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BOARD OF COUNTY COMMISSIONERS
COUNTY OF WELD, STATE OF COLORADO
REPORTER'S TRANSCRIPT OF PUBLIC HEARING
December 16, 1996
IN RE:
PUBLIC HEARING FOR SITE SPECIFIC DEVELOPMENT PLAN AND
SPECIAL REVIEW PERMIT -- HIRSCH DAIRY
Pursuant to Notice to all parties in
interest, the above-entitled matter came on for public
hearing before the Board of County Commissioners of
Weld County on Monday, December 16, 1996 , commencing at
10: 04 a.m. , at the Weld County Centennial Center,
915 - 10th Street, 1st Floor Hearing Room, Greeley,
Colorado, before Linda M. Koenig, Registered Professional
Reporter and Notary Public within and for the State of
Colorado.
IrB R S BILLINGS REPORTING SERVICE 970228
Registered Professional Reporters
Greeley (970)356-3306 Fort Collins
710- l lth Avenue,Suite 106 800 546-3306 419 Canyon Avenue,Suite 220
Greeley, Colorado 80631 FAX(970)356-3362 Fort Collins,Colorado 80521
2
1 PROCEEDINGS
2
CHAIR KIRKMEYER: Okay. Good morning. It' s
3 December 16th. I'm calling the board of hearings for the
4 Board of County Commissioners.
5
May we have role call , please, Shelly.
6 MS. MILLER: Dale Hall .
7 MR. HALL: Here.
8 MS . MILLER: Connie Harbert.
9 MS. HARBERT: Here.
10 MS . MILLER: Bill Webster.
11 MR. WEBSTER: Here.
12 MS. MILLER: George Baxter.
13 MR. BAXTER: Here.
14 MS. MILLER: Barb Kirkmeyer.
15 CHAIR KIRKMEYER: Here.
16 Today we are -- have the continuance from
17 November 20th, 1996, Special Review Permit for a
18 2000-head dairy operation in the A (Agricultural) Zone
19 District of Hirsch Dairy of the Stock No. 9659 .
20 And I believe, when we continued last time,
21 we were with Mr. Hellerich, who is at the podium, and we
22 were in the middle of the public hearing.
23 So if you would like to come forward. And I
24 think you told us you were going to take about another
25 half hour and . . •
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1 MR. HELLERICH: I think my recollection is
2 different. We do have --
3 CHAIR KIRKMEYER: At any rate, Merry
4 Christmas and go ahead and get started.
5 MR. HELLERICH: Good morning. Just for the
6 record, I would state I do represent several of the
7 neighbors and landowners in this area. Gene and Pam
8 Reiber, Lind Farms, Inc. , and Weld County -- and there's
9 a Jack and Pam Cabala, L. and M. Nash -- Richard and
10 Doris Nashland, and Dan and Wendy Rauh. Those are the
11 landowners in the immediate area.
12 I think when we broke, we were going to
13 start in with Forrest Leaf making a presentation on
14 technical data.
15 Before I do that, though, there's a couple of
16 exhibits I want to make part of the record, things that
17 have transpired since the previous meeting.
18 If I could have -- I guess, three items
19 marked.
20 (Pause)
21 MR. HELLERICH: The first two additional
22 exhibits are Y and Z . And it was probably -- I've got
23 copies of these, I 'm not sure whether you do or not, but
24 I wasn't sure if they are on the record.
25 The first one, Exhibit Y, is a letter dated
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1 November 24th, 1996, directed to Mr. Hirsch from the
2 State of Colorado. And it comes from the director of
3 Water Quality Control Division.
4 The second one is the letter dated December
5 2nd, 1996, from the State of Colorado. This one comes
6 from the Water Quality Division, too, and the Department
7 of Public Health and Environment.
8 Those two I want to make part of the record,
9 as well .
10 (Pause)
11 MR. MORRISON: I know the board has seen the
12 December 2nd letter. I'm not sure about the November
13 24th letter.
14 CHAIR KIRKMEYER: Do you have the -- the
15 December 2nd one, you said was Exhibit Y?
16 MR. HELLERICH: No. That should be Z . Z .
17 December 2nd is Z .
18 CHAIR KIRKMEYER: Okay. We have that one.
19 MR. MORRISON: The staff also was supplied
20 the one marked as Y, so they have seen both of them.
21 MR. HELLERICH: They have seen both of them,
22 okay. Y is the letter of November 24th?
23 And I also would like to submit a petition
24 that's been circulated and signed by the neighbors in
25 this area.
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1 These are farmers in the area, long-term
2 residents in the area, and they're familiar with the area
3 and what's going on. And we have a list of those
4 individuals who have signed this petition, who are all in
5 opposition to this application, and I would like to
6 submit that. That's been marked as Exhibit AA.
7 I want to ask that Forrest Leaf come up now.
8 He is a registered and certified engineer who has done an
9 investigation and review of this application of
10 compliance.
11 I have his resume, that I want to make part
12 of the record as well , and that has been marked as
13 Exhibit BD. And I do have extra copies for each one of
14 the members of the board.
15 (Pause)
16 MR. LEAF: Good morning. As Mr. Hellerich
17 said, I 've been retained by the list of opposers that he
18 read off to look at the technical merits of this proposed
19 application. I've done so. And what I 'd like to do
20 today is present to you my findings.
21 CHAIR KIRKMEYER: Before you do that, could I
22 get you to give your name and address for the record.
23 MR. LEAF: Oh, yeah.
24 CHAIR KIRKMEYER: Thank you.
25 MR. LEAF: Forrest Leaf, 13946 County Road
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1 56, Hillrose, Colorado 80733 .
2 Before I begin, I'd refer you to the last
3 three maps of the blue handout, if you still have it,
4 that we talked about on the 26th of November. And what I
5 want to show you is some of the things that I was up
6 against in reviewing applicant's proposed plan.
7 If you'll look at the three maps, you'll see
8 they're -- they're -- really they're not consistent in
9 themselves. They're all of the site. But because of the
10 way the thing has evolved --
11 MR. HALL: Would you refer to which map
12 you're talking about?
13 MR. LEAF: Yeah. Why don't we start on 46,
14 Map 46. And then also 47, 48 , and 49 .
15 The problem I had from the onset with this
16 process is trying to identify exactly what the applicant
17 proposes to do.
18 When you go through the submittals to the
19 manure management -- to the state on the manure
20 management plan and also for the USR proposals, they
21 don't make really clear what map applies to what.
22 In fact, if you look at the maps, you'll see
23 different locations of lagoons. Different locations of
24 where they -- in reference to trailers and that type of
25 thing.
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1 So from the beginning, I had a hard time
2 trying to really discern -- knowing my knowledge of
3 what's out on the property and putting it to these
4 maps, they're not consistent. And I wanted to point
5 that out first.
6 And with that, the first thing I'd like to
7 talk about is the location of the lagoon. And I did hand
8 out a map.
9 If you look at this first map, it's called --
10 has soil descriptions on it and it shows a bunch of lines
11 in it. I have an overhead up here.
12 CHAIR KIRKMEYER: What exhibit are you
13 calling that one?
14 MR. LEAF: Pardon?
15 CHAIR KIRKMEYER: What exhibit is that?
16 MR. LEAF: He's got it labeled Exhibit --
17 MR. MORRISON: CC.
18 MR. LEAF: Yeah.
19 MR. MORRISON: The four maps are labeled
20 CC . . .
21 CHAIR KIRKMEYER: Okay. Thank you.
22 MR. MORRISON: The four photo maps.
23 CHAIR KIRKMEYER: Thank you.
24 MR. LEAF: And what that map is is actually
25 an aerial photograph that was taken last year, I
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1 believe. And it shows the lagoon area -- this way being
2 to the north, the milk parlor and the pens and the manure
3 holding facility and the Smith lateral . This is Weld
4 County Road 23 and this is Weld County Road 78 .
5 As you can see from a map that you have in
6 your hands there, Exhibit CC, you can see where I've
7 located with five little x's -- and I had a delineated
8 location of test bores. Now, back in December of 1993 ,
9 applicants originally proposed to locate the lagoon. And
10 that location, in fact, I went out and did soil testing.
11 And you heard about that on the 26th.
12 And what I want to show you here is the soil
13 types. And if you refer to my overhead, I 've taken time
14 to list them. This map comes from the SES Soil Maps of
15 Weld County.
16 And you can see that where they located the
17 lagoon and where they propose to locate the lagoon by
18 soil test, is, in fact, two different locations.
19 And I'd like to draw your attention to the
20 fact where they did locate the lagoon is predominantly in
21 Soil Type 52 , which, as you see on the overhead is an
22 Otero sandy loam. And permeability is rapid; 6 to 20
23 inches per hour.
24 In fact, that's not suitable for the
25 location -- in fact, it says in the soil survey, it's not
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1 suitable for the location of lagoons and septic tanks and
2 that type of thing.
3 Now, one thing that discouraged me in this
4 whole process is applicant -- applicant's consultant has
5 been up here testifying before you. And in the reports,
6 they pointed out we did soil tests; we went out and we
7 did in situ soil tests.
8 But they never ever disclosed that those soil
9 tests -- that to date still in their application pertain
10 to that site where you see marked with the x's, they
11 never disclosed to you that no soil tests were ever done
12 prior to construction of that lagoon. And I think that's
13 alarming.
14 The next thing I 'd like to discuss is the
15 site drainage. Now, if you recall on the 26th, the
16 Smith Lateral 's attorney was up here. And he talked
17 about the fact that there's a lot of drainage from the
- 18 manure storage area.
19 And, in fact, that is located right here
20 above the Smith lateral . Here's where they stockpile all
21 their dry manure.
22 He talked about the fact that there's been no
23 berm or containment of that pile of manure. It's been
24 allowed to -- not only surface water runoff from storm
25 events but also the manure itself has flowed into the
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1 ditch. And we have --
2 (Pause)
3 MR. LEAF: If you recall , this was an
4 exhibit -- Exhibit N that was presented on the 26th. And
5 it clearly shows litter. Straw is blown into the ditch.
6 The ditch here is totally filled with manure, wet manure
7 or wet -- semi-wet manure.
8 And, incidentally, under the CAFO regs,
9 litter is defined as a manure source; it's not just
10 because it's clean straw. CAFO is designed to prevent
11 this type of occurrence from occurring.
12 MS . HARBERT: Would you point out on your
13 map, again, where the manure is stored.
14 MR. LEAF: Yeah. In fact, if you're looking
15 at that handout, it's this -- this --
16 CHAIR KIRKMEYER: You know, there's a glare
17 on that map up there. I can't really tell what it is.
18 MR. LEAF: Oh, really.
19 CHAIR KIRKMEYER: Yeah.
20 MR. LEAF: Well , how about if we do it this
21 way. Why don't I go ahead and -- if you look at this
22 next one -- and this would be Exhibit --
23 CHAIR KIRKMEYER: CC, No. 2 map?
24 MR. LEAF: Yeah.
25 CHAIR KIRKMEYER: Okay.
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1 MR. LEAF: This area right up here is where
2 they store manure. It's above the ditch. They have
3 their drylots where they put their dry cows here. Also
4 they have a feed yard here, their milk parlor, and all
5 their pens below the ditch here. Here's the lagoon.
6 This way is the lagoon.
7 So you can see all their manure is stored
8 above the ditch. And as of today, there's no containment
9 for that manure, either from it running directly into the
10 ditch or from storm runoff.
11 CHAIR KIRKMEYER: Thank you.
12 MR. LEAF: Uh-huh.
13 As far as this plan, I 've seen no
14 comprehensive site drainage plan. It's been talked about
15 in very brief detail. Comments like, There will be
16 structures built.
17 But for me to go in and adequately evaluate
18 if these structures are sized appropriately, can handle
19 the storm runoff that they're required to handle, it
20 hasn't been done.
21 And I have seen -- and even up to date, I
22 have seen no design, no consideration of how these things
23 will be located, where their layout will be, and if
24 they're adequately sized.
25 In fact, the manure containment site has not
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1 even been mentioned at all by the applicant. And if you
2 look in your Weld County Zoning Ordinances, it is
3 required that all manure containment sites be located on
4 an impervious pad.
5 And that hasn't even been discussed in
6 this plan. Applicant, to date, nor has the state, nor
7 has staff, ever said that that manure -- this stockpile
8 of manure, located right here, is located on any
9 impervious pad.
10 In fact, the applicant's consultant did not
11 do any type of soil testing in that area and recommend
12 any type of compaction or liner for that. It's been
13 totally passed over and neglected.
14 And that is a requirement, not only of the
15 CAFO regs, but also of your Weld County Zoning Ordinances
16 and that had not been addressed.
17 The other thing that has been addressed, but
18 I don't think, as I mentioned, has been adequately
19 addressed, is the fact that site drainage from the manure
20 storage is purported to be collected by some ditch that
21 has yet been constructed conveyed to a place in the Smith
22 lateral , which is located approximately right here, just
23 to the west of the trailer houses, conveyed up and over
24 or below the ditch, they don't say what, they don't say
25 what size of pipe, and then will somehow -- no -- no
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1 provisions for how it's going to get from here to the
2 flow path into this lagoon.
3 And, in fact, I submit to you that that's
4 impossible with the current topography.
5 You'll need to label this.
6 If you look here, this is the trailer houses
7 to the east. The north is this way, again. Existing
8 corrals and milk parlor are over in this area. This is
9 where they have their proposed expansion. And you can
10 see the gradient here.
11 It all runs to the -- or there's a swell here
12 in the field. But it all runs -- and it's a pretty good
13 grade to the north. They claim they want to bring water
14 here, run it down here, and somehow get it uphill to
15 the lagoon.
16 Now, that can be done, but we haven't seen
17 any pumps. We haven't seen any type of conveyance
18 structures. So as it looks now, I think it's impossible,
19 until they actually come in and design that and -- to
20 where we can evaluate it to see if capacities, if
21 flowpaths are right to do that.
22 I might also mention, too, that right in
23 here, there is an existing service line to Lind Farms
24 that comes out of the Smith lateral . Their proposed
25 expansion will go right over the top of that.
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1 And, in fact, any type of piping, they would
2 have to -- if they have to excavate that, they would have
3 to possibly disturb that existing tile line that goes
4 through there. And no permission or agreement had been
5 reached as to doing that and encroaching on that
6 easement.
7 MR. MORRISON: For the record, that's the top
8 photo of double -- of Exhibit DD.
9 MR. WEBSTER: Can I ask a question at this
10 point.
11 CHAIR KIRKMEYER: Sure.
12 MR. WEBSTER: The drylots, where does the
13 runoff to the drylots go now? You say it doesn't --
14 can't reach the lagoon system; is that what you're
15 saying?
16 MR. LEAF: Correct. The drylots, as seen in
17 this photo right here --
18 MR. WEBSTER: -- the other side of the Smith
19 lateral --
20 MR. LEAF: That's right. They're on the
21 uphill side of the Smith lateral. And today, everything
22 drains into the Smith lateral .
23 It either drains -- goes towards the north
24 from the manure storage area and drains into the ditch,
25 or it drains towards the south, and either runs into the
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1 Smith lateral where it's piped under where his milk
2 parlor is, or runs into this hay field and then overflows
3 and runs down County Road 78 . So there's no containment.
4 MR. WEBSTER: There's no lagoon system, in
5 effect, for the drylot system at the present --
6 MR. LEAF: No, not currently. Nor have I
7 seen how they propose --
8 MR. WEBSTER: It doesn't say anything on
9 the map --
10 MR. LEAF: Right.
11 MR. CHILSON: Excuse me for interrupting,
12 but, Mr. Morrison, can we see the exhibits as soon as the
13 commission is through with them because we have not had
14 an opportunity to look at them?
15 MR. MORRISON: Sure.
16 MR. LEAF: And I 'll point out real briefly on
17 this overhead, I determined that there's about 31 acres
18 of drainage above the Smith lateral that has not been
19 properly addressed, neither is it conveyed or contained.
20 And also, again, as I pointed out in the
21 photo that you just saw, the hardboard photo, that they
22 don't show how they're going to convey that water, either
23 over or under the ditch, and into the lagoon.
24 And to merely make a statement that we're
25 going to do this, is inadequate for somebody to
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1 technically come in and evaluate that. And that's been
2 the problem that I 've had with this application.
3 This just shows you -- this is from
4 Terracon's submitted plan. It shows, actually, the
5 contours. And I believe these are just taken off of a
6 7-1/2-minute plot sheet. I don't believe they actually
7 did any topo surveying out there.
8 But you can actually see that the drainage --
9 the fallways in this map, for example, from where they
10 handled the manure, it tends to want to drain through the
11 fallway here and goes towards the north.
12 And in this area -- in fact, if you look, the
13 lagoon is not situated that far to the north; as you can
14 see in this photo here. It's -- here's the trailer house
15 as they reference.
16 You can see on this map, they have the lagoon
17 located probably about 150, 200 feet to the north to give
18 the illusion maybe that that water will be intercepted.
19 And that's not the case. We have aerial photos to
20 show that.
21 Now, as far as the drainage, you heard the
22 Smith Lateral 's attorney talk about that the lack of an
23 agreement or the violations that the county has already
24 cited the applicant on for putting manure product and
25 drainage water into the ditch. To date that has not
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1 been addressed.
2 In fact, there's a violation of 10-22-96 from
3 the state that says -- and I'll refer to it. It's No. 32
4 in your blue packet.
5 And that letter is to Mr. Hirsch from
6 Victor Sainz . And it talks about the fact that there
7 was a complaint from the Smith Lateral Ditch Company,
8 and that water -- wastewater or manure was getting into
9 the ditch.
