HomeMy WebLinkAbout982203.tiff HEARING CERTIFICATION
DOCKET NO. 98-57
RE: ACTION OF BOARD CONCERNING SITE SPECIFIC DEVELOPMENT PLAN AND
SPECIAL REVIEW PERMIT #1198 FOR AN OIL AND GAS SUPPORT AND SERVICE
FACILITY(BRINE WATER DISPOSAL) IN THE A (AGRICULTURAL)ZONE DISTRICT -
ENVIRO-CYCLE, LLC, % HOWARD BOATRIGHT
A public hearing was conducted on November 9, 1998, at 10:00 a.m., with the following present:
Commissioner Constance L. Harbert, Chair
Commissioner W. H. Webster, Pro-Tem
Commissioner George E. Baxter
Commissioner Dale K. Hall
Commissioner Barbara J. Kirkmeyer
Also present:
Acting Clerk to the Board, Esther Gesick
Assistant County Attorney, Lee Morrison
Planning Department representative, Scott Ballstadt
Health Department representative, Trevor Jiricek
Public Works representative, Don Carroll
The following business was transacted:
I hereby certify that: pursuant to a notice dated September 25, 1998, and duly published October
28, 1998, in the Fort Lupton Press, a public hearing was conducted to consider the request of
Enviro-Cycle, LLC, % Howard Boatright for a Site Specific Development Plan and Special Review
Permit #1198 for an Oil and Gas Support and Service Facility (brine water disposal) in the
A (Agricultural) Zone District. Lee Morrison, Assistant County Attorney, made this a matter of
record. Scott Ballstadt, Department of Planning Services representative, presented a brief
summary of the proposal and entered the favorable recommendation of the Planning Commission
into the record as written. Mr. Ballstadt gave a brief description of the location of the site and
stated the proposal is consistent with the Comprehensive Plan and Zoning Ordinance. He further
stated there is a residence located on the eighty-acre parcel, as well as one west of Weld County
Road 39. Mr. Ballstadt explained the surrounding uses consist of agricultural and oil production.
In response to Commissioner Kirkmeyer, Mr. Morrison explained it has been unclear whether this
application falls under the jurisdiction of the Oil and Gas Commission or the Colorado Department
of Public Health and Environment for approval of a Certificate of Designation (CD), and that
determination should be make by the local Board of County Commissioners. Mr. Morrison stated
the applicant has not presented a financial assurance; therefore, the State Health Department is
requesting a CD be required, and indicated there is a minimum thirty-day review process. Mr.
Morrison stated it is possible to approve the Special Use Permit conditional on receiving the CD,
and added by beginning construction prior to receiving the CD, there is some risk to the applicant.
Trevor Jiricek, Department of Health representative, explained a CD will also require a ten percent
surcharge per Welc County Ordinance. Mr. Morrison stated two similar facilities approved prior to
1995 were not required to have a CD; neither are they subject to a ten percent surcharge, since
that specific fee was instituted after approval of the facilities. In response to Commissioner
Kirkmeyer, Mr. Jiricek clarified one other facility of this type is required to have a CD and pay the
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is permitted for Class I and II injection wells. He further stated composting facilities are not required
to have a CD.
Responding to Commissioner Hall, Monica Sheets, Colorado Attorney General's Office representing
the State Health Department, requested a CD be required based on the definition of solid wastes
in the Colorado Revised Statute. Ms. Sheets stated the well will be regulated by the Oil and Gas
Commission; however, the surface facilities need to be regulated by the Colorado Department of
Public Health and Environment. Mr. Morrison indicated a memorandum dated October 21, 1998,
in which he explained non-commercial facilities are regulated by the Oil and Gas Commission and
commercial facilities are regulated by the State Health Department. Responding to Commissioner
Baxter, Mr. Morrison explained the process of issuing a Certificate of Designation and added a
Special Review Permit can be approved without a CD. In response to Commissioner Kirkmeyer,
Mr. Morrison stated he referred to Section 324A(e) of the Oil and Gas Regulations in his
memorandum to point out that the Oil and Gas Commission has the authority to prohibit disposal
of materials at a site which does not have a Certificate of Designation. He added the surcharge is
required by Ordinarce; however, the Ordinance can be amended to allow the applicant to operate
without the surcharge until other previously permitted facilities are also required to pay the fee. Mr.
