L� CC_'' 'Ty (J
Attorney at Law
Canyon Center1881 9th Street, tt Q g
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(303)449-0600 Boulder,Coloradott z
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October 16, 1992
Certified Mail
George Kennedy, Chairman
Constance L. Harbert, Commissioner
Gordon E. Lacy, Commissioner
C.W. Kirby, Commissioner
William H. Webster, Commissioner
Weld County/Board of County Commissioners
Centennial Center
915 10th Street
Greeley, CO 80631
Re: Central Weld Landfill
Dear Commissioners:
Over the past nine months, my client, Sam Telep and other
members of the community have voiced growing concern over the
situation at the Central Weld Landfill. These concerns arose out
of existing environmental problems and the County's long history
of allowing - and even assisting - owners of the landfill to
operate in violation of state law.
Within the past few weeks, the County has begun to pay
greater attention to this matter. The County's actions, however,
do not adequately address problems at the site. Indeed, some
action promised by the County has yet to be taken. Generally,
requests for action have been met with resistance and unfounded
arguments attempting to justify the County's past inaction. In
some cases, requests have simply gone unanswered.
This letter summarizes the reasons for Mr. Telep's concerns.
It concludes with a request that the County take immediate action
to correct existing problems.
The County Never Reauired Compliance With the Certificate of
Designation
The Weld County Commissioners approved the Certificate of
Designation on October 6, 1971. At that time, a Certificate of
Designation could be issued only with the approval of the
Colorado Department of Health ("CDH") . This requirement was
incorporated into the Certificate of Designation which was
O-6
In �� . Pm, � �d, c 921271
9
Weld County Commissioners
October 16, 1992
Page 2
granted subject to the condition that "any sanitary landfill
facility to be installed shall be approved by the State Health
Department. " This condition was never satisfied.
CDH approval was not obtained before the Certificate of
Designation was approved because the County Commissioners wanted
to accommodate Earl Moffat and Weld County Landfill, Inc. Moffat
held an option to purchase the site of the landfill. The option
expired in October 1971 and Moffat wanted approval to operate a
landfill before exercising the option. In addition, Moffat did
not want to go to the expense of performing the required
environmental and engineering work if the County was going to
deny his application. CDH explicitly advised the Weld County
Commissioners that the Certificate of Designation "be made
contingent upon the submittal of an engineering report concerning
the design and operation of the site as described in Regulation 3
and 4" of the state's proposed regulations which became final in
early 1972 .
A review of CDH and Weld County files reveals that no
engineering report of any kind was submitted over the following
21 years. CDH has never given its approval to the facility. At
no time has Weld County taken any action to require compliance
with this condition of the Certificate of Designation. Indeed,
Weld County ignored several requests over the last year to
require the operator to submit an engineering, design and
operations report as required by the law.
On September 18, 1992 , in response to repeated demands, the
County Attorney's Office indicated that it was drafting a letter
demanding that the operator submit information for the County's
review. On September 28, 1992 the County finally requested that
the operator submit a "plan containing geological, hydrological,
engineering, and operational information. " The County allowed
the operator to submit the information as late as November 19,
1992 (16 days after election day) . The County acknowledged that
such information had not been submitted previously and that full
review of the plan was required under state statute and County
zoning ordinance, but failed to set a hearing. Apparently, the
County intends to allow the landfill to operate without complying
with the existing Certificate of Designation. There also seems
to be a presumption by the County that any amended Certificate of
Designation will allow current operations to continue.
The County Never Approved Expanded Operations
Since 1971, the size of the landfill has been expanded and
its operational life extended. Each of the several expansions of
Weld County Commissioners
October 16, 1992
Page 3
the facility have significantly changed the performance of the
facility as originally designated. As a result, each change has
been a "substantial change in operations" requiring the filing by
the operator of an amended application which must be reviewed and
approved by the County and CDH before the change is implemented.
The County knew about each change but never required an amended
application be filed.
Weld County's approval of the original Certificate of
Designation was based upon several representations by Earl Moffat
concerning the operation and ultimate size of the landfill.