10 And if you look at the fourth paragraph --
11 MR. CHILSON: Is this an exhibit?
12 CHAIR KIRKMEYER: Yes.
13 MR. CHILSON: What's the exhibit?
14 MR. MORRISON: It's in the blue packet,
15 Mr. Chilson.
16 MR. CHILSON: So the blue packet, page what?
17 CHAIR KIRKMEYER: No. 32 .
18 MR. LEAF: It says here -- and I'll -- I 'll
19 read this. Also during the inspection -- apparently,
20 Mr. Sainz went out and inspected the site -- we did not
21 find evidence of wastewater or manure contamination at
22 the Smith lateral ; however, the manure drying pile did
23 not have the runoff containment berm to direct runoff to
24 contain -- to your containment lagoon. We recommend you
25 provide one immediately or relocate the pile to the south
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1 of its present location.
2 Neither had been done. And I would assume
3 that immediately would mean -- maybe not physically go
4 out there and put it up tomorrow, but start making plans
5 addressing how you're going to do that. And even in this
6 latest application, it is not addressed sufficiently.
7 From my work that I 've done, the Smith
8 lateral has the capacity of about 31 cfs. And this is
9 just to kind of give you an idea of how much water is
10 going to come off. It's not you take a ditch V and you
11 go out there and you pull a ditch, there's going to have
12 to be a significant drainage channel through here.
13 CAFO regulations require that a 25-year,
14 24-hour storm event be directed and contained from any
15 wastewater running off of a manure product or open lots.
16 The 24-hour, 25-year storm event generates a
17 peak runoff of 19 cfs, which is two-thirds of the
18 capacity of the Smith lateral, which is a significant
19 sized concrete lined ditch. And it will generate a peak
20 volume of about 6 acre-feet.
21 As I said, there's no existing runoff control
22 structures nor any way to keep that water from getting
23 into the Smith lateral .
24 This is an excerpt from your Weld County
25 Zoning Ordinance. And you'll see that -- 47 . 1. 6, all
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1 runoff retention and containment facility shall meet --
2 you probably know it anyway.
3 CHAIR KIRKMEYER: Not by heart.
4 MR. LEAF: Okay. All runoff containment
5 facilities shall meet and be maintained in accordance
6 with the state health department guidelines.
7 They haven't done that. They have a
8 violation letter, 10-22-96. And also, this has to be
9 approved by Weld County Department of Public Health.
10 I don't believe that's been approved.
11 So not only are they in violation here of
12 CAFO regs, but they're in violation of your own zoning
13 ordinances.
14 Now, just briefly to show you what I -- I
15 used an approved procedure by the SES to calculate what
16 the peak runoff is. Real briefly that's how I came up
17 with the 19 acre-feet. So this isn't something that I
18 fabricated; I did do some work.
19 MR. MORRISON: Is that -- has that already
20 been submitted?
21 MR. LEAF: I have not seen this. The only
22 thing I 've seen is statements in the manure management
23 plan that Terracon provided. But it did not show any
24 quantification of site runoff.
25 MR. MORRISON: No. I mean, have you
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1 submitted this?
2 MR. LEAF: No, this has not been submitted.
3 MR. MORRISON: There's also the question
4 of -- the board indicated written materials and reports
5 were supposed to be exchanged a week ago.
6 MR. CHILSON: We haven't received -- we have
7 received nothing.
8 MR. LEAF: I didn't prepare any written
9 report. These I've prepared all the way up to the point
10 of today. I've been working on them for the past
11 two months, but I have not prepared any written report.
12 MR. CHILSON: I would submit documents
13 constitute a report if he's using them in his
14 presentation. My understanding was we would be furnished
15 with what was going to be put in -- in writing to
16 substantiate or reflect his testimony.
17 MR. MORRISON: Do you want a response?
18 CHAIR KIRKMEYER: Yeah, I would like a
19 response.
20 MR. HELLERICH: My recollection was that at
21 the last meeting, we were advised -- we asked -- it was
22 asked, first of all, that he prepare a written report,
23 which he has not done. Still has not done. We were
24 instructed, if he provides -- if he is to prepare a
25 written report, he has to provide that to you and to
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1 opposing counsel .
2 He has not provided that because he has
3 not prepared a written report. This is not a written
4 report.
5 CHAIR KIRKMEYER: Mr. Morrison.
6 MR. MORRISON: Well , I think the board needs
7 to see what written materials he has and you need to make
8 a decision on that. I think the idea was to facilitate
9 the process so that the applicant would have a chance to
10 review and be prepared to respond.
11 CHAIR KIRKMEYER: Well, I think it was also
12 for -- on behalf of the board.
13 MR. MORRISON: Well , as well as the state
14 health department and the county health department. I
15 mean -- you know, you can do this several ways.
16 One, you can go ahead and have Mr. Leaf's
17 testimony without ruling on whether it's appropriate to
18 have this written material . And then make a decision
19 once you've seen what he -- what he submits.
20 You can conclude if it's outside the purpose
21 of your prior ruling, that it's not truly a report, it's
22 just whatever he does submit.
23 But I -- I think the timing of it is the
24 issue. The opportunity for the applicant and the staff
25 to review this material and be able to respond to the
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1 board to assist you in your decision making.
2 CHAIR KIRKMEYER: Does the board have any
3 comments?
4 MR. HALL: I guess the only comment I would
5 make is, in the event that we would have maintained the
6 hearing schedule as it was in November, we would have
7 probably still been hearing all this information
8 firsthand as it was.
9 I would personally entertain any kind of a
10 request for continuance in the event that there's
11 something that the applicant needs more time to review
12 and prepare a response.
13 But I don't know that we need to be that --
14 that much of a stickler on what's written and what's not
15 written and what's given out today. Because there's
16 all -- the whole possibility could have been that we
17 would have been sitting here listening to all that as it
18 first came up.
19 MR. MORRISON: We have not -- you have not
20 seen what Mr. Leaf has in written form, so -- I mean it
21 may be that you can't make a decision on that until
22 you've seen what he submits.
23 MR. CHILSON: Madam Chairman, may I --
24 MS. HARBERT: Well, he certainly submitted a
25 lot today.
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1 CHAIR KIRKMEYER: Actually, all that he's
2 submitted right -- so far are these, and he's been using
3 these other exhibits so -- Mr. Chilson, do you have a
4 comment?
5 MR. CHILSON: Yes. This is John Chilson on
6 behalf of the applicant.
7 The problem that I have is that the
8 information that is being submitted to you in documentary
9 form is information that comes within the purview of the
10 functions of your health department and the state. Now,
11 the opponents are acting as sort of a super health
12 department here.
13 The problem is that your own health
14 department people have not had the opportunity to
15 receive and evaluate this information in making their
16 recommendation to you.
17 And I would assume that their recommendation
18 is the critical one because it's the one that's going to
19 tell you whether or not the issues they are raising are
20 within the issues that the health department has dealt
21 with and will deal with in this facility.
22 And the problem that I have is how does your
23 health department take in this information when it's
24 presented in this form with nothing having been submitted
25 in writing?
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1 We don't really care. We're going to have to
2 comply with the health department regulations, state and
3 county.
4 What is confusing here is you are not giving
5 your health department the benefit of having this
6 information in advance of their presenting it, so that
7 they can respond to it here.
8 And that's the problem I see in putting it in
9 this kind of fashion without having provided it to your
10 health department to see if they've already covered it.
11 I believe they have. But there's no way for them to know
12 or us to know.
13 MR. MORRISON: Mr. Chilson, do you have any
14 problem with proceeding at this point and then having the
15 board decide whether any additional time is necessary
16 after Mr. Leaf's presentation?
17 MR. CHILSON: No. I don't have any
18 problem with him proceeding and putting this in. The
19 difficulty that I have is -- one of things I would like
20 to do is have the health department come back and
21 respond to this.
22 And have it be in a fashion that they have
23 the information and can make an informed and legitimate
24 response to you.
25 CHAIR KIRKMEYER: Well , so far they have only
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1 used exhibits that they've already presented to us
2 with -- except for these maps, CC --
3 MR. MORRISON: Right. And the one -- and the
4 one overhead with the calculations that Mr. Leaf just
5 used, which is what raised the issue --
- 6 MR. CHILSON: That's right. That's what
7 raises the issue.
8 CHAIR KIRKMEYER: And I think Commissioner
9 Hall had a very good point. Mr. Leaf could have
10 introduced that stuff back in November and the health
11 department would have had to observe at that point and
12 make a recommendation or make any comments to the board,
13 ask them any questions, so we're still basically in the
14 same situation so . . .
15 MR. HALL: But I also would like to see the
16 health department's response to all the evidence that's
17 been presented and give a recommendation or opinion upon
18 its accuracy.
19 MR. BAXTER: Well , I agree. And I think --
20 are there copies of things going to be passed on through
21 so the health department will get a chance to look at
22 this before the end of this hearing?
23 CHAIR KIRKMEYER: We have the ability to
24 recess and give the health department adequate time to
25 look at the new information especially if the board has
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1 lots of questions of the health department.
2 Mr. Leaf, if you would proceed, please.
3 MR. HELLERICH: Do you want that marked as an
4 exhibit, then?
5 CHAIR KIRKMEYER: Yes.
6 MR. LEAF: You can have all these marked,
7 actually.
8 MR. HELLERICH: Do you want each one marked
9 individually, would that be --
10 MR. LEAF: Here. Here. I 'll just hand them
11 to you.
12 MR. MORRISON: All right. Yeah, if you'll do
13 that as you conclude.
14 MR. LEAF: At lunch I can make copies of
15 this and put it together in a packet for one exhibit, if
16 you'd like.
17 MR. MORRISON: I would prefer it to be in one
18 exhibit, if you can refer to it by page as you go.
19 MR. LEAF: Now, getting back to my train of
20 thought here.
21 MR. CHILSON: I gather that means we're going
22 to be here until lunch.
23 MR. LEAF: Where I left off was the lack of
24 a comprehensive site drainage plan. And I guess
25 what started the conversation is some of the work that
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1 I've done.
2 I have performed some analysis to show the
3 conceptual size of a drainage channel that I think should
4 be part of an application, the USR.
5 And I might note that -- I know that a lot
6 of USRs have come to you with people that are in
7 violation and -- but I think the distinguishing point in
8 here -- is here, this isn't just a gentleman that comes
9 to you because he's outgrown his operation. He has
10 numerous violations to date. He has neglected doing
11 anything in addressing those violations.
12 And if this was just a USR application, a guy
13 that outgrew his size and he came to you, he wasn't in
14 violation, then, I think, that's it appropriate to
15 condition this.
16 I don't think it's appropriate to condition
17 this particular application because he has been in
18 violation. And, in fact, he should be before you now in
19 compliance with the CAFO regs. And that includes design
20 components that include comprehensive site drainage plans
21 down to plans and specs.
22 Now, that's not to say in every USR that
23 needs to be required, but every USR that comes before you
24 that is under the purview of CAFO, it should be required
25 because the state requires it.
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1 So this gives you a flavor -- we're talking a
2 significant ditch. It's the size, roughly, of the Smith
3 lateral .
4 Now, they've talked briefly about a pipe that
5 will either go over or under. And how that will be
6 connected to draining water and get it up into the
7 lagoon, as I 've showed previously. Whether it's a
8 pressure pipe or just a regular conduit.
9 If it was an unpressured culvert, it would
10 require a 36-inch culvert to go under or over a ditch
11 that's only 2-1/2 to 3 feet deep now. So this is
12 significant. This isn't a 10-inch or a 12-inch pipe,
13 this is a significant pipe.
14 That's the size of the culvert you're going
15 to need to convey that 19 cfs peak discharge. And that
16 has not been considered in this application.
17 Now, as I've mentioned, the CAFO regs require
18 that the manure have adequate containment of storm water
19 and be set on an impervious pad.
20 The requirements in CAFO are that they needed
21 a 1 times 10 to the 6 centimeters per -- minus 6
22 centimeters per second permeability rate.
23 The USR does not even address that. It
24 didn't address it in December of 1993 , it didn't address
25 it in November of 1996, and I'll be curious if it
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1 addresses it after I get done here today.
2 Regulations require no discharge of process
3 wastewater. I have evidence and I' ll present a water
4 budget that shows that there has to be discharge in this
5 facility.
6 And then if there was seepage, it would
7 require a groundwater discharge permit through the
8 Water Quality Control Commission. And neither a site
9 application or a permit has been requested or --
10 or underway.
11 Now, this is from the applicant's
12 consultant. It shows where they drilled -- where they
13 did soil bores. However, I questioned the lagoon --
14 these actually were done back in -- prior to construction
15 of the lagoon in this area.
16 Again, they don't make it clear as, were they
17 done there prior to their construction? I don't believe
18 they were. And they have never made that clear. I think
19 they're trying to -- to hide something.
20 The other thing is where they were going to
21 contain their manure. They don't show any -- any soil
22 work to see if it -- it can be compacted to meet
23 permeability standards of CAFO and also your zoning
24 ordinance.
25 Now, what does all this mean as far as the
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1 health of the environment and the public welfare in this
2 community?
3 What I want to present to you now is the
4 nitrate production that they've talked about. And this
5 is using applicant's information. However, I might point
6 out, that there's been some confusion as to -- it always
7 makes me nervous when you smile.
8 CHAIR KIRKMEYER: I was just wondering if you
9 were going to get to the 15 tons per day.
10 MR. LEAF: Yeah, I might get to that. But
11 those are big cows.
12 CHAIR KIRKMEYER: Big, big cows.
13 MR. LEAF: There's been some confusion. And
14 when I read through the plan, I 'm not sure if there's
15 145 acres, 200 acres, 165 acres, as far as actual land
16 production that's in irrigable, cultivated land.
17 From everything I've determined, from SES
18 photos, I come up with -- to date, there's 165 acres of
19 cultivated, irrigated.
20 Now, they have claimed that the land above
21 the ditch here is actually cropland. You'll see it here
22 on this exhibit. In fact, it's -- it's where the manure
23 storage -- and if you refer to the map, one of these
24 aerial photos, Exhibit CC-3 , they claim that all this is
25 cropland or a good share of it.
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1 In fact, it might be wheat, but it is not a
2 cultivated, irrigated -- there's not a water supply up
3 there. And I think that's been misleading.
4 When they talk about how they're going to
5 apply this you have to keep in mind that, when you apply
6 nitrogen, it not only depends on how much land you have
7 but what kind of production. And irrigated wheat does
8 not require the same tonnage of nitrogen that cultivated
9 cropland would.
10 From what I 've come up with, they have
11 about -- I'm sorry, I said 165 . I meant 145. To date
12 they have about 145 acres of irrigated, cultivated
13 cropland that can be applied -- that this manure product
14 can be applied.
15 The annual nutrient requirements for corn on
16 that 145 acres is about 20, 000 pounds. Again, to grow
17 150 bushel per acre corn -- actually, the county averages
18 about 145 . I believe the applicant was using 180 to 200
19 bushel corn.
20 I do a lot of work outside of my consulting
21 with the district and 200 acre corn by far and large in
22 this county is not the norm, as you know by county
23 averages, so I kind of throttled that back.
24 From the wastewater effluent, based on
25 applicant's numbers, I came up with a -- and also the
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1 quality of the effluent, I came up with -- that lagoon
2 will produce about 17, 000 pounds of effluent -- or of
3 nitrogen.
4 And if you note what's required, 19 versus
5 17 , virtually all of that will came from that -- that
6 lagoon. In fact, applicant actually acknowledges that.
7 However, as you'll see later, applicant does
8 not show how that water can be applied to all 145 or 165
9 or how many acres they're claiming. To date, the only
10 number of acres that that lagoon water has been applied
11 to is 13 acres. A far cry from 145.
12 And a solid manure produces about 166 , 000
13 pounds. So virtually, all of the solid product will have
14 to be hauled off, or vice versa, some of it applied, the
15 remainder hauled off, and all of the wastewater effluent
16 hauled off.
17 As I mentioned, applicant proposes to apply
18 the effluent to the 145 acres. Again, this application
19 doesn't show how that's going to be done. They say,
20 We'll put up a center pivot.
21 You know, as well as I know, center pivots
22 work in circles. Or you can get pivots that work in --
23 provide corners, but in my opinion, there's no way
24 that you can physically irrigate all 145 acres with a
25 center pivot. It's going to require moving water up and
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1 doing some flood irrigation. And that simply has not
2 been addressed.
3 It's not, I don't believe, adequate, when you
4 are in violation of the CAFO regs, to come before you and
5 say, We'll do it with center pivot. Trust us.
6 I would like to see it. I can't evaluate
7 whether it can be done or not. It can be done, but it
8 might be very costly.
9 Basically, from the 164 pounds, 1, 000 pounds
10 of nitrogen that is going to be excess that needs to
11 removed off-site, applicant is going to be required to
12 find 1216 acres to apply that to. And that, of course,
13 depends on crop.
14 But, you know, it's -- and I might note to
15 date, all that land -- all that manure has been applied
16 on that 145 acres. Virtually, all of it, from my
17 understanding.
18 In fact, applicant says they're going to
19 truck that off. I have knowledge that they've actually
20 applied some of that solid manure on the corn crop just
21 to the north of the lagoon and milk parlor.
22 So they -- they aren't following through with
23 what they say they're going to do here. They say they're
24 not going to apply any of it; they're going to apply
25 their wastewater. They're not doing that even today and
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1 that's alarming.
2 And what that means is, if applicant is
3 allowed to continue to apply that amount of loading of
4 nitrate on that 145 acres, we're going to see some
5 impacts on the aquifer.
6 In fact, there is an aquifer system there.
7 This has been classified by the Water Quality Control
8 Commission as a designated groundwater aquifer. It's
9 subject to the classification and standards of
10 groundwater.
11 And, basically, this exhibit here, shows the
12 applicant's proposed facilities right here, or existing
13 facility, the boundaries of the alluvial aquifer, as
14 mapped by the USGS, are right in here. And there's a
15 number of irrigation wells right in here, as well as
16 domestic supplies.
17 You can see they are upstream, grading the
18 groundwater in this direction. They are upstream of that
19 aquifer that has been classified.
20 And by the statute of authority of the
21 Water Quality Control Commission, nobody can permit any
22 land use that will either increase the quality -- or
23 decrease the quality of that aquifer or degrade it.
