HomeMy WebLinkAbout991082.tiff HEARING CERTIFICATION
DOCKET NO. 99-27
RE: APPEAL OF WELD COUNTY BOARD OF HEALTH DENIAL FOR A DOMESTIC
SEPTIC SLUDGE PERMIT -ARTHUR, BRADLEY, AND ROBERT BEIERLE, AND
SAMUEL CARLSON, c/o FORREST LEAF
A public hearing was conducted on May 17, 1999, at 9:00 a.m., with the following present:
Commissioner Dale K. Hall, Chair
Commissioner Barbara J. Kirkmeyer, Pro-Tem
Commissioner George E. Baxter
Commissioner M. J. Geile
Commissioner Glenn Vaad
Also present:
Acting Clerk to the Board, Carol A. Harding
Assistant County Attorney, Lee Morrison
Health Department representative, Jeff Stoll
Health Department representative, Pam Smith
The following business was transacted:
I hereby certify that pursuant to a notice dated May 1, 1999, and duly published, May 5, 1999, in
the Fort Lupton Press, a public hearing was conducted to consider the appeal of Arthur,
Bradley, and Robert Beierle, and Samuel Carlson concerning a Weld County Board Of Health
denial on March 23, 1999, for a Domestic Septic Sludge Permit. Bruce Barker, County
Attorney, made this a matter of record. Lee Morrison, Assistant County Attorney, explained the
procedure for a Domestic Septic Sludge Application is similar to a Use by Special Review
Permit; however, the Board of Health makes the final decision and, in the case of denial, the
decision can be appealed to the Board of County Commissioners. Mr. Morrison further
explained at the point of appeal, the Board of Health denial becomes its recommendation;
therefore, the written record from the Board of Health should be incorporated into the record for
the appeal. He also noted the criteria for the Board to use, Section 49.5 of the Weld County
Zoning Ordinance, is the same criteria used by the Board of Health to evaluate the application.
Commissioner Kirkmeyer moved to incorporate the written record of the Board of Health into
the record for this appeal. Seconded by Commissioner Vaad, the motion carried unanimously.
Jeff Stoll, Department of Health, reviewed the process involved in the evaluation of a permit of
this nature, including review of test data on sludge material; soil testing; groundwater testing for
seasonal high depth, ensuring a 7-foot buffer between the groundwater level and the sludge
material; depth of bedrock; type of crop being grown; calculation of the agronomic rate; review
of the site map, ensuring setback requirements are being met; notification of entities,
municipalities, and surrounding property owners within one mile; posting of the property;
publication of a legal notice of the hearing; and establishing Conditions of Approval for the
monitoring of odor, maximum application rate, etc., as deemed necessary. Mr. Stoll noted
25,000 gallons per acre per year is the maximum application rate. He reviewed the application
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and explained staff's recommendation to the Board of Health was to approve the application
with several Conditions of Approval, one of which was to allow application of sludge only on that
portion of the site lying west of the Coal Ridge Ditch due to the groundwater assessment on the
site. Mr. Stoll stated the reasons for denial are in the Board of Health Resolution. Pam Smith,
Health Department, responding to questions from the Board, stated the highest depth of
groundwater was eight and one-half feet; the western portion of the site includes approximately
20 or 25 acres; the crop is dryland wheat; and she assumed the applicant would store the
material in a tank with a 6,000 capacity, then a sample would be done for analysis. She stated
the applicant would then have to submit the records of all the samples on an annual basis. Mr.
Stoll stated this Ordinance is patterned on the requirements of the Individual Sewage Disposal
System regulations, and the methods of monitoring were not completed with staff due to the
denial. Responding to Commissioner Baxter, Ms. Smith said the Zoning Ordinance was
amended in 1991; however, Mr. Morrison pointed out in 1991 the provisions were put into the
Zoning Ordinance, although three or four years prior to that time, application of septic materials
was controlled by the septic regulations.
Forrest Leaf, Leaf Engineering, represented the applicant and stated the company has been in
business for over four years without any violations and it has a good history of cooperation with
the Health Department. He said the basis for the appeal is that the applicant met all the
requirements of Ordinance 89-U; demonstrated compliance with Section 49.5.1.1 through
49.5.1.9; the Board of Health failed to make any finding that the applicant did not meet
applicable standards and conditions of Section 49.5.1.1 through 49.5.1.9 as required by
Ordinance 89-U; Ordinance 89-U states: "the Board shall approve . . ."; and since the Board of
Health failed to make any findings, the Board of County Commissioners must reverse the
decision of the Board of Health since approval is mandatory based on the use of the word
"shall" in Section 49.5.1. Mr. Leaf presented a copy of the appropriate sections of Ordinance
89-U, the Domestic Septic Sludge Summary Sheet, and the Domestic Septic Sludge
Application Review, marked Exhibits K, L, and M.