Among other things, Moffat represented that: all draws would be
kept free of pollution and obstruction; the depth of fill would
be approximately 45 feet; there was a "fifteen year goal" for the
life of the landfill; fill material would be deposited laterally
from the hillside; final elevation would be at an "even grade or
benched" and would not extend above the crest of the hill; three
feet or more of cover would be placed over the fill, resulting in
a "good piece of farm ground. "
During the 1970 's, the County was well aware of the
deficiencies in the information it had concerning the operation
of the site. In 1979, CDH requested information concerning
existing Weld County landfills. On April 20, 1979, the County
responded that "a great deal of information requested in your
form simply was not available for these sites without a large
financial expenditure for a consultant in this area. " The County
went on to state, "Before the [Central Weld Landfill] site is
developed any further, the hydrogeologic characteristics of the
draw on the West end of the field should be analyzed. Water flow
through this area may prevent further westward development of the
site. " Nevertheless, the County expressed its intention that the
Central Weld Landfill would be expanded to create one of "two
large regional sites. "
The County was then discussing the development of the
Central Weld Landfill into a regional site with Lynn and Lela
Keirnes. The Keirnes incorporated Colorado Landfill, Inc. , which
began operating in June 1979. Lynn Keirnes is the brother of
former Weld County Assessor Richard Keirnes. The County agreed
to sponsor the issuance of industrial development bonds to
finance the acquisition and expansion of the facility by Colorado
Landfill. The County and Colorado Landfill entered into a loan
agreement on March 6, 1980 enabling Colorado Landfill to borrow
$1. 3 million. Under the loan agreement, Colorado Landfill
committed to construct improvements on the site in accordance
with the "Plans and Specifications. " Colorado Landfill
represented that the Plans and Specifications had been submitted
Weld County Commissioners
October 16, 1992
Page 4
to and approved by all necessary government authorities and that
they complied with all environmental laws and regulations.
However, Colorado Landfill never submitted and the County never
approved an application for an amended Certificate of
Designation.
Some time before February 1986, the Central Weld Landfill
operations underwent another substantial change when it began
accepting for disposal liquid sludges. CDH notified the operator
that this practice could continue only if he first submitted an
amended application/operational plan for the review and approval
of CDH and the Weld County Commissioners. CDH sent a copy of its
letter to the County Commissioners. The County took no action.
Weld County again came to the financial assistance of the
Keirnes family in 1990 when the County issued another $3,360, 000
in industrial development bonds. Most of the proceeds
($2 ,500, 000) was used to finance the acquisition, development and
permitting of the Ault Landfill. The balance ($860, 000) was used
to re-fund the 1980 bonds. The documents executed in conjunction
with this transaction suggest that expanded use of the Central
Weld Landfill was contemplated by the parties. The County did
not approve an amended operational plan.
In 1991, the Keirnes family sold its stock in Waste Services
Corporation (the successor to Colorado Landfill, Inc. and the
owner of the Central Weld and Ault landfills) to Waste Management
of Colorado, Inc. In March 1972 , Waste Management submitted a
special waste plan to CDH. Documents obtained from other sources
indicate the County has been involved with the review process,
but the nature of the County's involvement is unclear. Despite
several requests for documents regarding Central Weld Landfill,
the County has not made the special waste plan available.
The County Did Not Approve Change of Operators
Under Health Department regulations, transferring a
Certificate of Designation to a new operator constitutes a
"substantial change in operations" requiring County review and
approval of an amended application. The operator of the Central
Weld Landfill changed on several occasions. Only once did the
County approve the transfer of the Certificate of Designation.
The purpose behind the rule is to assure that each operator
is qualified and capable of meeting the performance design of the
facility. Depending upon the qualifications of the operator, the
transfer of a Certificate of Designation may be denied
altogether, or the Certificate may be amended to include
Weld County Commissioners
October 16, 1992
Page 5
performance standards that the new operator is capable of
meeting.
The County interprets the rule to apply only to the purchase
of corporate assets and not to mergers or other stock
acquisitions in which all of the shares of stock of a corporate
operator are acquired by a purchaser. This interpretation
elevates the form of the transaction over the substantive
requirement that an operator be qualified and approved by the
County before taking over operations. This interpretation has
also allowed operators to change due to financial problems and
sales without being subjected to public review and comment at
public hearings.
The County Has Given Central Weld Landfill Preferential Treatment
Not only has the County failed to enforce statutory and
regulatory requirements as outlined above; the County has
vigorously enforced those same requirements at other facilities.
For example, the Eaton Landfill received its Certificate of
Designation in 1969. In the mid-1970 's, the County required the
Eaton Landfill to submit engineering, design and operations
reports. This stands in stark contrast to the County's position
as late as September 1992 that it had no authority to require the
operators of Central Weld Landfill to submit similar reports.
Also as discussed above, Weld County assisted the Keirnes
family in financing not one but two landfills: Central Weld
Landfill and the Ault Landfill. It appears that this assistance
was uniquely available to the Keirnes family.