24 And that's by statute and, I believe,
25 Mr. Hellerich will talk about that later.
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1 In that particular aquifer, I've quantified
2 there's about 2700 acre-feet of limited aquifer. It's
3 about -- saturated thickness of about 30 feet. And there
4 is an existing drain tile that runs right under the
5 proposed expansion of the lots.
6 And you can see this in Exhibit CC-3 . This
7 dashed line -- or I 'm sorry, these blue lines here. It
8 collects groundwater from under Hirsch's farm and it
9 outlets to a point on the County Road here and,
10 ultimately, that ends up in the aquifer.
11 So while the applicant's farm and facilities
12 does not overlie an aquifer directly, it drains into an
13 aquifer. And that has not been addressed by the
14 applicant.
15 Now, I did some work to see what would
16 happen if all of this product would be applied to this
17 145 acres, as it has been virtually. And actually, it's
18 fairly grim.
19 I 've done a lot of work in the region,
20 Gilcrest, La Salle, working with a lot of producers in
21 that area, with some big feeders, about the concern of
22 nitrate contamination from agriculture. In particular,
23 manure application. And we have some interesting
24 results.
25 And that same type of work I applied here.
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1 Basically, knowing how much water is in that aquifer,
2 knowing how much they're applying, breaking that out --
3 down to pounds per acre, nitrate-nitrogen, organic
4 nitrogen, and ammonia, you can see it's significant.
5 566 pounds of nitrate-nitrogen. 283 pounds
6 for both organic and ammonia nitrogen. That's every
7 year. That includes mineralization.
8 What happens if that 566 pounds per acre is
9 loaded into that aquifer?
10 That's what I attempt to show here. This
11 is a seven-year scenario. The nitrate loading is
12 represented in -- in -- if all that product were applied
13 to that 165 acres, the nitrate received is a factor
14 thereof. And that factor, I calculated as a 12-to-1
15 reduction, based on samples taken from the drain tiles
16 that were relieved from the farm and also samples of the
17 aquifer that we collected.
18 And using work that I 've done throughout
19 the Gilcrest-La Salle area, we know that there's a
20 continuation of nitrates as it moves down through the
21 vadose zone. And I 've taken that into account. It looks
22 like, to me, it's about a 12-to-1 reduction.
23 Well, whether it's 12 to 1, 50 to 1, or 1
24 to 1, it's still going to get down there if this is
25 allowed to continue.
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1 But my work shows that after seven years,
2 you can see -- they call it the quality of the aquifer
3 right now is about 3 . 1 milligrams per liter of
4 nitrate-nitrogen. After seven years of that allowed
5 loading, you're going to be in excess of the standards.
6 And, again, you do not have the authority
7 to permit that to happen under the statutes of the
8 Water Quality Control Act.
9 Now, I 'd like to turn your attention to the
10 wastewater lagoon. I looked at several things.
11 The first thing I looked at -- if you recall on
12 November 26th the applicant came and informed you that
13 we -- based on our geotech work before the lagoon was put
14 in, based on some in situ or -- or going out there and
15 sampling, doing soil bores using Shelby tubes, actually
16 doing infield compaction and taking it back to the lab
17 and looking at compaction permeability, that they -- they
18 notified you that they -- out of eight of the samples,
19 they failed three of them.
20 They didn't meet that CAFO standard,
21 either for compaction nor for permeability for that
22 type of soil.
23 The other thing that -- that I 've had a hard
24 time with is, while the applicant's consultant said you
25 need to do this, there were no plans and specs, there
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1 were no quality control out in the field -- and, in fact,
2 CAFO regs say that you have to demonstrate to the state
3 that you meet these standards and they didn't.
4 And that's exactly why they got a violation
5 letter that Mr. Hellerich presented to you already. So
6 they haven't done that.
7 And, you know, I have a hard time -- somebody
8 coming up and saying, Well , we didn't do what we were
9 supposed to do, but we went out and sampled it. And we
10 found that, yeah, we -- we -- eight of the -- or five of
11 the eight samples passed; three didn't.
12 Where were they sampled? And the applicant
13 didn't provide us information. We got it about two days
14 before the previous hearing. They never did provide
15 us information exactly where they collected or did
16 those tests.
17 But from where I could -- looking at their
18 work, the lagoon site, they sampled all the in situ
19 samples around the perimeter of the lagoon. And why --
20 there's -- there's water in the lagoon. You can't get a
21 Giddings rig out there to get a Shelby tube in. It can't
22 be done. They didn't dewater it.
23 They do say that one was done in the middle
24 of the lagoon. I don't see how that was done. I 'd like
25 to have that explained to me if it was. I think it's
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1 misleading and deceptive.
2 I believe they came out here where the water
3 was down and they -- they got out as far as they could
4 and they did a sample. The problem is they're asking you
5 to take that on face value that's good enough.
6 Well, I suspect that, because of compaction
7 of berms, they're going to get a higher compaction ratio
8 then they are from scraping the bottom out of the lagoon
9 with paddle wheel scrapers and rubber tires.
10 In fact -- this has already been presented?
11 Okay.
12 This is Exhibit O. This shows construction
13 of the existing lagoon. And you can see that -- they
14 were saturated conditions where they scraped and where
15 they ran their berms. But this isn't indicative of
16 quality control to me that a specified compaction level
17 of 95 percent proctor -- it just isn't there.
18 In fact, applicant, through their --
19 through their own testing from their last in situ
20 samples, presented this. What this is is a density
21 versus water content.
22 And what engineers and geotechnical people
23 use this information for is to know what's the optimum
24 moisture of that sample to where I can get that density
25 I need.
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1 And you can see their optimum moisture is
2 about 13 percent, 13-1/2 percent. That's obviously not
3 indicative of 13-1/2 percent. There was no quality
4 control out here to ensure that they were meeting that --
5 that optimum density.
6 In fact, I submit to you, I don't think
7 they could have under those conditions. They were
8 supersaturated.
9 MR. BAXTER: I have a question on that.
10 CHAIR KIRKMEYER: Sure.
11 MR. BAXTER: We saw these pictures in a
12 former hearing also. And I think the question was
13 raised, do we know -- can we have someone stipulate to
14 when these were taken; that they were actually taken
15 during construction?
16 MR. LEAF: Yeah, we -- I believe we
17 covered that, but I believe that Ken Lind took them
18 during construction.
19 In fact, I understand that during
20 construction -- if you read the work that was done by
21 Terracon in the manure management, they talk about how --
22 when they were trying to do -- run the scrapers where
23 they purportedly wanted to put the lagoon, they kept
24 sinking. The groundwater level was up. And also they
25 had some precipitation. So they moved over to this
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1 spot. And they had some heavy precipitation, so . . .
2 As far as the lagoon itself, it's been
3 constructed. The whole 32 acre-feet. From applicant's
4 own numbers, their average process wastewater volume
5 without storm runoff is 16-1/2 acre-feet. On the
6 surface, it appears that it meets the conditions of
7 CAFO regs.
8 They also talk about evaporation. The one
9 concern that I've seen from the very beginning -- and
10 I've talked to Victor Sainz ; I've talked to the Water
11 Quality Control Commission -- is that construction of
12 these types of facilities really constitute lagoons.
13 And lagoons, if they're not constructed
14 right, tend to turn over and start stinking. And while
15 that's not a condition of the CAFO reg, it certainly is a
16 part of your zoning ordinance where you have to make
17 sure that you don't have any odor problems and that type
18 of thing.
19 For a stabilization lagoon, being no
20 aeration, you typically need to have a depth of 5 foot or
21 greater to maintain and keep from turning that over and
22 causing odor problems. They don't have that.
23 So in summary, I guess, as a -- as a lagoon,
24 it -- it fails. As a retention structure, it somewhat
25 achieves its objective, but -- however, it doesn't meet
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1 the lining criteria. And I believe that it seeps. And
2 I'll show you in a minute.
3 And also it's -- it's not compatible with the
4 existing area. There's been houses at least 30, 40
5 years, and the nearest one is 400 feet.
6 And this is Exhibit DD. And you can see this
7 is looking to the west. The front range is here. I
8 believe this is on Weld County Road 23 . And this is
9 looking at a residence. The distance from here to that
10 residence is 400 feet.
11 And also, as I'll show you, it's not -- the
12 lagoon is not functioning as a no-discharge facility.
13 In fact, evidence presented by applicant and by
14 Mr. Hellerich and Mr. Lind shows contrary to the fact
15 that it is no discharge. They show discharge running off
16 of the facility. And they actually have violation
17 letters to that effect.
18 Now, one of the -- the conditions in the CAFO
19 regs is that, if you are under the purview of CAFO,
20 confined animal feeding, that you need to do a monthly
21 water balance. And that's supposed to demonstrate
22 effluent, rainfall , snowfall, evaporation, and
23 application, rain -- and -- and be prepared to show that
24 you have a no-discharge facility.
25 That, in essence, hasn't been done. There's
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1 been some, well, we have this much water coming in, this
2 much evaporation, this much stored. That's not a water
3 budget.
4 A water budget needs to run over time to
5 see how that facility reacts to precipitation events;
6 how you propose to operate it. And that hasn't been
7 done. There's been some very general statements said to
8 that fact.
9 Now, I have, based on what the applicant
10 presented, used two -- did two different methods -- boy,
11 you can't see this too well .
12 Based on applicant's information of number of
13 adult cows, the process wastewater that Terracon -- and I
14 applaud them on their efforts to be more efficient with
15 their water. Their reuse is impressive.
16 Using that information, I come up with --
17 for that number of cows over this actual period, that
18 they would use or discharge about 19-1/2 , 19 acre-feet
19 into that lagoon. On the face that seems fine.
20 19 acre-feet into a lagoon with 32 acre-feet, we're
21 all right.
22 Looking at evaporation, in the scheme of
23 things, it's not very significant. It's about 2 feet --
24 2 acre-feet. Or I'm sorry, it's about 1 acre-foot for
25 4 acres of surface.
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1 Precipitation. And moving over here, if
2 you start looking at -- what I wanted to do was show, if
3 that -- if it is a no-discharge facility, what happens
4 to storage in that -- in that lagoon over this period
5 of time?
6 This is actual data precipitation and
7 evaporation data from Fort Collins -- Northern
8 Conservancy Water District. The irrigation is based on
9 the number of acres we know was irrigated, 3 acres -- or
10 13 acres, I'm sorry.
11 And I had to do an estimate of -- we know
12 they pumped it. We knew how long they pumped it. I had
13 to estimate with a criscollic pump that they had out
14 there what was the flow rate. I came up with 500 . I
15 could have used 1, 000. Any way you cut it, I still show
16 that they had a discharge.
17 And what it shows is that the storage in that
18 lagoon totaled 43 acre-feet. And they started pumping it
19 in July because they were full . They had to do something
20 with it. It's no coincidence that they pumped it.
21 Based on that, the estimated seepage, he
22 basically would have pumped about 500 -- or 5 acre-feet.
23 Out of the total 43 that would have been full , I come up
24 with that he had to seep away 30 acre-feet.
25 Now, that's not a no-discharge facility. He
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1 had seepage.
2 And I looked at that, and I said, Well , maybe
3 I better see what happens if it is not leaking. What
4 does that mean for discharge? Because I know there was
5 discharge from the surface from runoff.
6 Same thing. Same set of criteria. Although
7 I based -- if he were to operate this and -- and put it
8 on the proper requirements of the 13 acres that he
9 physically can apply to today, he would need to require
10 that -- to apply 13 acre-feet.
11 The end-of-month storage was set not to
12 exceed 31 . Meaning he had to pump or discharge. The
13 crop use, 13 . The excess that ran off was 20 acre-feet.
14 So he -- either way you look at it, he seeped 30
15 acre-feet into the ground or he ran off 20 acre-feet.
16 And we have photos here and the exhibits that
17 show there was runoff. In fact, you've cited him for
18 violations of running across the county road. It's not a
19 no-discharge facility any way you cut it.
20 In summary, I'll say it again, I've had the
21 opportunity to represent applicants on the other side.
22 It was approved with conditions.
23 I think the difference here is you've got an
24 existing facility in violation. The violation of CAFO
25 that the state has acknowledged. They've asked him on
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1 several occasions for immediate compliance. And that
2 hasn't happened.
3 This application cannot be permitted on
4 conditions.
5 I think this warrants you telling the
6 applicant, You got to go out and you've got to do these
7 things and you got to come back in when you're ready
8 to demonstrate on the ground that you've met these
9 requirements.
10 So with that, if you -- if I have any
11 questions.
12 CHAIR KIRKMEYER: Questions?
13 MR. HALL: Madam Chair, if -- you've made the
14 statement about a letter of violation. Can you reference
15 that back to me again, so I can see --
16 MR. LEAF: Yeah.
17 MR. HELLERICH: That's the ones I just handed
18 out, December 2nd --
19 CHAIR KIRKMEYER: That's the December 2nd?
20 MR. LEAF: There's that one. And there's
21 also the October 22nd of '96, and that's in your blue
22 packet.
23 CHAIR KIRKMEYER: 32? Tab No. 32?
24 MR. LEAF: Yes.
25 MR. HELLERICH: There's August 5th of '95,
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1 as well .
2 MR. MORRISON: That's Exhibit Z , but it's
3 also contained in the staff comments that were
4 distributed.
5 MR. HELLERICH: Also, if you take a look at
6 Tab 24 , that's August 31st of '95.
7 (Pause)
8 CHAIR KIRKMEYER: Mr. Morrison, I have a
9 question for you.
10 Whose responsibility is it to enforce the
11 CAFO regs? Is that the Weld County Health Department's
12 responsibility?
13 MR. MORRISON: The responsibility is the
14 state department of health's and environment. We are
15 the -- we assist them and -- but the ultimate
16 responsibility rests with the state. Our -- the local
17 health department does work with operators. When there
18 are, ultimately, problems -- major problems, the state
19 assumes the enforcement responsibility.
20 MS. HARBERT: Do you have any knowledge of
21 how the state follows up? Or do I need to save that
22 question for someone else --
23 MR. MORRISON: Mr. Sainz is here --
24 MS. HARBERT: In the October 22nd letter,
25 asks them to correct it immediately. And I just wondered
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1 if the state did follow up on that, or if they just write
2 letters and then don't follow up or --
3 CHAIR KIRKMEYER: Well, maybe we can have
4 that person come up first. But if any -- I'm sorry,
5 Mr. Leaf, you sat down and we weren't done asking
6 questions.
7 If anyone has any questions for Mr. Leaf,
8 maybe we can finish that part of the public hearing.
9 Do any of you have any more questions for Mr. Leaf?
10 Okay. So --
11 MR. MORRISON: Madam Chair, I have two
12 questions.
13 CHAIR KIRKMEYER: Okay.
14 MR. MORRISON: One, I believe, you had one
15 other -- your first overhead, I don't believe I got. the
16 one that raised the whole question.
17 And the second one, I believe you made the
18 statement that the Water Quality Control Act prohibited a
19 land use decision and would impact groundwater. Can you
20 give me a citation to that.
21 MR. LEAF: I can let Mr. Hellerich -- defer
22 that to him.
23 CHAIR KIRKMEYER: Okay. Just a second. I
24 have a couple of questions for you. Okay. Have you
25 seen -- Trevor, from the health department, his memo
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1 that -- addressed to the Weld County Board of
2 Commissioners. We received it; today's date is
3 December 12th.
4 MR. LEAF: Yes, I have.
5 CHAIR KIRKMEYER: Okay. And would you agree
6 with this statement that -- in that first paragraph he
7 says it's important to note that the state is requesting
8 a plan of correction and not requiring a facility to shut
9 down. Would you agree with that statement?
10 I mean, I haven't had the opportunity to read
11 all the letters dated December 2nd from the state health
12 department, but I guess I'd like to know if that's an
13 accurate representation in your mind.
14 MR. LEAF: If I could see both the letters.
15 CHAIR KIRKMEYER: And then my other question
16 to you is -- oh, sorry.
17 MR. LEAF: I 'm sorry, you -- you can ask the
18 next question while I 'm getting my ducks in a row here.
19 CHAIR KIRKMEYER: Okay. Or maybe Mr. Hellerich
20 or Mr. Lind can look at that letter, also. I 'll just ask
21 them that question.
22 My other question to you is you stated -- you
23 talked a couple of different times about violations and
24 USRs and conditions, is it possible, though, with this
25 site for Mr. Hirsch, or the applicant, to -- to meet all
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1 of the recommendations from the planning commission and
2 this staff?
3 I guess that would require that you would
4 have looked at the Conditions 1 through 4 and the
5 development standards. If they've met those
6 conditions -- I mean, would -- would it be possible for
7 them to build this site?
8 MR. LEAF: Sure.
9 CHAIR KIRKMEYER: On this site -- I mean, the
10 topography and the gradient and everything that you
11 talked about.
12 MR. LEAF: Yeah. However, if you've gathered
13 from my presentation, even the conditions aren't
14 complete. They're not the same as what was required in
15 other USRs I've had the opportunity to be involved in.
16 In particular, the manure storage. That's been glossed
17 over. That needs to be addressed.
18 CHAIR KIRKMEYER: Well , actually -- so when
19 you say they're not complete -- Development Standard
20 No. 7 requires the facility maintain compliance with the
21 CAFO regs and Section 47 , which you referenced --
22 MR. LEAF: Right.
23 CHAIR KIRKMEYER: -- of the Weld County
24 Building Ordinance.
25 And I did notice your corrected on -- under
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1 Condition No. 2 , prior to recording the plat, we only
2 have them demonstrate compliance with CAFO regs.
3 If they were required, prior to recording the
4 plant, to -- plat, to be -- to demonstrate compliance
5 with Section 47 of the Weld County Zoning Ordinance,
6 wouldn't that pretty much cover your concern?
7 Because then that would require the part
8 about the impervious pad for the manure stockpile and the
9 testing and the -- you know, the no containment, the
10 no-discharge facility, everything that you mentioned in
11 your report?