Morrison stated the Ordinance carries out the requirements of the Home Rule Charter; therefore,
if the Ordinance is amended, it needs to remain consistent with the Charter. He added the applicant
has discussed the exception in the Statute regarding recycling and whether this facility qualifies.
Mr. Morrison stated staff concurs that there is not a sufficient amount of material being recycled to
justify the exemption.
Jacqueline Johnson, Attorney, represented the applicant who was present and stated this
application was submitted on July 8, 1998, and referrals were sent out; however, the State Health
Department was not consulted and to date has not been able to review the application. Ms.
Johnson stated the applicant has modified the plans to address the local Health Department
concerns and has received approval from the Oil and Gas Commission to drill a Class II injection
well. She gave a brief overview of the operation procedures, as well as the layout of the facility. Ms.
Johnson stated the Certificate of Designation is a requirement of the 1995 amendment to the Solid
Wastes Act. According to the Act, commercial facilities are defined as those which receive wastes
from more than one operation. She stated a CD should not be required for facilities which process,
reclaim, or recycle materials, and referred to a letter from Glenn Mallory, dated October 16, 1998,
which states the main issue is the brine water because all other materials leave the site. Ms.
Johnson requested the Oil and Gas Commission regulate the facility and stated an additional layer
of regulations is not necessary. She requested the Board consider the applicant has met all of the
statutory requirements of the Solid Wastes Act; the applicant has worked diligently with the Health
and Planning Department staff; the State Health Department is requesting a CD, without having
formally reviewed the application; public notice has been given concerning the application, and the
time period required by the State Health Department to review a CD will place a hardship on the
applicant by delaying construction. Ms. Johnson requested the Board waive the CD or treat the
applicant fairly by al owing Enviro-Cycle to operate until the other facilities are also required to have
a CD and pay the surcharge fee. She stated if a CD is required, it should only apply to the injection
well operation and the remaining operations should fall under the exception of the Solid Wastes Act.
In response to Commissioner Baxter, Ms. Johnson stated the other facilities do not separate the
brine water before injecting the materials into a well. Responding to Commissioner Hall, Howard
Boatright, operator, stated two percent of the total product received is recycled oil and approximately
three percent is sand. In response to Commissioner Kirkmeyer, Mr. Boatright stated the oil is sold
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on the market and the sand is hauled to a permitted landfill. Ms. Johnson reiterated if required, a
Certificate of Designation should only apply to the brine water which is finally deposited at the
facility. Responding to Commissioner Webster, Mr. Boatright stated the injection well will be 9,000
to 9,700 feet deep, and indicated the location of the well. In response to Commissioner Kirkmeyer,
Ms. Johnson expressed concern with the uncertainty of what the State Health Department will
require and the hardship this places on the applicant. Commissioner Kirkmeyer referred to Senate
Bill#95-017, which states the Oil and Gas Commission's jurisdiction is exclusive to non-commercial
wastes. Ms. Johnson stated there is also a rule which, although the jurisdiction of the Oil and Gas
Commission applies to non-commercial facilities, which allows the State Health Department to
permit oversight of a commercial facility by the Commission.