(Clerk's note -- Due to failure of the automatic tape changer, the following portion of the hearing
was not recorded.) Mr. Leaf stated the Board of Health did not indicate any adverse Findings,
nor did it Find the standards had not been met; therefore, he reiterated the Board of County
Commissioners must reverse the decision unless the Board of Health made Findings of non-
compliance. Responding to Chair Hall, Mr. Leaf stated he did not receive a copy of the Board
of Health Resolution, and Ms. Smith indicated the copies are sent to the owners. Chair Hall
indicated Mr. Leaf should present the application for the Board of County Commissioners to
hear; however, Mr. Leaf indicated the staff's summary and recommendation covers the
essential points of the application. Responding to Commissioner Baxter, Mr. Leaf explained the
sludge material will be incorporated into the soil within six hours of application, as opposed to
injection of the material into the soil. In response to Commissioner Kirkmeyer, Mr. Leaf stated
there are approximately 30 acres on the west side of the ditch. Responding to further questions
from Commissioner Baxter regarding odor and monitoring, Mr. Leaf indicated the reason for
incorporating the material into the soil within six hours is to prevent odor and if the applicant
fails to do so or there is resulting odor, it would be a violation to be corrected, with Health
Department staff monitoring it through a complaint-driven process. Chair Hall stated the
application did not appear to be compatible with existing surrounding land uses, as required in
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Section 49.5.1.7. Mr. Leaf stated the surrounding area is agricultural, the maximum application
would be 19,200 gallons per acre, all setbacks and application amounts would be met, and also
stated the material is considered a source of nutrients. Chair Hall questioned whether there
has been adequate provision for the protection of the health, safety, and welfare of the
inhabitants of the neighborhood and the county, as required in Section 49.5.1.9, and Mr. Leaf
replied that has been demonstrated by the applicants' compliance with Ordinance 89-U.
Responding to Commissioner Kirkmeyer, Mr. Leaf located the Coal Ridge Ditch on the map,
and Mr. Stoll stated the material is not tested for pathogens.
(Began Tape #99-18) Mr. Morrison stated the appeal was received April 14, 1999, and for the
record, Mr. Leaf pointed out the Board of Health Resolution was signed two days later.
Responding to Commissioner Kirkmeyer, Mr. Stoll stated the material is not tested for
pathogens and explained the septic system itself is a form of treatment. Responding to
Commissioner Geile, Mr. Leaf stated the application does not include injection, the material
would be off-loaded into a storage tank which would be monitored by samples to demonstrate
requirements are met. The material is then spread by truck, via a spreader plat and
incorporated into the soil within six hours by disc. Responding to further questions from
Commissioner Geile, Mr. Leaf stated the process for monitoring odor is a complaint-driven
process; however, if in violation, it would be corrected. Mr. Stoll indicated the applicant is also
required to keep the pumping records on site in order for staff to review the rates of application
in the event of a problem. Responding to Chair Hall, Mr. Leaf stated Section 49.5.1.4 will be
met by incorporating the material into the soil within six hours and the use of containment tanks.
Responding to Commissioner Baxter, Mr. Leaf indicated the material would only be applied to
fallow ground, following normal crop rotation, and would not be applied to any growing crop.
Responding to Chair Hall regarding the concern of neighbors over shallow wells in the area, Mr.
Leaf stated a minimum separation of 7 feet is required and will be met, the Ordinance limits the
maximum amounts to be applied, and the application will not exceed certain percolation rates.
He indicated all the foregoing are adequate standards, which is why they were developed and
adopted. Responding to Commissioner Vaad, Mr. Leaf stated the grade of the site is such that
the property drops approximately 20 feet and the applicant has agreed to establish a vegetative
buffer to avoid any runoff into the ditch.
Bruce Fitzgerald, who lives one-half mile south of the site stated he is opposed to this
application and indicated the applicant has not met the requirements of the Ordinance, the
vegetative bunker on the west side of the ditch was plowed under last week, and the map does
not show all homes and wells. Mr. Fitzgerald presented two maps, marked Exhibits N-1 and N-
2, showing the location of 65 homes, with approximately 250 people within a one-mile radius of
the site. He also stated concerns about the groundwater, inconsistencies in the application
between incorporating the material into the soil within either 6 or 12 hours, the site having an
absentee owner, how the site will be restricted since posting signs is not adequate, and he feels
a farm plan should be included. Responding to questions from Commissioner Geile, Mr.