12 MR. LEAF: First and foremost -- and you --
13 you've keyed on it, when you asked Mr. Morrison, the
14 county doesn't have the authority to require compliance
15 with CAFO -- or they can require it, but they don't
16 have the authority to enforce it. Only the state can
17 do that.
18 And until the state enforces that and
19 they demonstrate to the state, should -- should you
20 allow a permit?
21 Because if you allow -- if you condition
22 this, you're, in effect, saying, if you're in violation,
23 we' ll go ahead and permit you to go ahead and keep
24 violating and you work it out with the state. I don't
25 think that's the message that needs to be sent to the --
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1 in my opinion, to the -- to the constituents of
2 Weld County.
3 As far as these conditions -- while the
4 conditions present what needs to be done, the applicant's
5 proposal willfully and accurately doesn't address
6 everything, as I pointed out.
7 Now, I'm sure they're going to come back and
8 they're going to say, We can do that.
9 And I think they need to have the opportunity
10 to do that. But I don't think because the applicant has
11 presented you with a plan that doesn't meet all the
12 conditions -- and the health department and the planning
13 staff hasn't caught the fact that it doesn't meet all the
14 conditions in their plan.
15 You know, I find it curious that since
16 December '93 , the -- the plan has been in front of the
17 health -- the planning department. They've recommended
18 it to go forward. In November 26th, they recommended it
19 to go forward. And then we see this memo December llth,
20 that really has some major implications.
21 Why weren't these addressed? Nothing
22 substantially has changed from the applicant.
23 I submit to you, I don't think the county
24 staff has the expertise to evaluate these plans like
25 this. It requires a hydrologist, an engineer, a
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1 geotechnical person; they don't have that. So they
2 can't be expected to catch all of that.
3 So while you have conditions here -- and then
4 the other side of the coin is, he's in violation if he's
5 flagrantly disregarded the violations. He hasn't made
6 any progress to address the violations he had.
7 That condition alone is why you should look
8 at this differently and say, You know, if you came in
9 here and you -- you had no violations, we can -- we can
10 trust you to do it on conditions. He hasn't demonstrated
11 that he can do that.
12 So I think you need to ask him to come back
13 and say, When you do this and you can show us, we'll
14 permit you.
15 That's not saying he can't ever do it.
16 You're requiring of it -- of it in conditions, but once
17 you go on conditions, the public doesn't have an
18 opportunity to look at it. It's all dependent on the
19 shoulders of the health department and the planning
20 staff. And they don't have the expertise to
21 evaluate this.
22 I 've talked to Trevor. He doesn't understand
23 the hydrology of the things that I 've been talking
24 about. I don't understand all the components. It's a
25 very complex plan.
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1 So I guess that's a long answer to what
2 you --
3 CHAIR KIRKMEYER: I was just merely going to
4 point out that Condition No. 2 is prior to recording the
5 plat. So even if it was conditioned, they wouldn't be
6 allowed to move forward until they were able to record
7 the plat. They can't record the plat until they meet
8 that 2-A, B, and C, which would require a demonstration
9 of compliance with CAFO.
10 And if it's added in there with Section 47 of
11 the Weld County Zoning Ordinance -- and maybe Trevor
12 doesn't have the expertise to and -- or maybe he does,
13 I'm not sure -- has the expertise to make sure it
14 demonstrates compliance with confined animal feeding
15 operations, I would assume that the -- he would be
16 working with the state health department on that as
17 reflected in his memo to us where he's already been
18 working with the state health department.
19 My question -- or, I guess, one of my
20 statements is then that, if he doesn't get the USR
21 permit, he would still be allowed to have 960 animals
22 there, which is only about 70 off from what he has there
23 currently. And then you're right, we wouldn't have
24 anything that we could enforce.
25 MR. LEAF: Uh-huh.
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1 CHAIR KIRKMEYER: But I believe that we can
2 enforce our own conditions. And if we say that he has to
3 demonstrate compliance with confined animal feedlot
4 regulations, that we can enforce that and not allow
5 him to get a building permit because he can't record
6 his plat.
7 MR. LEAF: In that process --
8 CHAIR KIRKMEYER: Which I know you're very
9 familiar with.
10 MR. LEAF: Yeah. Number one, he's in
11 violation now. And in a process with conditions, it --
12 once it goes to conditions -- I know I 'm involved with
13 one -- the public doesn't get the opportunity really to
14 come back and tell you, You need to reconsider this.
15 How -- how can we assure that we can come
16 back to you? Or do you actually look at these and say,
17 Yeah? Or is it just, okay, conditions are done,
18 everything is in the file, it's done?
19 And I think that's a concern that -- that who
20 I represent, that's -- that's a concern they have. And
21 I think it's a legitimate concern just because of the
22 track record.
23 So I guess -- to answer your questions,
24 if everything is done right, yes, he can be in
25 compliance. Anything can be done. But I think this --
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1 this particular case warrants that he needs to
2 demonstrate that.
3 And if he wants to take -- you know, the
4 other thing that has never been talked about is how long
5 does he get to get into compliance?
6 He says he's not going to expand for
7 ten years. Does that mean that he can continue to try to
8 do these conditions over the next ten years and still be
9 in violation of CAFO?
10 Now, the -- the state needs to enforce that.
11 But if you read in the basis and purpose of the state,
12 they say it's not our intent to -- to require immediate
13 compliance. But it is in our intent for somebody who is
14 cited under a violation to work towards compliance, and
15 that has not been demonstrated.
16 And you wanted -- you asked me about -- or
17 are you done? You have another question --
18 CHAIR KIRKMEYER: I -- you can finish
19 answering the first question I asked.
20 MR. LEAF: And -- and can you --
21 CHAIR KIRKMEYER: I asked you -- Trevor
22 requested that -- in his memo that the state has
23 requested a plan of correction and not requiring the
24 facility to shut down. I wanted to make sure that you
25 felt that it was an accurate representation from the
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1 letter from the state.
2 MR. LEAF: Yeah. Well, here's a letter from
3 Victor Sainz . I mean, it seems to me --
4 CHAIR KIRKMEYER: Which letter? Okay. Which
5 letter are you talking about?
6 MR. LEAF: This is the November 12th, is that
7 right, '96 letter? You may have this --
8 MR. HELLERICH: I think you have that --
9 MR. LEAF: -- from Mr. Lind.
10 Yeah, a copy --
11 MR. HELLERICH: Do you have a copy of that in
12 your files? It's dated November 12th, 1996.
13 CHAIR KIRKMEYER: No. We have one, the 24th,
14 from the state.
15 MR. CHILSON: I 'm totally lost what you're
16 talking about.
17 CHAIR KIRKMEYER: Can I have -- Okay. Trevor
18 was referring to the December 2nd letter. Have you
19 looked at that one?
20 MR. HELLERICH: I can give you a copy of this
21 letter then.
22 CHAIR KIRKMEYER: That's all right. Just in
23 the December 2nd letter.
24 MR. HELLERICH: Go ahead with the question.
25 CHAIR KIRKMEYER: My question was, in the
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1 December 2nd letter, in Trevor's memo, he -- he wrote
2 that the state is requesting a plan of correction and not
3 asking the facility to shut down.
4 Have you had an opportunity to read the
5 December 2nd letter, and would you say that it accurately
6 reflects what the state was saying?
7 MR. LEAF: Yeah, I've read it. But I would
8 like to see the letter. I still haven't seen the letter.
9 CHAIR KIRKMEYER: Okay. Here you go.
10 MR. LEAF: Can I just -- yeah.
11 MR. HELLERICH: If I understand your -- I 'll
12 let Forrest comment, too. If I understand your question,
13 do we agree with that position, I agree that that's
14 what's said on the surface of those letters, but that --
15 you need to get more background on this, too.
16 Trevor indicates he doesn't think that's --
17 he thinks that's real significant. But I submit to you
18 that is not significant because Victor doesn't have the
19 authority to do that.
20 And we will submit this letter of
21 November 12th, 1996, where Victor indicates that it's not
22 their policy. The division cannot summarily close down a
23 legitimate business operation. There are policies and
24 procedures that they have to follow through with and do a
25 hearing before they can. So he can't go out immediately
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1 and say, We're going to shut you down.
2 So, no, I wouldn't expect that the December
3 2nd letter to say, We're going to shut you down, because
4 he can't do that. At least that's what he's indicated
5 in -- in prior correspondence to us. And I 'm sure Victor
6 can answer that directly, as well .
7 No, I don't agree with Trevor's comment.
8 We don't agree with Trevor's comment. It's a significant
9 thing.
10 CHAIR KIRKMEYER: Okay. I don't have any
11 further questions. Any further questions of Mr. Leaf?
12 MR. BAXTER: Yes. I have a question that's a
13 portion of it and -- and I think it's a salient point,
14 that -- it may hinge partly on a legal issue, but I think
15 I need a quick answer from you from a practical
16 standpoint.
17 You talked at length about drainage from the
18 stored manure pile and the dry pens, the things like that
19 that need to drain to the lagoon, that they can't do
20 it -- or at least their proposal was to do it under an
21 existing ditch or over an existing ditch and -- and those
22 things.
23 I guess what I need to know -- and the legal
24 part of it is separate, whether they can do that or not,
25 but is there, physically, from what you've done here, any
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1 way to drain that anywhere else besides under that
2 ditch? Is that the only means to -- you said it hasn't
3 been done. Do you know of any -- is that the only way it
4 can be done?
5 MR. LEAF: Sure. There could be a -- there
6 could be a containment. And, in fact, if I designed it,
7 there would be a containment facility up above the ditch
8 to catch all the runoff up here, to keep it from getting
9 that far. It could be conveyed to the south in a
10 containment facility.
11 It can be directed the way they want to
12 direct it with another containment facility. Whether or
13 not it can, I don't know because I haven't seen surveys
14 to indicate that the grades are such that you can do
15 that with that size of structure; whether you can siphon
16 under it.
17 You could, obviously, put in a pump and a
18 lift station, but I think that's probably prohibited for
19 this type of operation.
20 So, yes, there's other alternatives. And
21 they've totally glossed over that.
22 In fact, even the drainage from the -- from
23 the proposed pens can't get into the lagoon. They don't
24 address that. They assume that it's close; I guess it
25 will get there. Or they want you to think it will get
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1 there and it doesn't. You've seen the exhibit.
2 CHAIR KIRKMEYER: Mr. Webster had a question
3 for you.
4 MR. WEBSTER: In your mind, in your opinion,
5 do you feel that this facility can be adequately enlarged
6 to 2000-head capacity on the acreage that they now have
7 and -- and be able to get into the compliance with the
8 State of Colorado Health Department?
9 MR. LEAF: As far as the CAFO regs, yes,
10 I believe they can, if they have adequate plan design to
11 show where they're going to take the manure, that they
12 show that they can actually do what they're going to do,
13 that it can be done.
14 Whether or not that's compatible with the
15 uses of the surrounding community, I don't know. That's
16 your decision.
17 From a technical standpoint, this facility,
18 if properly done, can operate right. Just like any
19 facility. Just like the facilities that I've had an
20 opportunity to conceptually design.
21 MR. WEBSTER: There is adequate acreage for
22 that manure to be applied on that farm then?
23 MR. LEAF: No, there's not. Not for every --
24 not for the 166, 000 plus 17 , 000 pounds of nitrate that's
25 being generated on that -- from that facility. You'd
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1 need over 1200 acres. The applicant's land ownership is
2 not enough. He could not meet the CAFO regs. It has to
3 be moved off-site.
4 Now, whether or not there's 1200 acres to
5 receive that around there and it's within reasonable
6 transportation distance, I don't know. I don't know.
7 But you cannot apply that on that farm.
8 Everything generated from that farm cannot be applied
9 to it.
10 MR. WEBSTER: But if the lagoon system was
11 adequate to contain the waters off of this operation into
12 that lagoon system, is there -- is there adequate acreage
13 within -- to -- to handle those acres -- or those --
14 MR. LEAF: From -- from the lagoon --
15 MR. WEBSTER: -- the amount of water?
16 MR. LEAF: Yes, there is. Just -- just
17 almost enough. I mean, there's -- there's more than
18 enough just by a few acres.
19 If you recall, I quantified that the lagoon
20 is going to generate about 17, 000 acre pounds -- or
21 17 , 000 pounds of usable end. The corn crop, if you
22 assume corn, which might be conservative, depending on
23 how you look at it, will require annual requirements of
24 19, 000 pound. So you can match those.
25 The problem is how do you get that to all 145
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1 acres. And that hasn't been demonstrated.
2 So what that means is that the remaining
3 dry manure produced on-site has to be hauled off. It
4 can't be -- by the CAFO rates, it cannot be applied,
5 since they chose that section to CAFO to comply with,
6 or it will exceed agronomic rates. There's no way that
7 will happen. It has to be trucked off.
8 MR. WEBSTER: No dry manure can be applied on
9 the place --
10 MR. LEAF: Yeah, and that's -- that's right.
11 That's one way to look at it.
12 MR. WEBSTER: -- if you expect to take all
13 the water out of that lagoon and apply on those acres.
14 MR. LEAF: Uh-huh. But I -- it hadn't been
15 demonstrated to me that a center pivot will cover all
16 145 acres. And I don't know, is a center pivot -- is
17 there going to be a separator? I mean, you don't just
18 take this water -- it has a -- total high and total
19 suspended solids, you start plugging up pivot nozzles.
20 I mean, Anheuser Busch does it. They've got
21 a lot of money invested in it, so -- you know, these
22 details haven't been presented to me.
23 MR. WEBSTER: Looking at the map, I don't
24 know how you would design a center pivot on that place --
25 MR. LEAF: I agree.
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1 CHAIR KIRKMEYER: You know, I asked this
2 question before -- I'm sorry, were you finished, Bill?
3 MR. WEBSTER: Yes.
4 CHAIR KIRKMEYER: I asked this question
5 before, and I can't remember -- for some reason, I don't
6 know what the answer exactly was.
7 But on that winter dry manure storage area,
8 is it possible for them to put a berm between there and
9 the Smith lateral? I mean, does that violate any
10 regulations or state statutes?
11 MR. LEAF: You mean in --
12 CHAIR KIRKMEYER: Because you were talking
13 about -- you know, everything going off into the Smith
14 lateral .
15 MR. LEAF: Yes.
16 CHAIR KIRKMEYER: It is possible for them to
17 build a berm?
18 MR. LEAF: It's possible. It needs to be
19 adequately designed. It needs to be -- it needs to be 10
20 to the minus 6 -- 10 to a minus 6 centimeters per second
21 permeability. And on a size -- on an acreage that size,
22 that would be very costly. But it is possible. It
23 hasn't been done. It hasn't even been addressed.
24 CHAIR KIRKMEYER: Okay.
25 MR. BAXTER: But I guess just to follow up, a
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1 berm is located there without a place for that to drain,
2 would not meet, obviously --
3 MR. LEAF: That's right.
4 MR. BAXTER: -- it has to drain someplace.
5 MR. LEAF: You've got to have a berm with an
6 adequate containment structure. Either you convey it,
7 get it into the lagoon, or you put another retention
8 structure there.
9 CHAIR KIRKMEYER: Okay. Thanks.
10 MR. WEBSTER: How many acres is that piece of
11 ground to the southeast corner, that you pointed out
12 could be -- it looks like it's in hay now, and I believe
13 it is --
14 CHAIR KIRKMEYER: Where this 52 is? Isn't
15 that where the lagoon -- down by the lagoon area? Down
16 here? This acreage or up here? So we're looking on
17 Exhibit CC, Map No. 1, this gray area up here?
18 MR. WEBSTER: Is that adequate to handle the
19 runoff from that acreage east of the Smith lateral?
20 MR. LEAF: I -- not knowing the topography,
21 I believe some water does run down there. If it's
22 designed properly, yes, it could be. That could be
23 another retention structure.
24 MR. WEBSTER: You'd have to put a retention
25 there, is what you're saying?
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1 MR. LEAF: Uh-huh. It has to -- that water
2 has to be --
3 MR. WEBSTER: There is not enough acreage to
4 apply it on the land?
5 MR. LEAF: No. Because, as you recall, I
6 quantified 6 acre-feet. If you put 6 acre-feet in there,
7 it's going to run off. You've got to have storage to
8 handle 6 acre-feet.
9 MR. WEBSTER: There's 6 acre-feet of runoff
10 area there?
11 MR. LEAF: Uh-huh.
12 MR. WEBSTER: I had forgotten that.
13 Thank you. That's all I have.
14 CHAIR KIRKMEYER: Okay. I don't believe
15 there are any more questions for you at this point.
16 Thank you.
17 MR. HELLERICH: I have some.
18 CHAIR KIRKMEYER: That's fine. You have
19 questions?
20 MR. HELLERICH: Yes, I have some questions
21 I'm going to ask. Trevor, he can finish that up.
22 I 'm going to hand out the CAFO regulations.
23 I think these -- you have indicated these are already in
24 the record. I 'm not sure what exhibit that would be.
25 But there are copies for your convenience.
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1 Do you have a copy? If not, I can have one
2 marked.
3 MR. MORRISON: They've been submitted.
4 MR. HELLERICH: They have been submitted?
5 MR. MORRISON: Uh-huh.
6 MR. HELLERICH: Okay.
7 MR. MORRISON: Yeah, I'll find that. What
8 other issues just -- Madam Chairman, Mr. Sainz is not
9 available this afternoon, so if you've got questions, we
10 should pose those before noon.
11 CHAIR KIRKMEYER: Would that be all right
12 with you, Mr. Hellerich?
13 MR. HELLERICH: Sure. We can interrupt.
14 CHAIR KIRKMEYER: Okay. Thank you.
15 Mr. Sainz, would you like to come forward
16 and, if you would, please, state your name and address
17 for the record.