Robin Reed, Oil and Gas Commission, explained Class II wells are used for the disposal of brine
water, and permits for these types of wells are issued by the Oil and Gas Commission. Ms. Reed
stated commercial facilities are different from other Class II wells which the Commission has
permitted in that they accept materials from smaller companies who cannot afford to process the
materials themselves. She further stated this application is different from the other facilities
discussed because it proposes to dump the materials onto a concrete slab with exposure to the
atmosphere and then run it through channels into a contained system. Ms. Reed stated due to this
new process, the Commission met with the applicant for further clarification, and during the meeting
the applicant's representative indicated that the Oil and Gas Commission does not have jurisdiction
over the facility. Ms. Reed stated the Oil and Gas Commission has reviewed Senate Bill #95-017
as discussed previously, and added it does require a $5,000 bond for the well which does not cover
the surface facilities, so the Commission would not have the necessary funds to address any future
problems. In response to Commissioner Baxter, Ms. Reed clarified the Oil and Gas Commission
has jurisdiction over all EMP waste facilities except for commercial facilities. Responding to
Commissioner Kirkmeyer, Mr. Morrison read the definition of solid wastes for the record and
indicated this is a broad definition under which there are sub-definitions which are exempt from
being treated as a solid waste. In response to Commissioner Hall, Ms. Reed stated in 1993 or 1994,
it was brought to the attention of the Oil and Gas Commission that certain facilities were not
disposing of materials properly; therefore, it created rules stating materials must be disposed of at
permitted commercial or solid waste facilities with a Certificate of Designation. Responding to
Commissioner Webster, Ms. Reed clarified based on technical items of concern regarding the off-
loading of the materials onto a concrete slab, the Oil and Gas Commission started its research of
Senate Bill #95-017 and feels it does not have jurisdiction over the surface facilities in this
application. Responding to Chair Harbert, Ms. Reed stated she is not sure if there will be more
odors as a result of open off-loading; however, she indicated the drop in pressure when leaving a
pressurized truck may cause the expansion of the gases causing more odors. In response to Mr.
Morrison, Ms. Reed stated the Oil and Gas Commission has received financial assurance for the
well and it can be drilled; however, it cannot receive fluids until a permit for disposal is obtained.
Ms. Sheets clarified the State Health Department received notice of the hearing; however, they were
not able to review the terms until this morning. She stated her main concern is with the
environmental issues, and she is not sure if issues such as odor control, groundwater protection,
and financial assurance have been addressed by the local health department. Ms. Sheets stated
the Colorado Solid Waste Division does not have jurisdiction of the injection well; however, they do
address the surface facilities as determined by legislature. In response to concerns from Ms.
Johnson, Ms. Sheets stated the State Health Department will need to review the brine water, as well
as the sand and oil being separated. She further stated the State Health Department, according
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to State Statute, cannot delegate its authority to the Oil and Gas Commission. Ms. Sheets stated
according to Section 30-20-102.5, C.R.S., in order to qualify as a recycling facility, it must recycle
approximately the same amount of material entering the facility and two percent for this facility does
not qualify it. She added the State Health Department requires a minimum of thirty days to review
the Certification of Designation and compare it to the minimum standards of a similar facility.
Responding to Commissioner Kirkmeyer, Ms. Sheets stated it is not possible to grant a CD without
the State Health Department according to State Statute, and added in the past the State Health
Department has not considered brine water a recyclable material.
Ms. Johnson stated that the requirement of disposing materials at a permitted facility pre-dates the
1995 amendment and if so, the other existing facilities are operating in violation of that requirement.
She further stated a video of the open-pad operation has been shown to the local Health
Department and the applicant has worked with similar facilities in Texas. Concerning odor
concerns, Ms. Johnson stated a Condition of Approval requires the applicant to inject biocide into
the material as it enters the sandpit, and she reiterated it is in the open air for only ten hours which
does not allow enough time to create excessive odors She added the only solid waste which is
disposed of at the site is the brine water that is injected into the well, one-hundred percent of the oil
that enters the facility is resold, and the remaining sand is hauled to a permitted landfill. Ms.