It now appears that Weld County is preparing to relocate a
segment of County Road 27% just north of the entrance to the
landfill. Currently, the road curves gently around an existing
wetland in the toe of an earthen dam. The only possible
rationale for the County's action is to facilitate access to the
landfill. The resulting destruction of the wetland would violate
federal regulations.
The County Has Obstructed Public Involvement
The County has been generally unresponsive to the expression
of concerns concerning the Central Weld Landfill. When the
County has reacted, it has been only as a result of the
persistence of the community. For example, the County learned of
off-site groundwater contamination at least three months before
citing the operator under the County's nuisance authority on
October 5, 1992 . This action came only after demands by the
Weld County Commissioners
October 16, 1992
Page 6
Ashton Call to Action Committee for an explanation of why the
County had not formally cited the operator.
The County has yet to respond to reports that Spomer Lakes
have been contaminated and are discharging "milky" water that has
the odor of garbage.
In January 1992, Sam Telep requested that the County conduct
a public hearing concerning the landfill. The County never
responded to Mr. Telep's request, although it apparently held its
own "study session" on January 20, 1992 . On July 17, 1992 , Mr.
Telep sent a letter to the Weld County Commissioners articulating
several concerns about the landfill. The County never responded
to Mr. Telep's letter despite the fact that, on the same day, the
County met with Waste Management of North America "to review
current projects. " In that meeting, there were discussions about
"several projects" designed to "enhance facility operations. "
When the County failed to respond to Mr. Telep's letter, his
daughter made several telephone calls to County officials and
wrote letters on July 29, July 31 and August 18, 1992 . Once
again, the County failed to respond to any of these letters. The
unresponsiveness of government is always disconcerting. It is
particularly troublesome where, as here, the County has ignored
public concerns while it has maintained an ongoing dialogue with
landfill operators.
The County has been equally unresponsive in supplying
requested information. Requests for documents have been made to
several County departments. Very few documents were produced.
Most documents, including documents that the County authored,
signed or received as an addressee, have been obtained from other
sources. Documents the County has not produced include:
documents relating to the industrial development bonds and in
particular engineering reports, environmental audits, plans and
specifications; quarterly groundwater monitoring results;
inspection reports; Waste Management's Special Waste Plan; notes
of many meetings with landfill operators; any environmental,
engineering, design or operational information about the site
(except for the July 1992 report of Golder Associates) ; and
Planning Commission staff reports.
The County's delays have all inured to the benefit of Waste
Services and to the detriment of neighboring landowners. Waste
Services has been permitted to continue its operations without an
engineering design and operations report. Under the ownership of
Waste Management, landfill operations have been greatly expanded
in an apparent effort to avoid some of the stringent requirements
Weld County Commissioners
October 16, 1992
Page 7
that will take effect under Subtitle D of the Resource
Conservation and Recovery Act in the next year. The delay also
has allowed Waste Services to negotiate the acquisition of
property adjacent to the landfill so that groundwater
contamination will no longer be off-site.
The Need for Immediate Action
It is clear that the County needs to exercise its authority
and responsibilities with respect to the Central Weld Landfill.
Some of the necessary actions were articulated in my
September 11, 1992 letter to the Commissioners. Because the
County's efforts to exercise its authority have been less than
vigorous, I must repeat our earlier requests. Information
discussed above makes other requests necessary. As a result, I
request the following:
1. Investigate off-site groundwater contamination, and in
conjunction with the state, require appropriate remedial action
at the site;
2 . Enforce the requirement that the final elevation of the
landfill after closure not exceed adjacent land surfaces in
compliance with the design on which the Certificate of
Designation was predicated; and
3 . Obtain an up-to-date engineering, design and operations
report, together with all other information necessary to evaluate
the performance of the landfill;
4 . Investigate surface water contamination, including the
contamination of Spomer Lakes, and require appropriate remedial
action at the site;
5. Prohibit any activity at the landfill that represents a
substantial change in the operations as represented to the County
Commissioners in September 1971;
6. Immediately schedule a public hearing on the issue of
change of the landfill operator;
7. Locate and make available to Mr. Telep and other
members of the public all documents in the County's possession
regarding Central Weld Landfill; and
8. Disclose the County's plans for County Road 271 .
Weld County Commissioners
October 16, 1992
Page 8
These requests represent the minimum actions the County must
undertake in order to comply with applicable statutes and
regulations and to protect the public and the environment. I
request that the County take these actions no later than
October 26, 1992 . If the County refuses to take such action, I
would appreciate the courtesy of an explanation of the County's
position no later than October 26, 1992.
Sincerely,
ent E. Ha on
/te
cc: Sam Telep
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