18 MR. SAINZ : Good morning everybody. My name
19 is Victor Sainz . I'm the district engineer for
20 Weld County. I work for the Colorado Department of
21 Public Health and Environment.
22 Maybe I should tell you a little about what I
23 do. I cover ten counties. All the way from Gilpin,
24 Larimer, Weld, and all the northeast, and also Boulder
25 County. That's a different state on -- on its own.
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1 I do a lot of water quality. Feedlots and
2 dairy operations is not the only thing I do. I do a lot
3 of water quality related to wastewater treatment
4 facilities, drinking water treatment facilities,
5 groundwater compliance. I also do a lot of citizen
6 complaints. And that's what I -- some of the things
7 that I do.
8 I wanted to talk a little bit about the CAFO
9 regulations that have been quoted. And I 'd like to give
10 you a little bit of a background about the CAFO
11 regulations and the way they're implemented.
12 I think Forrest had indicated that -- Forrest
13 indicated that we have to approve concession plans and
14 specs for this type -- of these types of facilities. I
15 think the CAFO regulations don't state that.
16 CAFO regulations read -- on Section -- you
17 have a copy. Section 4 . 8 . 7 , Manure and Process
18 Wastewater Management Plans. My accent is not too good,
19 but you can go ahead and read it on your own.
20 And you will see that all new, reactivated,
21 reconstructed, or expanded concentrated animal feeding
22 operations and existing concentrated animal feeding
23 operations which have been determined by the director to
24 be in significant noncompliance with these regulations,
25 shall submit a manure and wastewater management plan to
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1 the division.
2 That is the only case in which we review the
3 plans and the specs. Not plans and the specs, actually
4 we review this manure and process wastewater management
5 plans. We don't review the construction plans and the
6 specs; neither do we approve them.
7 That is the responsibility of the operator to
8 be in compliance with the regulations. These regulations
9 don't allow us to issue permits. They -- we call them
10 control regulations. They are self-implementing.
11 The operator is supposed to know these
12 regulations, or he's delegated a consultant in this case,
13 and the operator is supposed to be in compliance of these
14 regulations. If he has any questions, he should call us,
15 and we should -- and we are available to discuss these
16 regulations with the operators and to provide our
17 comments.
18 So I think there has been allegations by the
19 people who are opposing the application of Mr. Hirsch,
20 that we have not implemented the regulations. That's not
21 the case. We have. And we have implemented the
22 regulations.
23 And too, I'd like to make two comments about
24 what Forrest presented. He said that the soil types are
25 not suitable for the construction of this type of a
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1 containment pond.
2 The regulations don't say on what kind of
3 soils can you build a containment pond. You can build a
4 containment pond anywhere you want. As long as you are
5 able to meet the 10 to the minus 6 centimeters per second
6 seepage rate, you can put a containment pond anywhere.
7 Absolutely anywhere. There's absolutely no
8 representation in the regulation about the construction
9 of that. I want to make that clear.
10 Also there has been some contention about the
11 soil borings, that the soil bores were not done on the
12 proper site. And the regulations don't require any kind
13 of soil borings. Absolutely none.
14 The regulations read -- I don't know these
15 things by heart, and I have to read them all the time and
16 I have to -- can you check into that Trevor, please.
17 MR. JIRICEK: You've got my regs.
18 (Pause)
19 MR. SAINZ : I can never find what I need.
20 CHAIR KIRKMEYER: Are you talking about the
21 Manure and Process Wastewater Retention Structures?
22 MR. SAINZ : Yeah, I think it's one of those
23 sections.
24 CHAIR KIRKMEYER: That would be 4 . 8 . 4 on
25 page 10. It talks about the liners. That part there.
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1 MR. SAINZ: Okay. Thank you.
2 CHAIR KIRKMEYER: Is that what you're
3 looking for?
4 MR. SAINZ: Yeah, that's what I 'm
5 looking for.
6 CHAIR KIRKMEYER: What section are you in?
7 MR. SAINZ: Well , Section 4 . 8 . 4 .
8 CHAIR KIRKMEYER: Okay.
9 MR. SAINZ: It says that the operator should
10 provide suitable evidence that the -- actually, they can
11 use in situ earthen materials or very low permeability
12 materials. And shall not exceed the 1/32 per day -- inch
13 per day of seepage drainage, which translates to metric
14 systems, which is 10 to the minus 6 centimeters per
15 second.
16 The operator shall have available suitable
17 evidence that a completed lining meeting the requirements
18 of these subsections -- subsection has been -- was
19 constructed.
20 That's what the regulations require. They
21 don't require the soil borings. However, most consulting
22 engineers do soil borings because that's a good way to
23 prove that the soils are suitable and that -- it helps
24 them to determine the thickness and the quantity of a
25 liner that they have to put in.
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1 If they're going to use bentonite, that tells
2 them how much bentonite they have to use. And that tells
3 their clients how much money they have to put to do that.
4 Other facilities, they use synthetic liners
5 that would meet the 10 to the minus 6 centimeters per
6 second seepage rate.
7 So we do take -- we cannot -- when we -- when
8 we review these things or when we get questions from
9 consultants, we try to apply these regulations in a
10 practical way. And so we do take all their surrogate
11 proofs that this -- this part of the regulation has
12 been met.
13 MR. BAXTER: Madam Chairman, I have a couple
14 of questions.
15 CHAIR KIRKMEYER: Sure.
16 MR. BAXTER: Two questions on that then.
17 What -- what do you take -- you say that you're requiring
18 them to be self-implementing, but the liner has to meet
19 certain -- well, the spec here. Then you say that he
20 should have on -- that the operators should have suitable
21 evidence that it met these. Now, what -- do you accept
22 an engineer's report or --
23 MR. SAINZ : Yeah. Well , let me explain what
24 happens. We don't do inspections of feedlots or dairy
25 operations. We only do inspections on these facilities
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1 when we get complaints. We don't go out there inspecting
2 these facilities the way we do wastewater treatment
3 facilities.
4 Because a wastewater treatment facility will
5 have a permit. And because of that permit, they have to
6 report on a regular basis what the effluent is. So we do
7 the regular inspections on those kinds of facilities. On
8 the feedlot, we don't do that.
9 But if somebody complains about the
10 operations, saying that they are not meeting or
11 they're -- they're suspicious that they are not meeting
12 the regulations, then we go in and do an inspection. At
13 that point, the operator has to provide suitable evidence
14 that they have built these facilities the way the
15 regulations indicate.
16 So if he has a letter from a consulting
17 engineer saying -- or from a construction company saying
18 that the liner that was put at the time of the
19 construction meets the 10 to the minus 6 centimeters per
20 second seepage rate, that's enough for me.
21 I don't have the means -- I do know how to do
22 it, but it would take me a long time to do seepage tests
23 in the field. And by looking at a pond, I can't tell .
24 Nobody can, as a matter of fact. There's not a single
25 individual in this room that can go and inspect a lagoon
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1 system and say this lagoon is seeping.
2 We have to rely on other methods to be able
3 to do that. We have to rely on the available information
4 that the operators have.
5 Let's say, for example, how many cows a day,
6 how much water did they use, how big is the pond, how
7 much water is on the pond, what is the evaporation rate,
8 what is the rainfall rate, and we do a balance, if
9 there's a deficit, then we know -- if there's excess
10 water going up to the pond, then we know the water is
11 seeping into the ground.
12 If there's less water going into the pond
13 than the capacity available, then we do know that they
14 have enough capacity. Those are the methods that
15 we use.
16 MR. BAXTER: Okay. A separate question but
17 related, distance to groundwater makes no difference as
18 to type of lining? Or do you take that report saying how
19 the soil boring showed how far the groundwater --
20 MR. SAINZ : The regulations don't give us any
21 guidance. The regulations say it has to be -- I think
22 there's a mistake with that. It has to be some sort
23 of -- what does it say? 2 feet? 2 feet.
24 MR. BAXTER: And then you take that letter
25 from that engineer saying there was 2 feet to
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1 groundwater?
2 MR. SAINZ : Uh-huh. Because we don't do
3 construction inspections. When these facilities are
4 being constructed, we don't go out there and do the
5 inspections. We don't have the manpower available. And
6 it's not our role to do that.
7 That's why we have construction companies
8 and consultant engineers who are in the business of
9 doing that. We enforce the regulations. And that's
10 what we do.
11 CHAIR KIRKMEYER: Okay. How do you enforce
12 your regulations?
13 MR. SAINZ : In this case --
14 CHAIR KIRKMEYER: Now, that's the question
15 that we've all asked. I mean, you've talked about
16 significant noncompliance and you're requiring action and
17 15 days are up as of tomorrow. So how do you enforce --
18 MR. SAINZ : We've already had a response.
19 The way we enforce the regulations is, when I received
20 the waste -- the manure wastewater management plan that
21 was done by Terracon, I went through the -- through the
22 documentation provided to me.
23 And in this report, I didn't see suitable
24 evidence that they had a list of 12 inches of liner that
25 it was compacted in situ or that they had a synthetic
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1 liner that it was put in place.
2 And I think I did receive a letter from Ken,
3 in which -- he had two copies excerpted from a letter
4 that Terracon responded to my comments to Mr. Hirsch. I
5 guess that letter was sent to Mr. Hirsch. I never did
6 receive a copy myself -- in which he highlights two
7 statements -- and I guess you have that letter in there,
8 that it says -- that Terracon comments that the -- during
9 the construction, I guess, compaction wasn't properly
10 done, even though they were not supervising the
11 construction.
12 I think the construction was done by
13 Mr. Hirsch. And he didn't retain an engineer during the
14 construction process. And maybe that's why he couldn't
15 meet that permeability test that Terracon has done
16 this year.
17 And so that was enough evidence for me --
18 this is not a personal matter -- for the division; I
19 represent the division -- for the division to come up
20 with a ruling that there's not suitable evidence that the
21 facility was built the way the regulations entailed. And
22 so we indicated that Mr. Hirsch either relines the pond
23 or he puts a groundwater monitoring system.
24 CHAIR KIRKMEYER: And has that happened?
25 MR. SAINZ : Well, we have -- like I indicated
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1 in one of my letters to Ken, I said that we cannot -- we
2 have a due process. We can't just go out there and start
3 shutting people off because they happen to be in
4 violation.
5 They're a legitimate business operations, and
6 we have to follow the regulations and the policies. And
7 we give them 15 days to respond to what course of action
8 was he going to take. And I think in his response, he's
9 going to reline the lagoon.
10 And at this point, I 'm going to meet with --
11 I 've already scheduled to meet with Terracon engineers,
12 because they representing Mr. Hirsch, tomorrow morning.
13 And we're going to work out the details ; how long is it
14 going to take and what kind of information I'm going to
15 require before I can go ahead and approve the relining of
16 the lagoon.
17 CHAIR KIRKMEYER: And are you going to
18 require a permit for discharging?
19 MR. SAINZ : Not until the lagoon is lined the
20 way the regulations are required.
21 CHAIR KIRKMEYER: Okay.
22 MS . HARBERT: Okay. I would -- I 'm
23 interested in this process, also, in the fact that, you
24 know, it looks to me like the fox is guarding the hen
25 house, more or less, when you say it's up to the operator
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1 to be in compliance and -- and nobody really checks up to
2 see whether he is or not.
3 And I -- I don't understand -- I guess this
4 isn't an appropriate question -- or statement, but I
5 don't understand why the state takes on regulations when
6 they don't provide the manpower to -- to carry them
7 through.
8 But on the other hand, have you gotten any
9 complaints about Mr. Hirsch's dairy from the public
10 before he applied for this expansion of his dairy?
11 MR. SAINZ : I think you have a two-part
12 question. The first answer to your question will be
13 that, yes, we take on regulations because the politicians
14 or the legislature tell us the way -- that's the way they
15 set them up.
16 MS. HARBERT: Maybe they would be better
17 off giving them to the local authorities rather than
18 the state.
19 CHAIR KIRKMEYER: Then we have to fund the
20 enforcement.
21 MR. SAINZ: Well , the second part to your
22 question would be, no, I haven't. The first complaint
23 that I did receive, I think it was from Ken, who
24 represents the Lind Farms, Incorporated, who are
25 neighbors of Mr. Hirsch.
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1 MS. HARBERT: And was that before or after
2 they applied to expand their dairy?
3 MR. SAINZ : That was -- I can't remember.
4 When was it, Trevor, in July or September of
5 this year?
6 So I have no idea. No, I don't know when
7 they applied for expansion, but the complaint was
8 filed -- actually, it was filed to Derald Lang, my
9 supervisor, and he gave me a little note saying do an
10 inspection on this site.
11 MS. HARBERT: And then do you control or do
12 you monitor the odor factor in that? Or is that
13 something that we do? I know we monitor odors, but do
14 you monitor them on -- or does that fall into the
15 category since it's an agricultural operation?
16 MR. SAINZ: No, it doesn't. Actually, it was
17 on your question on the first page of the regulations,
18 4 . 8 . 1 (4) says, This regulation is not intended to address
19 public health nuisance conditions or land use controls
20 such as zoning requirements. That's your problem.
21 MS. HARBERT: Okay. What did you say,
22 4 . 8 . 1 (4) 7
23 MR. SAINZ : It's right on the first question,
24 the last paragraph. Or I mean, the first page, the last
25 paragraph.
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1 No, we are not consented by all the
2 conditions because this is an agricultural area, and it's
3 up to the county to enforce the regulations.
4 MR. BAXTER: I had a follow-up question on
5 the linings. This process that's going to -- your
6 requirement to reline the pond and all that goes ahead
7 irregardless of what happens with an expansion or
8 anything else? It's not contingent on anything we do
9 here whether that process continues?
10 MR. SAINZ : You are correct.
11 MR. WEBSTER: In your opinion, has the
12 operation been out of compliance as far as the number of
13 cattle placed on that in relation to --
14 MR. SAINZ : Well , I think there was a
15 misunderstanding. I 'm not going to try to explain
16 Mr. Hirsch's motives, so I don't know -- because I don't
17 know them.
18 I did an inspection responding to Ken's
19 complaint. And when I do inspections, I rely on
20 information that the operator gives to me. I don't go
21 out there and start counting cows. Because there's -- it
22 will take forever, when you do an inspection, if I start
23 doing that. I asked how many head do you have, and he
24 indicated somewhere around 600. And then evidence was
25 submitted to you, I guess, and the county that he had
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1 more cows than what he has told me.
2 Since the regulations are controlled
3 regulations, self-implementing regulations, he should
4 have known that once a dairy operation exceeds 720 cows,
5 it becomes a concentrated animal feeding operation. And
6 at that point, he should have contacted us, notifying us
7 that he did not only have a dairy operation, a feeding
8 animal operation, he had a concentrated animal feeding
9 operation.
10 We don't know until that evidence was
11 submitted to the county, which was, I think, a year or so
12 later.
13 CHAIR KIRKMEYER: Okay. Any other questions?
14 MR. HALL: I have one.
15 CHAIR KIRKMEYER: I 'm sorry, go ahead.
16 MR. HALL: I have just two follow-up
17 questions, I guess, in that there's a lot made of the
18 violations of the CAFO regulations, and I think I
19 understand what you're saying. But the letter of October
20 22 that you wrote to the -- to Jacob Hirsch -- and the
21 way I'm reading it says that you recommended -- that the
22 decision recommends that Mr. Hirsch provide, immediately,
23 a runoff containment berm to direct runoff to the
24 containment lagoon or relocate the pile to a south -- to
25 the south of its present location.
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1 To me, I hear and read the recommendation of
2 the division and not a violation or a requirement. Is
3 that --
4 MR. SAINZ : You are correct. When I did an
5 inspection, I didn't see any evidence of a violation;
6 therefore, I cannot assume that he had a violation a year
7 ago. I have to witness the violation. If we're going to
8 take enforcement action, we take water samples or we have
9 reports from the local county health departments or we
10 don't -- I'm sorry, I 'm going -- I'm getting a little too
11 fast here. Or we witness these violations.
12 If I would have seen a -- if I would have
13 witnessed a violation, then I would have said, You are in
14 violation. It wouldn't be a recommendation. It would be
15 a requirement of the regulation.
16 MR. HALL: And then the second one was the
17 December 2nd letter which your division did find them in
18 violation.
19 MR. SAINZ : Because of the -- he was
20 operating a concentrated animal feeding operation because
21 of the evidence submitted to us through the county. And
22 because he didn't provide suitable evidence that the
23 liner that he put into that pond meets the criteria that
24 we have in the regulations.
25 MR. HALL: And your requirement was to have
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1 that evidence submitted within 15 days and you --
2 MR. SAINZ: He has to respond to our letter
3 within 15 days to indicate what course of action he is
4 going to take to bring his facility in compliance.
5 MR. HALL: So is it in your opinion that that
6 is be being complied with, or in your judgment will be
7 complied with, or do you still find them in violation?
8 Do they have to do more, other than giving you the
9 information about the liner?
10 MR. SAINZ : Well, he will have to -- he's
11 already responded that he's going to reline the -- the
12 pond. And now we're going to work out the details,
13 you know. It's in the middle of the week.
14 MR. HALL: So within your process of due
15 process to the applicant, he is meeting his obligations
16 at this point in time --
17 MR. SAINZ : He is.
18 MR. HALL: -- to continue on?
19 MR. SAINZ : Uh-huh.
20 MR. BAXTER: That includes drainage from the
21 storage manure pile or does it?
22 MR. SAINZ : Well, it's going to include a
23 hell of a lot more than what he has presented before.
24 I'm sorry. He is going to put -- he's going to have to
25 provide more information because I'm going to go into a
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1 lot more detail like I did with National Hog Farms when
2 we inherited it from the county. You guys approved it
3 and then you give us the problem later on. But we will
4 take care of it.
5 MR. HALL: Prior to this board.
6 MR. SAINZ : No, it wasn't prior -- you guys
7 weren't elected back then. It was somebody else.
8 (Discussion among participants)
9 MR. SAINZ : But we aren't finding National
10 Hog Farms in noncompliance, so it's working out okay.
11 CHAIR KIRKMEYER: All right. Any further
12 questions?