Johnson stated the applicant is not trying to avoid regulations; however, the concerns that the State
Health Department have already been addressed. In response to Commissioner Baxter, Mr. Jiricek
said the Development Standards do not specifically address odor control; however, a memo was
sent to the applicant August 11, 1998, and they responded in the letter dated August 24, 1998,
agreeing to inject Biocide as described in Development Standard #21. In response to Mr. Morrison,
Mr. Jiricek stated Development Standard #15 will not require an Air Pollution Permit; however, the
applicant will still need to submit evidence to prove a permit is not necessary. Following discussion,
Mr. Boatright explained untreated ponds grow bacteria which creates an odor; however, the fluids
will be treated as they arrive, being separated and injected into the well within ten or twelve hours.
He stated bacteria cannot form within this amount of time and the concrete pad will also be washed
down to avoid residue. Mr. Boatright clarified there will be a petroleum odor which cannot be
prevented; however, the bacteria odor will not be present.
Commissioner Kirkrneyer commented that following the 1995 amendment,the Colorado Department
of Public Health and Environment received jurisdiction over commercial facilities which require a
Certificate of Designation, and the Oil and Gas Commission regulates non-commercial sites. She
stated a majority of the material is brine water which is disposed of on the site and does not qualify
as a recyclable material; therefore, she moved to find a Certificate of Designation is required for
Enviro-Cycle, LLC, % Howard Boatright. Commissioner Hall seconded the motion, which carried
unanimously. In response to Commissioner Kirkmeyer, Mr. Morrison stated the Site Specific
Development Plan and Special Review Permit #1198 may be approved today; however, he
suggested the applicant be prohibited from receiving waste materials prior to final approval of the
Certificate of Designation. Commissioner Kirkmeyer stated the State Health Department has raised
several concerns regarding the odor control, groundwater contamination, and financial assurance.
Responding to Commissioner Kirkmeyer, Mr. Morrison stated the Certificate of Designation will not
address the injection well, only the surface facilities. Commissioner Hall commented he is reluctant
to approve a Special Review Permit until he has heard testimony from the State Health Department
regarding its technical review of the facility. Commissioner Baxter stated the applicant may not wish
to drill the well until they are sure of the requirements and Commissioner Kirkmeyer added the
applicant indicated they would like to see the other facilities brought to the same standards. Ms.
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Sheets clarified the State Health Department will not be reviewing the injection well, and explained
if the facility obtains a CD, they will have to pay into the Hazardous Substances Response Fund
which is based on l:he volume handled at each individual facility.
In response to Commissioner Kirkmeyer, Ms. Johnson stated the applicant will not drill without
approval of the Certificate of Designation or a Special Review Permit. Commissioner Kirkmeyer
indicated while waiting for approval of the CD, legal staff needs to research whether the facilities
approved prior to 1995, can be required to obtain a CD. Responding to Commissioner Kirkmeyer,
Ms. Johnson stated the applicant does not want to withdraw his application and will not drill the well
until he is certain of what will be required. Following discussion Commissioner Kirkmeyer moved
to continue this hearing concerning the application of Enviro-Cycle, LLC, % Howard E3oatright for
a Site Specific Development Plan and Special Review Permit#1198 for an Oil and Gas Support and
Service facility (brine water disposal) in the A (Agricultural) Zone District to December 21, 1998, at
10:00 a.m. Commissioner Hall seconded the motion, which carried unanimously.
This Certification was approved on the 16th day of November, 1998.
// APPROVED:
ATTEST: 4404v ` 'La�r/" BOARD OF COUNTY COMMISSIONERS
►� . r �.• � 1 WELD COUNTY, COLORADO
Weld County Clerk t.. .w » 1 �laz���. c�
ti � ci Constance L. Harbert, hair
Deputy Clerk to t � ? f� - . \\ /\J '2) 11 1' A"�/
c !S� W. H. W bster, Pro-Tem
TAPE#98-31 - yy
C.C.1s
eorge axter
DOCKET#98-57
Da K. Hall/ Barbara J. Kirkmeyer
982203
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ATTENDANCE RECORD
HEARINGS ARE AS FOLLOWS ON THIS 9TH DAY OF NOVEMBER, 1998:
DOCKET#98-57 - ENVIRO-CYCLE, LLC
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