Fitzgerald pointed out the location of the Liquid Waste Management site which was approved
three to four weeks ago and stated that application was for treated sludge which is injected into
the soil, therefore the neighbors did not have objections to its approval. Responding to Chair
Hall, Mr. Fitzgerald discussed raw versus treated sewage, and the delivery of the material from
a truck onto a spreader plate to the ground, which opens the potential for airborne pathogens.
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Tim Morgan, President of the Fort Lupton Boat Club, stated the club leases Sand Hill Lake from
the Lupton Meadow Ditch Company, and the Coal Ridge Ditch flows into Sand Hill Lake. He
said it is used for recreational purposes by 75 to 125 people on some weekends and they are
also concerned with airborne pathogens, odor and quality of water. He presented a letter
signed by the members of the club, marked Exhibit O, who are all in opposition to this request,
and stated the water coming from Coal Ridge Ditch is always muddy when it enters the lake.
Henry Thuener, stated concerns about whether Section 49.2.1.8 regarding public access has
been met. He said the only separation-is a four-wire barbed wire fence, which does not stop
the coyotes running through the area at night, nor does it stop domestic animals, such as dogs
from crossing the property. Mr. Thuener also stated when he had to build a new septic leech
field it could not be too low into the ground because of the groundwater level, and his is
concerned about contamination of the groundwater; and also stated part of the property is
flood-irrigated along the south property line. He asked if any testing is done to prove there are
nutrients present, and disagreed with a truck slinging the sludge onto a field.
Julie Duran stated she lives across from where Liquid Waste Management is dumping and
injecting into the soil and there are no problems with odor, flies, etc. She stated she breeds
and raises greyhounds for a living and is concerned about disease being transmitted to them.
Frank Costa lives east of the site and is concerned with runoff, which goes downhill to Weld
County Road 20, after crossing the field. He stated he has three children who play on the ditch
and he has often observed coyotes crossing the property. Mr. Costa stated further concerns
regarding flies, raw sewage versus treated sewage, and that the surrounding property owners
will be placed in a position of becoming monitors for the site.
Anita Moore, who also sent a letter, stated she is concerned because there are no guarantees
or assurances if there is a problem, and there being no limit on the density of permits in a
particular area, as well as using well water for drinking water in some of the shallow wells in the
area. Mary Ann Abeles stated the irrigation well is always muddy and they do subirrigate from
the ditch. She also stated concerns about flies.
Richard Sewing presented a letter, marked Exhibit P, and stated he agrees with the concerns
mentioned by the other surrounding property owners regarding the effect on groundwater. He
also stated concerns concerning odor since he feels it will be a detriment to his business of
breeding and selling foals, thereby creating a negative impact on his means of making a living.
He further stated there are at least six professional horse operations involving over 200 horses
within one mile of the proposed site; and he discussed the devastation that could occur should
any airborne pathogens or flies carrying diseases infect those horses. Mr. Sewing stated kids
often play in the ditch and fish in the lake and their health could be negatively impacted if the
ditch became contaminated.
Diane Evans discussed the contour of the land, reiterating the drop of approximately 20 feet
which allows drainage across the field, and presented three letters from other surrounding
property owners, marked Exhibits Q, R, and S, who are opposed to the application. Ms. Evans
stated that, wet or dry, the ditch will carry runoff from the site, and stated the ditch does run in
the winter.
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Christine Cary, Rozelle Watson, Gene Wagner, Shirley Wagner, and John Watson, all
surrounding property owners, agreed with the statements of their neighbors and joined in
opposition to the application. Mr. Watson indicated he represents the Parker Trust and did not
receive notice of this hearing, and also added concerns about urban sprawl in the area with two
Recorded Exemptions pending at this time and plans for further development. He also is
concerned because he leases some of his land for hunting purposes.
In rebuttal, Mr. Leaf stated the vegetative buffer has not yet been created, it is on hold until the
approval is received. He said the inconsistency between incorporation within 6 or 12 hours
comes from the difference between Ordinance #89-U which requires 12 hours, and the EPA
which requires 6; therefore, after filling out the application in accordance with Ordinance #89-U,
he changed it to 6, apparently missing some in the process. He reiterated the sludge will be
incorporated into the ground within 6 hours. Mr. Leaf further clarified he did ask for on-site
storage and the monitoring plan was put on hold pending approval. He stated there will be no
application of material in inclement weather and clarified there has not yet been any application
on the site. Mr. Leaf stated the surrounding property owners have stated legitimate concerns;
however, Ordinance 89-U established certain standards and criteria to ensure those concerns
are addressed, and he stated the applicant is willing to comply with all the requirements of the
Ordinance, as well as the Conditions of Approval. Responding to Chair Hall, Mr. Leaf stated
the product is domestic sludge, which is less than 2 percent sewage, and that it is tested
pursuant to Ordinance 89-U. He agreed there is always the possibility of airborne pathogens in
the product; however, it is not tested for pathogens since that is not a requirement of the
Ordinance. Responding to further questions from Commissioner Geile regarding Section
45.1.1.9, Mr. Leaf reiterated the Ordinance standards and requirements were developed in
order to meet the provision for the adequate protection of the health, safety, and welfare of the
inhabitants. Responding to Commissioner Baxter regarding Section 49.5.1.2, Mr. Leaf stated
his alternate method of disposal is to use Denver Metro and he is on its list; however, he does
not have a binding contract with Denver Metro. Mr. Stoll indicated staff only looks to see if an
alternative plan is in place, they do not look for a specific contract. Responding to
Commissioner Kirkmeyer, Mr. Leaf stated bi-monthly samples of groundwater testing are
available.