13 Thank you very much for coming again today.
14 MR. HELLERICH: Can I ask him a question?
15 MR. SAINZ: Sure.
16 MR. HELLERICH: Victor, when you wrote your
17 October 22nd letter, did you know that this was an
18 operation that had requirement from CAFO?
19 MR. SAINZ: All the operations, concentrated
20 or otherwise, have to meet the CAFO regulations, yeah.
21 MR. HELLERICH: Did you -- but did you know
22 that he was under the concentrated feedlot requirements?
23 MR. SAINZ : No, I didn't. No, I didn't. I
24 didn't have that information. I think that information
25 was provided -- Trevor sent me a memo with the copy. I
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1 can't remember what the date was.
2 CHAIR KIRKMEYER: Just -- just -- we can't
3 have everybody talking at once.
4 MR. SAINZ : I'm sorry. This is Victor Sainz,
5 again. I didn't get the information that Mr. Hirsch was
6 operating a concentrated animal feeding operation
7 until -- I can't remember the date. But it was sometime
8 in October, I guess, Trevor send me a copy of the
9 evidence submitted to you.
10 CHAIR KIRKMEYER: Okay. Mr. Hellerich, did
11 you have any further questions?
12 MR. HELLERICH: No.
13 CHAIR KIRKMEYER: Okay. Mr. Chilson, did
14 you have a couple of questions because -- since he is
15 leaving?
16 MR. CHILSON: Yes, I do.
17 Mr. Sainz -- oh, this is John Chilson.
18 Mr. Sainz, have you received quite a number of
19 communications from Mr. Kenneth Lind making complaints
20 about Mr. Hirsch's operation?
21 MR. SAINZ : I think I have received like
22 three or four or five letters. I can't remember. I
23 didn't bring my file.
24 How many letters did you write me?
25 CHAIR KIRKMEYER: That's okay. I'm sure we
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1 have a copy of every single one.
2 MR. LIND: Probably three or four.
3 MR. SAINZ : I think it's four, yeah.
4 Yeah, four.
5 MR. CHILSON: And when was the last one,
6 roughly, do you recall?
7 MR. SAINZ: I think you have that, let me
8 see. The last one, I think, was November 20th. Yeah,
9 November 20th.
10 MR. CHILSON: The job that you will then
11 be performing on behalf of the -- of your department
12 with Terracon, the engineers for Mr. Hirsch, will be to
13 outline the scope of the work, the specific work to be
14 undertaken, the timing for completion of that work,
15 and, I would gather, an inspection and review by the
16 department after that work is completed to determine
17 compliance.
18 MR. SAINZ : That's correct.
19 MR. CHILSON: And that will all be done by
20 your department?
21 MR. SAINZ : It will be done by our
22 department.
23 MR. CHILSON: Irrespective of what
24 happens here?
25 MR. SAINZ : We don't really care what you
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1 guys do here.
2 (Discussion among participants)
3 MR. CHILSON: Okay.
4 MR. SAINZ : Now, if Mr. Hirsch doesn't comply
5 with the regulations, we will enforce it. The next
6 letter will be from the AG's office to his lawyer.
7 MR. CHILSON: I understand.
8 MR. SAINZ : And at that point, we would have
9 a compliance schedule set by us. It wouldn't be an
10 agreement. It would be on such and such a date, you have
11 to do this, this, and this.
12 MR. CHILSON: And then if he does not comply
13 with your requirements, then action is taken to close him
14 down with due process and all of that?
15 MR. SAINZ : I can't respond to that
16 question. I think that would be something that the
17 division director will have to decide --
18 MR. CHILSON: Okay.
19 MR. SAINZ : -- based on my recommendations.
20 MR. CHILSON: In appearing here on behalf of
21 the state for your department, are you expressing any
22 recommendation one way or the other to the board as to
23 what their decision should be in this case?
24 MR. SAINZ : I'd like to stay off the
25 recommendation aspect of it.
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1 MR. CHILSON: The work that you do, you are
2 involved with the county health department, I take it, in
3 some respects in coordinating work.
4 MR. SAINZ : We do have a memorandum of
5 agreement with the county. They do some inspections for
6 me on drinking water and wastewater facilities and
7 feedlots and I do technical advising and this -- we have
8 entered into this agreement this year because we wanted
9 to make our work a little bit more efficient.
10 MR. CHILSON: And so, I -- I gather, that you
11 and Mr. Jiricek, or whoever from the health department,
12 will have some contact with each other about the work
13 that will be done on Mr. Hirsch's farm to come in
14 compliance not only with CAFO but in compliance with
15 conditions that are imposed by the commission if they
16 grant the permit here.
17 MR. SAINZ : Yeah, we do work with -- I work
18 with Trevor all the time.
19 I think we meet once a week, don't we?
20 We have a date once a week.
21 MR. CHILSON: All right. Let me have just a
22 moment. There's one other --
23 MR. SAINZ : With this particular operation,
24 we will be getting together.
25 Can you make it tomorrow at 10: 30 --
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1 CHAIR KIRKMEYER: You can't set up dates in a
2 public hearing.
3 MR. SAINZ: This is professional.
4 By the way, I'm originally from Bolivia. I 'm
5 legal, though. I'm not an illegal alien. That's why my
6 accent -- sometimes my brain goes a little too fast and
7 my tongue doesn't go at the same speed. I'm sorry
8 about -- I apologize for that.
9 MR. CHILSON: That's all right. Thank you.
10 CHAIR KIRKMEYER: Is that all you had?
11 Okay. You're finished? I just want to make sure because
12 he won't be back this afternoon.
13 MR. HELLERICH: That's fine. Okay. No
14 further questions.
15 CHAIR KIRKMEYER: Thank you very much for
16 coming up.
17 MR. SAINZ : Have a good day.
18 CHAIR KIRKMEYER: Thank you. Okay.
19 Considering that it is five minutes till noon, and I know
20 I have an appointment I have to be at at noon, I 'm not
21 sure what the rest of the commissioners will be doing,
22 we're going to recess. And we'll be back at -- what
23 time? Do you all have appointments or anything?
24 I'm going to suggest we be back at 1: 00
25 because I know Commissioner Webster needs to be out of
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1 here at 3 : 30. Okay. So we'll recess until 1: 00.
2 (The hearing recessed at 11: 55 a.m. ,
3 to be reconvened at 1: 00 p.m. )
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1 AFTERNOON SESSION 1: 01 p.m.
2 CHAIR KIRKMEYER: Let's go ahead and call
3 back to order the Board of County Commissioners hearing,
4 and I believe we're still in the public hearing portion.
5 And, Mr. Hellerich, you' ll need to restate
6 your name and address for the record because we're
7 starting again here.
8 MR. HELLERICH: All right. My name is
9 Tom Hellerich. I 'm with the firm of Doyle, Otis, Frey
10 & Hellerich, and I'm representing several of the
11 neighboring landowners that are in opposition to this
12 application.
13 I believe, when we broke, we were ending,
14 I guess, with Victor's statements and comments.
15 Victor Sainz of the State of Colorado Department of
16 Public Health and Environment. And just a couple of
17 comments on the information that he had provided
18 as well .
19 I think Commissioner Harbert asked when the
20 complaints came in and just in response to that, too, to
21 give you some additional information, Victor quite wasn't
22 aware of the original complaints that came in.
23 The lagoon and the operation was really
24 finished up around the fall of '94 . And by the spring
25 of '94 -- '95, within six months there were complaints
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1 coming in. But they came in to the county, not to the
2 state, by several of the neighbors. And that eventually
3 led to the complaint that came out in August of '95.
4 So the spring of '95 is when the first
5 complaints started coming in right after the operation
6 first started.
7 I need Forrest Leaf to come back up. I have
8 some questions I want to ask him based upon the questions
9 that he was asked and then also some questions concerning
10 Victor Sainz ' comments as well .
11 MR. LEAF: Forrest Leaf, Leaf Engineering.
12 MR. HELLERICH: I guess, first of all ,
13 Victor Sainz had made some comments about the soils that
14 were out there and the types of soils and where you can
15 put a lagoon like this, and I'd like to have you comment
16 on Victor's comment because he was making reference to
17 the statements you had previously made.
18 MR. LEAF: I believe Mr. Sainz indicated that
19 the regs do not require certain soil types for a lagoon.
20 The point I was making was that this soil was not
21 suitable for a lagoon, if you're going to use parent
22 material and compact it.
23 And, in fact, I -- I alluded to the fact that
24 the USGS, in their soil survey, has said that. And, in
25 fact, I'm going to read from their language of Otero
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1 sandy loam soil that they've classified.
2 And in it, there is a statement that says,
3 The only limiting feature is the moderately rapid
4 permeability and the substratum which causes a hazard of
5 groundwater contamination from sewage lagoon.
6 And my point being is not to say that the
7 regs -- they violated the regs by putting it in that
8 soil type. It may be possible to put a lagoon on -- on
9 that soil type or any other soil type, but the factor
10 is the CAFO regs say you need to meet that minimum
11 permeability.
12 And if that can't be done with
13 parent material and compaction, then you have to go to a
14 synthetic liner. And the applicant did not do that.
15 And, in fact, we understand that now they
16 are considering doing that. So that was a point to
17 clarify that.
18 The other thing Victor brought up was that
19 the state really has no authority to shut down a business
20 or to regulate this or to make them comply. It's all up
21 to the -- the applicant to turn himself in and say, I'm a
22 bad guy. You know, that's the fox watching the hen
23 house here.
24 And I think -- the problem that I see here is
25 that nobody is going to take responsibility for ensuring
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1 that the CAFO regs are -- are met.
2 I keep hearing that the state really doesn't
3 want to do it and the county doesn't have the
4 responsibility, but the fact is, from the engineering
5 data that I've looked at and presented, is that -- and
6 Victor knows that there's common sense that goes into
7 designing and -- and putting in a lagoon like this. And
8 that -- and he knows that full well .
9 So for him to say that he's not going to be
10 responsible for that but he's going to rely on the
11 applicant's consultant to do that, when the consultant
12 hasn't really presented that, in my opinion, to a -- a --
13 faithfully and totally disclosed all what's going on,
14 I think we, as opponents, have some concern about that.
15 MR. HELLERICH: I think right before Victor
16 got up to speak, I handed out the -- the CAFO
17 regulations. I 'd like to walk through some of that with
18 Forrest Leaf and have him comment on some specific
19 sections of that. And I'll make reference to that. If
20 you have it out, I 'll go page and section number so it's
21 easier to follow.
22 I guess to have some background, first of
23 all, Mr. Leaf, are you -- are you familiar with the CAFO
24 regulations?
25 MR. LEAF: Yes, I am.
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1 MR. HELLERICH: And how are you familiar
2 with that?
3 MR. LEAF: I have represented several clients
4 in -- not only before the county commissioners, but also
5 other design considerations with CAFO in helping them
6 interpret the regs, what they need to do conceptually,
7 and then the next step, and what they need to do for
8 design, plan specifications, and, ultimately,
9 construction.
10 MR. HELLERICH: Have you also reviewed the
11 application that the applicant had submitted in this
12 particular case?
13 MR. LEAF: Yes, I have.
14 MR. HELLERICH: And you had -- have you had
15 an opportunity to review the application and compare it
16 with the requirements under CAFO?
17 MR. LEAF: Yes, I have. And I believe that
18 my presentation earlier has presented a lot of what I
19 call discrepancies in the plan, not only for CAFO
20 regulations, but also zoning -- Weld County Zoning
21 ordinances.
22 MR. HELLERICH: These regulations are
23 promulgated by the Colorado Water Control Commission; is
24 that correct?
25 MR. LEAF: That's correct.
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1 MR. HELLERICH: I'd like to refer you to some
2 specific sections of the CAFO regulations, and I'd like
3 to have you make your comments. First, identify them and
4 what the area of the resolution is and then, also, make
5 your comments as to whether or not you believe this
6 application is in violation of the CAFO regulations as to
7 location, layout, or design, that has been submitted in
8 the application.
9 First of all , I'd like to direct your
10 attention to -- it's on page 6, Section 4 . 8 . 3 (A) .
11 MR. LEAF: Okay. Those are the general
12 performance requirements. They, basically, set forth the
13 requirements for a confined animal feeding operation;
14 that they are to have and operate a no-discharge facility
15 with respect to manure and process wastewater collection,
16 storage, and land application.
17 These general requirements and in review of
18 the applicant's plan have -- have led me to the
19 conclusion that this is too -- it's -- this use is too
20 intensive for this parcel of ground.
21 With all the -- the requirements under CAFO
22 and the zoning ordinances and Water Quality Control
23 Commission regs, their plan has not presented a lot of
24 the aspects. And if they were to present them and
25 implement them, I believe it's too intensive.
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1 And -- and from what I've seen of the
2 applicant and the way he's put it together and the way
3 he's operated it, it's my opinion, I think the use
4 is just too intensive to meet even the general
5 requirements of CAFO.
6 It's just -- there's a lot of structures that
7 need to go in, there's a lot of detailed maintenance, and
8 I simply haven't seen it up to date. And they're here
9 asking you for approval . And those details should have
10 been worked out. So that's my opinion of that.
11 As far as the -- the design, again, their --
12 their plan, as submitted, does not include all the design
13 elements that I think it should to meet the requirements
14 of this section.
15 Layout. It's not in a location -- it's not
16 laid out to where it shows how process wastewater will
17 kept -- be kept segregated from regular storm runoff; how
18 tailwater will be handled.
19 They've located several sites where tailwater
20 will accumulate; however, it accumulates on other sites
21 on the farm. They just haven't been comprehensive in
22 that. So in that respect, layout has been violated.
23 And location, it's -- it's just upstream and
24 adjacent to a classified aquifer system.
25 And as far as layout and the fact that the
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1 lagoon seeps -- as you see, my seepage calculations or
2 estimates, it's my opinion that the lagoon seeps and it
3 ultimately finds its way into that alluvial aquifer,
4 which is regulated by the Water Quality Control
5 Commission.
6 MR. CHILSON: Excuse me for interrupting,
7 Madam Chairman, but for the record, I wish to make a
8 continuing objection to this line of testimony as being
9 totally irrelevant. This is not a CAFO enforcement
10 hearing. This is not a CAFO violations hearing.
11 This witness's interpretation of CAFO is
12 totally irrelevant to the zoning issues before this
13 board, as has been all of his testimony about CAFO.
14 Okay? That CAFO is to be enforced and applied by the
15 state in conjunction with the county health department to
16 the extent that they utilize it.
17 This is not a CAFO hearing. None of this
18 deals with the zoning issues before this board and,
19 therefore, is totally irrelevant. Nor is this gentleman
20 qualified to testify about CAFO. He has not qualified
21 himself as having administered those regulations on
22 behalf of the state or has he been appointed by the state
23 to interpret them.
24 So I -- so that I don't have to do this again
25 and keep interrupting, I just want to make that objection
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1 for the record. Proceed.
2 CHAIR KIRKMEYER: Okay. Thank you.
3 Do you have any comment you want to make
4 to it?
5 MR. MORRISON: Well, part of that is -- some
6 of that, his qualifications, go to the weight of the
7 testimony. And I think you can take into -- without
8 rejecting the testimony, you can still balance the weight
9 of the testimony based on those comments that -- you
10 know, the qualifications of the witness and the other
11 comments that Mr. Chilson has made.
12 So you don't necessarily have to reject the
13 evidence. You can still take into account those comments
14 in weighing the evidence.
15 CHAIR KIRKMEYER: Okay. Thank you. Go ahead
16 and continue.
17 MR. HELLERICH: All right. Thanks.
18 Mr. Leaf, have you also had a chance --
19 in our packet that we submitted to the county, we refer
20 to several maps. Those will be Sections 45, 46, 47 ,
21 and 48 .
22 Have you also had a chance to review
23 those and compare some of the requirements under this
24 particular Section 4 . 8 . 3?
25 MR. LEAF: Yes, I have.
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1 MR. HELLERICH: Would you describe that
2 for me.
3 MR. LEAF: I think if you'll look at the maps
4 and -- and the references that Mr. Hellerich has given
5 you, you'll see that some maps -- every map virtually has
6 a different interpretation of -- well , for instance, if
7 you look on -- I guess it would be Tab 46.
8 This is their site plan. It shows -- in my
9 opinion, the lagoon is located in the wrong position. It
10 doesn't show any considerations for drainage or tailwater
11 retention.
12 If you move ahead to -- I'm sorry, the
13 previous one is 45 -- 46, you'll see that -- and if you
14 refer back to the previous map, they show no delineation
15 of what's currently existing and what's to be expanded.
16 If you go to the next map on 46 , you' ll see
17 that now they have expanded corrals. Again, no
18 consideration for drainage, fallways, conveyance
19 structures, and the lagoon is not adequately -- it
20 doesn't show -- maybe that's minor, but it doesn't
21 show the exact configuration of that lagoon as it
22 exists today.
23 And then ahead to 47 . That's the big map
24 that's up here, that you previously saw. Again, no
25 consideration for tailwater. They don't show it at all .
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1 They show cropland where cropland -- cultivated cropland
2 does not exist right now.
3 And, in fact, if they were to use water up
4 above that, that would be constant -- could be considered
5 expanded use if they ever were to irrigate that because
6 the Smith lateral does not have irrigation in this area
7 above the ditch. So that would be expanded use in my
8 opinion.
9 So these are the differences that I 've seen
10 in -- in these maps.
11 And then you go to the last one on,
12 I believe, 49 . Is that right? Or 48? 48 .
13 And now you can see -- we see a tailwater
14 pond, but that -- I note that that tailwater pond isn't
15 the only place the tailwater accumulates.
16 In fact, if you look at some of the exhibits
17 I handed out, I show clearly where tailwater right
18 adjacent to the -- the corrals and pond accumulates.
19 It's right by the drain, where it goes across the
20 county road.
21 CHAIR KIRKMEYER: Where would that be? I'm
22 looking on 48 .
23 MR. LEAF: Okay. Well , why don't we refer
24 to this.
25 CHAIR KIRKMEYER: Which one is this?
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1 MR. LEAF: This is CC-3 .
2 CHAIR KIRKMEYER: Okay.
3 MR. LEAF: I've delineated a runoff from
4 this area -- from this field ultimately collects --
5 there's a low spot right here. They show their tailwater
6 over here with no consideration of drainage or tailwater
7 collection here.
8 Referring back to this figure, you can see
9 that there is a low spot right there by Weld County
10 Road 23 in this same location of this red arrow, as shown
11 in the topo, yet it's not considered here. And that's
12 where the water drains. That's a low spot.
13 So these are -- these are the things, the
14 discrepancies, I 've -- I 've seen in the -- the plan as
15 submitted.
16 MR. HELLERICH: I 'd like to move on to page 8
17 of the regulations, in particular, Section 4 . 8 . 3 (B) (2) .
18 And can you tell me if that, in your opinion, is in
19 violation of the location, layout, and design.
20 MR. LEAF: Yeah. This particular section,
21 deals with containment of a 24-hour, 25-year storm
22 event. And as it -- in my estimation, that's only been
23 partially addressed, again, where the manure site -- the
24 dry manure storage is going to be contained. As far as
25 design, no consideration.
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1 Location. Again, the location of the lagoon
2 is not in a proper location if it is to intercept runoff,
3 if it goes under or over the Smith lateral.
4 And layout, again, it's -- it's an aquifer.
5 It's adjacent to an aquifer. And runoff seepage from the
6 lagoon can get into the aquifer. And also runoff, can --
7 it does run into the Smith lateral .
8 MR. HELLERICH: On that same page under
9 Subsection (C) of that same -- I'd ask you the same
10 questions about the location, layout, and design.
11 MR. LEAF: This section deals with the
12 maintenance requirements of a storage retention
13 structure.
14 Again, I would say that this -- this relates
15 to the lack of design for the manure storage area. They
16 simply do not show how they're going to contain that
17 water, whether it's going to be in the existing lagoon
18 and how they're going to get it there, or if it's going
19 to be in a different structure.
20 MR. HELLERICH: Moving to page 9 at the top,
21 under Subsection (C) (3) . I'd ask you the same questions
22 of whether that violates location, design, and layout.
23 MR. LEAF: Again, this is where I -- when I
24 referred to segregation of storm runoff from runoff that
25 comes off of manure stockpiles or open lots or what we
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1 call process wastewater. That has not been a
2 consideration here.
3 All the drainage above the ditch, whether or
4 not it comes in contact with the manure pile ultimately
5 will commingle, either right now in the Smith lateral or,
6 if they try to convey it, under the ditch.
7 So there's been no segregation or an attempt
8 to delineate that. So that would be -- as far as design,
9 I feel that it -- it falls short of that.
10 Again, the lagoon for layout, it -- it
11 simply -- they haven't addressed how they want to get
12 that water into the lagoon from that side. So as far as
13 location and layout, I feel it falls short there.
14 THE COURT: Moving on, then, to page 10 at
15 the top under Section 4 . 8 . 4, Subsection (A) , large A,
16 capital A. Could you comment on that as far as location,
17 design, and layout.
18 MR. LEAF: Yeah. I think this is the meat of
19 the -- the discussion that Victor talked about. This
20 sets forth the requirements for the retention structures,
21 if they come in contact with the wastewater or process
22 wastewater for manure and other processes to -- to have a
23 minimum permeability.
24 And clearly, the design doesn't do that by
25 the admission of their own consultants, by the admission
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1 of the state, it hasn't done that. They haven't
2 demonstrated that.
3 And again, I think that more importantly,
4 location for the type of the design that they've chosen
5 to try to go forth with, without a synthetic liner,
6 it's -- it's upstream of a classified groundwater
7 aquifer.
8 MR. HELLERICH: I'd like to move to page 11
9 at the top, under Subsection Capital (D) (1) , would you
10 comment on that, as well .
11 MR. LEAF: This section refers to manure
12 process wastewater conveyance. Shall be designed and
13 constructed to prevent exceedances of applicable water
14 quality standards.
15 I believe in design, I 've already pointed out
16 they have not presented any design of conveyance
17 structures.
18 As far as applicable water quality standards,
19 again, location and layout, the lagoon, in my opinion,
20 seeps. And it is impacting that classified aquifer.
21 MR. HELLERICH: How about Subsection (D) (2)
22 on that same page?
23 MR. LEAF: Infiltration of processed
24 wastewater shall be limited to the maximum extent
25 practicable. Again, through -- through Mr. Sainz and
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1 applicant's consultants, they failed in that test as far
2 as design.
3 MR. HELLERICH: Right below that on the
4 same page, 11, Section 4 . 8. 5 (A) (1) , would you comment
5 on that.
6 MR. LEAF: Yeah. This is -- this refers to
7 land application of -- and disposal of both manure and
8 dry manure and the process wastewater.
9 And as I've said, their plan as far as
10 explaining how they're adequately -- you know, they've
11 given it lip service. Well , we're going to put in a
12 pivot and we're going to take that water and we're going
13 to put it here.
14 The design isn't there. I don't -- I don't
15 see how they can do that. If they can, they certainly
16 haven't presented that.
17 As far as the manure disposal, the dry
18 manure, where they're going to truck that off, how
19 that's going to happen and on what schedules, I haven't
20 seen that either.
21 Again, location and layout, I think is -- it
22 doesn't meet that. It's -- it's -- for all of this, as
23 Commissioner Webster alluded, it's -- it's an awful lot
24 of manure production on a 165-acre parcel . And it's just
25 too intense.
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1 MR. HELLERICH: Subsection 2 under that,
2 would you comment on that, as well .
3 MR. LEAF: Oh, again, that's with disposal to
4 process wastewater. What the applicant proposes to do is
5 to somehow get this on the 145 or 165 acres, or
6 whatever -- whatever we can figure out they're trying to
7 claim, through a pivot, but they don't say how they're
8 going to do it.
9 Tailwater. They show one tailwater. But as
10 I've already mentioned, there's numerous other places on
11 that parcel where tailwater accumulates. On the south
12 side of the lagoon, that would take a whole distribution
13 system in tailwater, and they haven't shown any of it.
14 It's -- it's a complex array of not just one
15 tailwater collection system, but multiple, and that
16 hasn't been demonstrated.
17 MR. HELLERICH: I'd like to turn you now to
18 page 12 at the top under subsection heading under
19 Subsection 5.
20 MR. LEAF: Land application for manure and
21 process wastewater shall be limited by the operator as
22 set forth in the previous section and based on sound
23 agronomic practices.
24 Again, I think this violates design. I don't
25 see how they plan on distributing this.
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1 As you saw in my presentation, I -- I
2 concluded they need about 1200 acres additional to get
3 rid of their solid waste, and yet we have no idea where
4 that is or how that's going to be accomplished.
5 MR. HELLERICH: Under Subsection 5 (a) , that's
6 a small "a, " would you comment on that, sir.
7 MR. LEAF: This isn't -- what the CAFO regs
8 do is they present the operator the chance to simplify
9 their plan.
10 In the first -- this first Subsection (a)
11 simply says as long you don't apply any other nutrients,
12 synthetic or otherwise, and you -- you can apply your --
13 your manure product to your land at agronomic rates.
14 What that means, to me, is there has to be
15 demonstration that you don't exceed agronomic rates, and
16 that can be done numerous ways. But the applicant hasn't
17 said how they're going to do it.
18 Are they going to do soil samples? Are they
19 going to base it on chlorophyl samples of plants? Nobody
20 knows. It's -- it's, again, left to the operator.
21 And the history of the operator leads me to
22 believe that -- is this really going to happen? And I
23 believe that would violate the design criteria.
24 MR. HELLERICH: Would you look, then, on
25 page 13 , the next page at the top, Subsection (c) , and
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1 would you comment on that, sir.
2 MR. LEAF: Subsection (c) . This is when
3 operators, operations -- or operators choose to apply
4 this in excess exceeding agronomic rates, that there's
5 supposed to be a land application plan designed as
6 demonstrated that the rate will not result in the
7 exceedances of applicable water quality standards or
8 numerical production levels.
9 As I 've shown, they have no plans. While
10 they state that they don't -- they plan not to exceed it,
11 if they do, what are they going to do? And, in fact, I
12 have evidence to believe that they have exceeded
13 agronomic rates over the past three years in operation.
14 I believe that would violate the design and
15 also the layout and the fact that this particular parcel
16 is not conducive to have you apply overapplication
17 because you're -- you're overlying the classified
18 aquifer.
19 MR. HELLERICH: One last section, Mr. Leaf.
20 I'd like to you to comment on page 19 at the top,
21 Section 4 . 8 . 7 . Victor Sainz also commented on that
22 particular section of the CAFO regulations. Would you
23 comment on that with respect to location, layout,
24 and design.
25 MR. LEAF: I believe Victor was referencing
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1 this with the fact that there was an application -- or a
2 violation. And this is what really needs to happen when
3 there is a violation. As far as design, the violation
4 that has been sent -- even the previous notices that
5 they've been in violation, and I believe it violates the
6 design in that they haven't presented how they're going
7 to correct the problem.
8 A letter saying, We'll correct the problem
9 isn't adequate. It says here that you need to provide a
10 detailed plan. But we haven't seen that.
11 And if this is approved today with
12 conditions, we won't see that. We won't have the
13 opportunity to be at that meeting tomorrow with
14 Victor Sainz and the applicant to see -- How are you
15 going to dewater that? Are you going to shut down
16 operations? What are you going to do with that
17 wastewater in the interim? How long is this going to
18 take? What type of quality control are we going to
19 have? What kind of a substrate are we going to have for
20 that poly liner, if that's what you're going to put in.
21 You know, there's a lot of technical
22 questions that I don't believe that the Weld County
23 Planning Department or Health Department can address.
24 They don't have the expertise. And if you permit this
25 today with conditions, you've effectively removed the
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1 public participation in that process.
2 This application should not have gone forward
3 without having those details so the public can evaluate
4 them and comment on them.
5 MR. HELLERICH: The CAFO regulations you've
6 been talking about, are those water quality regulations,
7 water quality control regulations --
8 MR. LEAF: Yes, these are promulgated under
9 the authority of the Water Quality Control Act and under
10 the auspices of the Water Quality Control Commission.
11 They're the only ones that have the authority to
12 promulgate, amend, or otherwise change those.
13 MR. HELLERICH: Okay. Thank you. I have no
14 further questions.
15 CHAIR KIRKMEYER: Does the board have any
16 questions for Mr. Leaf?
17 I just have a couple. Did you find that
18 citation?
19 MR. HELLERICH: What were you looking for?
20 I was talking, I'm sorry.
21 CHAIR KIRKMEYER: Mr. Morrison asked earlier
22 about the Water Quality Control Act and the citation
23 regarding the aquifers.
24 MR. LEAF: I'll defer that to him.
25 CHAIR KIRKMEYER: Okay. And Mr. Sainz also
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1 made a comment that soil borings are not required by the
2 regulations. Would you agree with that statement?
3 MR. LEAF: I agree that the soil borings
4 are not required, but it does say that you have to
5 demonstrate that that was put in.
6 And common sense -- and Victor knows this --
7 an engineer is going to go out -- and he, in fact, said
8 that, engineers go out and they take soil samples, if
9 you're going to use a parent material and compact it.
10 And -- so to say that I'm going to put it
11 here and I want you to take it on face value, the regs
12 say you've got to demonstrate it.
13 And the only way is, number one, before you
14 build it, if you can show that you have adequate parent
15 material to do that -- and, yes, the -- the division will
16 comment and say, Well, we don't feel that's adequate.
17 Maybe you ought to change it. So they do -- they do
18 review these. I 've had them review mine.
19 And, two, in lieu of that, they need to do a
20 water budget. Neither has been done.
21 So I think Victor is kind of hiding behind
22 the regulations a little bit. Common sense says, if you
23 are going to go out and build a basement, you're going to
24 do soil tests to see what kind of structure you have to
25 build on.
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1 Terracon knows that, that's what they do,
2 daily.
3 CHAIR KIRKMEYER: In previous applications
4 that you've said you've been associated with and you've
5 done these plans and worked with these regulations, in
6 what manner was the public involved?
7 MR. LEAF: Through this process? Through a
8 USR. In fact, I believe it was 1092 . I 'm sequentially
9 counting backwards. I don't know if you have 1090 or
10 what. It was about a year ago. And we went in detail
11 over the CAFO regs. And a conceptual plan was designed
12 and has been approved. To date, there has been no
13 construction. And that's still the -- the detailed plans
14 and specs have not been put together yet.
15 CHAIR KIRKMEYER: All right. Okay. Any
16 further questions anyone? Thank you.
17 MR. HELLERICH: You wanted a reference to the
18 water quality control --
19 MR. MORRISON: What I wanted was a specific
20 reference. I believe Mr. Leaf indicated something about
21 a prohibition against approving a land use which caused a
22 degradation of groundwater. So I'm looking for that
23 specific reference, not the general reference to
24 the statute.
25 MR. HELLERICH: Okay. I'm not sure if
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1 this -- I guess I didn't quite understand that, but you
2 might take a look at these -- these two particular
3 sections. One would be 25-8-102 (7) (a) , V one, or roman
4 numeral nine. The other one would be 25-8-102 -- that's
5 the one I just gave you. Okay.
6 Another one is 25-8-102 , and it's
7 paren four.
8 I'm really looking at the second sentence of
9 that particular section, Notwithstanding any other. Are
10 you following me now? Okay. But that particular section
11 provides -- and I'm reading as a quote.
12 MR. MORRISON: All right. Oh, I have to look
13 them up.
14 MR. HELLERICH: Okay. That particular
15 section provides -- and I'm reading as a quote in the
16 middle of it.
17 CHAIR KIRKMEYER: I'm sorry, what section
18 is this?
19 MR. HELLERICH: I'm at 25-8-102 (4) . And I'm
20 reading from the second sentence of that particular
21 paragraph.
22 CHAIR KIRKMEYER: Okay.
23 MR. HELLERICH: It says, Notwithstanding
24 under the provision of law, no department or agency of
25 the state and no municipal corporation, county, or any
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1 other political subdivision has jurisdiction over water
2 pollution prevention, abatement, and control and cannot
3 issue any authorization or any discharge of any
4 pollutants into the waters unless authorized to do so
5 in accordance with this particular article. And the
6 owner references come in.
7 I guess I'd like to conclude with the request
8 that we have a right to do a closing argument after -- if
9 they're going to submit anything else, I guess, to make
10 some closing comments on that. And other than that, I
11 think we'd like to close our part of the presentation
12 with the right -- reserving that right to come back and
13 make further comment after they've made any further
14 comments.
15 MR. CHILSON: That is not the procedure.
16 CHAIR KIRKMEYER: Excuse me, I ' ll take care
17 of that.
18 Mr. Chilson is correct, that's not our
19 procedure and that's not the procedure I outlined when we
20 first started this public hearing. We have the
21 opportunity for a public hearing at which time you can --
22 public hearing and do it -- say whatever you wish at
23 that point.
24 After I close public hearing, though, it will
25 go back to the applicant for rebuttal and our own staff,
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1 if they have any other questions or recommendations or
2 comments or concerns. But once I close public hearing,
3 that pretty much closes out your time for any type of
4 rebuttal or any closing statements.
5 So I would suggest if you have any closing
6 statements, that you make them now or, you know, you
7 can -- I would allow you to come back up and we'll see if
8 anyone else in the hearing, first of all , would like to
9 come forward and make any statements, if you need time to
10 prepare for closing remarks.
11 MR. HELLERICH: Well, I don't know that I
12 need time for that, but I think it's invaluable to have
13 the opportunity to make any comments concerning any
14 additional things they may say. I think that is part of
15 the public hearing process so -- if they're going to
16 present any new information, then we certainly as part of
17 the public have a right to make a comment on that.
18 That's done through the court process. And
19 I would assume you would follow that here to give the
20 public a right to voice, you know, comments on that.
21 Because if they're going to submit additional
22 information or new information, then we should have a
23 right to have public input.
24 And I realize there comes -- in time and he
25 would have an opportunity to discuss that like we do in
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1 the court systems. You still have an opportunity to come
2 back and if he wants to make any comments on it.
3 MR. MORRISON: I think the board would have
4 the discretion if it's new evidence to reopen it. It's
5 still is the applicant who gets the last say in any case.
6 MR. HELLERICH: And I don't have a problem
7 with that. I think that's appropriate.
8 MR. MORRISON: But it needs to be new
9 evidence, not a restatement of prior testimony.
10 MR. CHILSON: Or rebuttal evidence. Evidence
11 rebutting their evidence is not subject to a re-rebuttal .
12 CHAIR KIRKMEYER: Okay. What -- we'll leave
13 it at this point -- up to this point, the board will
14 decide, and we'll use our own discretion as to whether or
15 not it's new evidence. If we feel that it's new
16 evidence, then we do have the right to open it back up
17 for public hearing at that point. But we will make that
18 decision, and I 'll ask the rest of the board members
19 if they want to do that. And that's how we'll --
20 we'll run it.
21 So if you have any other statements or
22 closing statements you'd like to make at this point,
23 I would suggest you do so.
24 MR. HELLERICH: Why don't you see if there's
25 any other public and then I 'll make the closing.
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1 CHAIR KIRKMEYER: Okay. Is there anyone else
2 in the public that would like to come forward at this
3 time and make any statements, comments to the board, if
4 you would please come on up to the microphone, state your
5 name and address for the record, and then your comments
6 to the board.
7 MR. FELTE: I had signed up earlier; I guess
8 it doesn't matter -- thank you Madam Chairman and
9 commissioners and the board. My name is Harold Felte.
10 I reside at 11767 Weld County Road 76, Windsor, Colorado,
11 since 1958 on a farm that has been in the family
12 since 1943 .
13 My wife, Joletta, is a school teacher for the
14 past 31 years at Windsor in the elementary school . And
15 we read in the paper about the proposed enlargement of
16 the Hirsch Dairy to 2 , 000 cows with extreme dismay and
17 unhappiness.