Mr. Morrison clarified for the Board that notice was sent to the Helen M. Parker Trust, do Robin
Parker in Massachusetts. He stated Section 49.2 of the Zoning Ordinance supplies a set of
operation standards which should be used in the evaluation of this application and stated that
Section addresses testing and prohibitions which are attached to every permit issued.
Commissioner Vaad moved to deny the request of Arthur, Bradley, and Robert Beierle, and
Samuel Carlson for a Domestic Septic Sludge Permit in the A (Agricultural) Zone District, thus
upholding the Weld County Board of Health denial on March 23, 1999, on the basis that the
requirements of Section 49.5.1.5 through 49.5.1.9 have not been met, specifically, that the
ability to prevent, control, and abate spillage of septic sludge has not been demonstrated due to
the grade of the property and runoff; the application is not compatible with surrounding property
uses; the application is not compatible with future development in the area; and the applicant
has not demonstrated adequate provision for the protection of the health, safety, and welfare of
the inhabitants of the neighborhood and the County. Commissioner Vaad stated these are
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avoidable risks. The motion was seconded by Commissioner Geile, who stated his emphasis is
on the provision for the health of the neighborhood, especially on the potential contamination of
groundwater, treated sewage versus raw sewage, and potential odor. Commissioner Baxter
stated he understands the concerns of the neighborhood, with runoff being the most gregarious
one, and that this is a poor location because of the density of the neighborhood, along with the
grade of the property and runoff problems. On a call for the vote, the motion carried
unanimously.
This Certification was approved on the 19th day of May, A.D., 1999.
APPROVED:
ATTEST: /�1JI "!'!. BOA;D OF COUNTY
OUNT , COWeld County Clerk to th
— 7Da K. Hall, Chair
Deputy Clerk to the B � r, �
c N�
, /Barba a J. Kirkmey , Pro-TemU
TAPE #99-17 & #99-18
Georg ter
DOCKET#99-27
. J. eile
Ata/MGlenn Vaa
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HL0025
EXHIBIT INVENTORY CONTROL SHEET
Case Hearing of Appeal of BOH decision for denial - Beierle/Carlson, % Forrest Leaf
Exhibit Submitted By Exhibit Description
A. Board of Health Resolution of Recommendation
B. Board of Health Minutes for March 23, 1999
C. Forrest Leaf Notice of Appeal
D. Clerk to the Board Notice of Hearing
E. Charles Baum Letter of Concern (5/6/99)
F. J. Frank & Marian Hobbs Letter of opposition (5/10/99)
G. Gilbert & Diana Evans Letter of opposition (5/12/99)
H. Robert and MaryAnn Kerr Letter of opposition (5/14/99)
Gene & Shirley Wagner Letter of opposition (5/14/99)
J. Jeff &Anita Moore Letter of opposition (5/14/99)
K. Forrest Leaf Portion of Ordinance #89-U
L. Forrest Leaf Domestic Septic Sludge Summary Sheet
M. Forrest Leaf Weld County Board of Health Domestic
Septic Sludge Application Review
N. Bruce Fitzgerald (Marked N-1, N-2) 2 versions of map
O. Fort Lupton Boat Club Letter of opposition
P. Richard Sewing Letter of opposition
O. Diane Evans Letter of opposition from Jeff& Anita Moore
R. Diane Evans Letter of opposition from Bryan, Dawn, and
Jacob Bernhard
S. Diane Evans Letter of opposition from David Weber
T. Bruce Fitzgerald Overhead (transparency) Map
U.
V.
W.
ATTENDANCE RECORD
HEARINGS ARE AS FOLLOWS ON THIS 17TH DAY OF MAY, 1999:
DOCKET#99-27 - BOARD OF HEALTH APPEAL
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