18 Because for the past couple of years or more,
19 at least two years, it has been our experience, in the
20 evening hours particularly, that the stench and the dust
21 or dander -- animal dander, whatever it is that's coming
22 from the dairy, is providing a very poor living condition
23 at our residence.
24 We are one mile downwind in the evening
25 prevailing winds from that dairy. And in the summertime,
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1 since we don't have an air-conditioned home, if you want
2 to have your open air windows, your bedroom windows open
3 to sleep at night, my wife, Joletta, is not able to rest
4 in bed because something is -- has been triggered since
5 the enlargement of that dairy.
6 It was coincidental with that exactly. And
7 we have seen this happen and she cannot rest. She has to
8 sit up all night. Because if she lies down, her lungs
9 will fill up. And she's been tested. She is not
10 asthmatic. There's nothing around our home that is
11 causing this.
12 And we were very unhappy about the idea of
13 doubling the size of that operation to where we feel it
14 will double the deleterious affects on our home.
15 We signed a petition in favor of a sheep
16 feedlot two years -- well, several years back, maybe as
17 many as ten years back, two miles north of us, which has
18 not been a problem to us in all of that time.
19 The Lind feedlot, which is about a half mile
20 west of the location of this dairy, has never been a
21 problem to us in any manner like this. It's just in this
22 past couple of years that this has really come about.
23 And I am here to request respectfully that
24 you do not approve of this enlargement because of the
25 nuance effect it is already creating. And it is
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1 anticipated, on my behalf, that it will increase to a
2 much larger extent the bigger that dairy gets.
3 It also, I think, is not good for the
4 neighborhood in terms of numbers of houses and proposed
5 increases in housing that are going to be developed
6 within a two-mile radius of that location. Any
7 questions?
8 CHAIR KIRKMEYER: Does the board have any
9 questions for Mr. Felte?
10 MR. WEBSTER: Harold, I thought you lived
11 south of Severance?
12 MR. FELTE: The residence south of Severance
13 was part of our operation, and we have sold that.
14 MR. WEBSTER: Oh.
15 MR. FELTE: I live one mile north and
16 three-quarters east of Severance on Road 76. We are
17 almost due south, perhaps a quarter mile east of a line
18 due south of the dairy, and the prevailing winds in the
19 evening hours after sundown just about every night are
20 from that direction.
21 And it's providing a very, very
22 unsatisfactory condition for, particularly, my wife.
23 And it's not fun to sit in that strong odor area, even if
24 you're not affected as badly as she is. But if you are,
25 and you cannot rest in bed and you've got to teach school
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1 all day long, it's a sad situation. She would be here
2 testifying herself if she would not be in school teaching
3 today.
4 We get along in the wintertime because we
5 mainly have our windows closed. But from, you know,
6 April on through September, approximately, when you have
7 the windows open trying to rest, get fresh air into your
8 home, this is a severe problem.
9 MR. BAXTER: Just a little question about the
10 time. You mentioned from the time it went in, you've had
11 problems.
12 MR. FELTE: Well, I didn't think we noticed
13 it so badly in the first -- I don't know it must be,
14 what, about four or five years now. It's at least
15 four years, I think, it's been there. I'm not really
16 sure of the years.
17 Is it five? How many years is it? Two.
18 Whatever it is. Anyway, in the last year especially, it
19 was much worse than before.
20 CHAIR KIRKMEYER: Any further questions for
21 Mr. Felte? Thank you very much.
22 MR. FELTE: Thank you.
23 CHAIR KIRKMEYER: Thank you. Is there anyone
24 else in the audience that would like to come forward at
25 this time?
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1 MR. HELLERICH: Is that my cue?
2 CHAIR KIRKMEYER: Yes. If I could have a
3 question for Mr. Lind.
4 MR. HELLERICH: Who does?
5 CHAIR KIRKMEYER: Mr. Lind.
6 MR. HELLERICH: You do?
7 CHAIR KIRKMEYER: Yes. I didn't get to ask
8 it the last time we closed off. It's in reference to
9 crossing the ditch.
10 Mr. Morrison made a comment last time at the
11 last hearing about whether or not Mr. Hirsch needed
12 permission to actually cross the ditch as long as there
13 wasn't any interference that -- something about dominant
14 estate in that he didn't necessarily need permission from
15 the Smith Lateral .
16 And since you're the attorney for the Smith
17 Lateral since you've come here, I 'd like to hear your
18 opinion on that.
19 MR. LIND: Sure. Right now, it would be my
20 opinion, if some type of a structure went under the ditch
21 that did not affect the ditch in any manner, we -- there
22 may not need to be permission. And again, the issue
23 there is, we have no idea what type of a structure or the
24 location of the structure we're dealing with.
25 There are numerous headgates on the ditch.
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1 Some of those headgates go into tile lines that are
2 underground, so I can't tell you. It would depend on
3 what the structure is.
4 If any type of structure crosses the ditch,
5 goes over the ditch, yes, they will need permission of
6 the Smith Lateral Irrigation Company due to the location
7 of the ditch and the maintenance road alongside
8 the ditch.
9 CHAIR KIRKMEYER: Okay. And another question
10 I had and let's see -- H. F. Lind, is that your father?
11 MR. LIND: Yes.
12 CHAIR KIRKMEYER: Maybe I'll just ask him
13 if you don't know or not. It's probably not that big of
14 a deal . But where exactly is the easement for Lind
15 Farms, Inc. ?
16 MR. LIND: If you refer -- the easiest way --
17 to Map No. 47.
18 CHAIR KIRKMEYER: Okay.
19 MR. LIND: You'll see approximately 3 inches
20 from the bottom of that page, immediately north of the
21 retention pond, and going through the four future
22 corrals, you'll see a note that says buried pipeline.
23 That is an underground irrigation tile line which
24 delivers water from the east Smith lateral just right
25 next to where you see the trailer houses over to
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1 Road 23 .
2 CHAIR KIRKMEYER: And how wide of an easement
3 is that?
4 MR. LIND: It's not defined under Colorado
5 law. The amount of the easement necessary for a water
6 structure is that amount of land necessary or required
7 for proper maintenance use and operation.
8 CHAIR KIRKMEYER: Okay.
9 MR. LIND: So it would depend. It's a fairly
10 large tile line. Probably a minimum of 20 feet for any
11 type of repairs or maintenance.
12 CHAIR KIRKMEYER: Okay. Thank you.
13 MR. BAXTER: I have a follow-up question
14 that -- maybe it's a mute point, but in your opinion,
15 then, as the lawyer for this ditch company, they have no
16 right to use the land over the top of that ditch?
17 MR. LIND: That is correct. There's actually
18 no land over the top of the ditch. Or do you mean the
19 tile line?
20 MR. BAXTER: The tile line.
21 MR. LIND: They can use the land over the top
22 of the tile line, the problem is when you construct
23 structures over the top of it. In this case, you have
24 corrals or fences.
25 So if you had, as an example, let's just say,
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1 in one of the two middle corrals, to get into one of
2 those corrals to repair this structure, what do you do?
3 Go through fences? Corrals? What do you do with cattle
4 in there?
5 Yeah, there's no problem with farming over an
6 open one. However, for example, if you -- in farming if
7 a rupture occurs, you have the right to go onto the land
8 to do that. The problem arises when you place structures
9 over the easement.
10 CHAIR KIRKMEYER: Any other further questions
11 of Mr. Lind? Thank you very much for coming back up.
12 Okay. We're back to you, Mr. Hellerich.
13 MR. HELLERICH: Thank you.
14 I 'm going to make a series of comments about
15 the various sections of the zoning code which I think are
16 applicable. And I 'm sure you're familiar with them.
17 But for the record in this particular
18 proceeding, I need to go through those. And I 'd like to,
19 as I indicated earlier, comment on the statutory language
20 of the Water Quality Control Act. I will do that as
21 well . And then comment on how I do not believe that this
22 application complies with the requirements of the zoning
23 code and ask you for a denial of the application.
24 First of all, I'd like to look at the
25 criteria that the county, you, as the board, go through
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1 in assessing this application, that you are well aware
2 of, I'm sure, under Section 24 . 4 . 2 . I 'm reading in the
3 middle of that. And that's on 2025, if you want to --
4 Under 24 . 4 . 2 at the top of page 2025 in
5 particular, I think it's important to factor out of that
6 particular paragraph a number of things. One of them,
7 first of all, is why we have public hearings.
8 And it states in there that the board shall
9 consider the recommendations of the planning commission
10 and from the facts presented at the public hearing.
11 When you take all of that into consideration,
12 that's why I think it's vital that you have a public
13 hearing and you have public input.
14 And I think in this particular application,
15 it's been extremely vital to flush out the problems that
16 have taken place in this application and to get the
17 county and get the state of Colorado involved in this
18 application because there hasn't been truthful
19 information provided.
20 And, in fact, there's been an intent to make
21 false information so he didn't have to comply with the
22 regulations, and now that that has been flushed out, has
23 been found in violation. So that's one of the reasons,
24 I think, you need public input in all aspects of the
25 application process.
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1 It also provides that the county commissioner
2 shall approve unless and only if they find as follows:
3 The applicant meets the standards and conditions of
4 24 . 4 . 2 , 24 . 5, and 24 . 6. And that the applicant has the
5 burden of proving to show that those standards and
6 conditions have been met.
7 And I'm going to go through 24 . 6 in some
8 detail as well as the other sections of the code -- or
9 the zoning ordinances which are, in addition, applicable
10 to confined feedlot operations.
11 First of all , 24 . 4 . 2 , taking a look at --
12 under Section 2 . 3 , that the uses which would be permitted
13 will be compatible with existing surrounding uses.
14 I submit to you that they are not
15 compatible. And there are several reasons for that.
16 One of them, as our exhibit that shows -- the
17 one that we presented today that kind of shows you a
18 picture of the house and lagoon. That lagoon is within
19 400 feet of that existing residence, and that's where it
20 was constructed. I submit to you that is not compatible
21 with the surrounding areas.
22 This lagoon, at least on paper, was to be a
23 non-discharge facility. It is not. I think it's clear
24 from the testimony -- and Victor Sainz agrees with the
25 process we went through for determination of that, doing
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1 the water study of the water -- of the tables, that this
2 lagoon is discharging and it also is seeping or a
3 combination of those two. I submit to you that is not
4 compatible with the surroundings.
5 I also submit to you that it's not compatible
6 because this is too an intense of use. As we have
7 discovered through Mr. Leaf's presentation, there was not
8 adequate ground to accommodate the water that's going to
9 be disposed of, the manure, the solid manure, the waste
10 that's got be to disposed of. And I submit to you that,
11 therefore, it's too an intense use.
12 What we're going to end up doing is either
13 hauling off water, we're going to be hauling off manure,
14 we're going to be hauling feed in, hauling milk out,
15 we're going to have a tremendously intense use of this
16 small piece of property.
17 I will submit to you that the use is much
18 too extreme or too intense for this particular piece of
19 property.
20 I also submit to you under Section 24 . 2 .4 ,
21 where you're supposed to take into consideration the
22 master plans or the representations from affected
23 municipalities. You've had the presentation made by
24 Mr. Klein, the mayor of the town of Severance.
25 And you're also aware that the property next
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1 to this, across the road, is annexed into the town -- or
2 will be annexed into the town of Severance.
3 So you're aware of that, that that
4 application is in process, that the preliminary approval
5 has been given to that, and so you're aware of that as
6 well . And his representation on behalf of the town was
7 that they did not want this application to be approved.
8 I 'd like to direct your attention also to
9 Section 24 . 4 . 2 . 7 , which provides that there is -- has to
10 be adequate provisions for the protection of the health,
11 safety, and welfare of the inhabitants of the
12 neighborhood and of the county in general . I submit
13 to you that is not there.
14 We have a process that these regulations,
15 the CAFO regulations, by all indications are
16 self-implementing regulations. We certainly know that
17 there's not going to be anyone coming forward out of
18 the applicant to acknowledge that he is in violation
19 or acknowledge that the CAFO regulations are to be
20 complied with.
21 In fact, to the contrary, we have evidence
22 just the opposite, and we presented all of that to you.
23 Starting from the very beginning in violation since
24 1995, September.
25 It was interesting the comments and the
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1 questions that the board drew out from the various
2 witnesses that have testified from the public and from
3 Victor Sainz .
4 Comments were that the board of the county
5 does not have the authority to enforce the CAFO
6 regulations, so they're going to rely on the county to do
7 that -- or I'm sorry, on the state to do that.
8 Victor's comments were that we don't enforce
9 them unless someone comes up to us and tells us they're
10 in violation of these regulations. Victor also stated
11 that he doesn't have the staff or the personnel on board
12 to go out and do those inspections.
13 So who is going to do these? Is the county
14 going to approve this and assume that somebody is going
15 to do it when everybody is telling you they don't go out
16 and enforce this?
17 I submit to you that is not adequate
18 protection for the neighborhood or for the county
19 itself.
20 I want to move along to -- the next section
21 that I think is applicable is 24 . 6, and I'd like to
22 make some comments on that, in particular, that's on
23 page 2027 . 24 . 6. 1 says, The applicant for a special
24 review permit shall demonstrate conformance with the
25 following operation standards in special review permit
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1 application.
2 That's where it's supposed to be, in the
3 application. He has to show that to the extent that the
4 standards affected location, layout, and design, and that
5 they're in compliance with those.
6 That's why we asked those series of questions
7 of Mr. Leaf, how are they in compliance or not with
8 location, layout, and design.
9 The applicant doesn't believe any of that's
10 applicable. I submit to you right there it is
11 applicable. And that's why we went through those and
12 showed you line by line, item by item, where they are not
13 in compliance with location, layout, and design. It's
14 defective. The application is not complete.
15 We've got a memo as of last Friday, three
16 pages of additional concerns and comments by your
17 department of health. And now we find out today that
18 tomorrow we're going to meet and try to straighten all
19 that out. How is the public going to have any input?
20 And I submit to you the only reason that
21 these items came to the surface is because of the public
22 input. And now we're going to be shut out if you approve
23 this today. And if you approve it conditionally, we have
24 no input.
25 And who is going to have the input then?
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1 It's going to have to come from the applicant; it's going
2 to have to come from the county staff; it's going to have
3 to come from the state. And I submit to you that's not
4 sufficient protection.
5 I submit you should not do this on a
6 condition of approval because we won't have any further
7 input. And the only reason you got the input you have is
8 because of the public input today.
9 Also if you take a look at that last sentence
10 of 24 . 6. 1, it says, Once in operation, the operation and
11 the uses permitted shall conform to these standards.
12 This has been in operation and it's been in
13 violation since September of 1995. And it has not been
14 brought into compliance. There's been a letter sent out
15 asking them to conform to make compliance as early as
16 August of 1995, August 31st, there's subsequent
17 requirements or requests done in 1996, and, of course,
18 you have a December 2nd letter from the Colorado
19 Department of Health to the applicant in this case.
20 And as you are aware, that cites that he's in
21 significant noncompliance and he has flagrant violations
22 of the CAFO regulations.
23 And as Victor indicated, irregardless of
24 whether you approve this or not, he's still got to come
25 into compliance with that. And I agree with that.
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1 But the real issue is, are we having adequate
2 protections? I don't think there are adequate
3 protections if we do this on a conditional approval
4 without having any further public input.
5 As we indicated as well, the staff here at
6 the county and the staff apparently at the state, does
7 not have personnel on board with the sophistication
8 that's needed to process these types of applications. As
9 Victor indicated, they rely upon the applicant and their
10 professionals to do that.
11 I submit to you we've had the professionals
12 in this case submit it and we don't have the information
13 that's required. It hasn't been submitted even as of to
14 date. And supposedly that's going to happen through some
15 type of plan that will take place tomorrow.
16 I submit to you that is not an adequate
17 protection of the county as well as the neighbors in
18 the area.
19 I want to move on to a couple of other --
20 well, one more comment on that, too.
21 As you will recall, I submitted to you a
22 letter that was November 24th, I believe, as one of them
23 I just submitted today, along with the letter of
24 December 2nd which indicated that the Colorado Department
25 of Health had not received any response to their original
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1 request that was done some time ago.
2 Apparently, Terracon prepared that response,
3 gave it to Mr. Hirsch, and that's as far as it went
4 because it was never submitted back to the Colorado
5 Department of Health.
6 That gives you some idea of the
7 follow-through that takes place when there is some
8 allegations of problems or there are violations that
9 are occurring.
10 Secondly, if you take a look at what was done
11 in review of this particular application. In particular,
12 there was a -- a manure plan was submitted but the plan
13 was submitted with Terracon. And the review that was
14 done by staff here is at the top of this " CK mylor, and
15 we can mark that one as an exhibit.
16 I guess in support of our statement that
17 there isn't adequate staff on board at this point, is
18 the -- the request that was done in reviewing this was --
19 it's a note from Trevor to Jim, Could you take a good,
20 hard look at this. And this is the cover sheet that goes
21 to the material that was submitted by Terracon. Take a
22 hard look at it. Does it comply with the CAFO regs? And
23 Thanks, Trevor. Okay.
24 A review done in response to it is at the
25 bottom. Client dust abatement issues to be addressed?
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1 The rest seems okay, reasonable. And a signature
2 for Jim.
3 That's the review that was done on this
4 application and the material that was submitted by their
5 professionals.
6 The only way the information has come out to
7 you today, the only reason they're now having to come
8 into compliance is because of the public input in this
9 particular case.
10 I think you can see by this that we are not
11 having -- or there's not adequate staff available to
12 review these technical applications, and the state,
13 apparently, doesn't have that ability to do it either.
14 I guess what that leads to is you need to
15 require this particular applicant to demonstrate before
16 you approve any USR that he can do it, that he is doing
17 it, getting in compliance, and that he can perform and do
18 what he says he is going to do.
19 If you take a look at what's happened as well
20 when we had the violation in August of 1995 -- and I'd
21 refer you to our handout or proposal , the booklet, the
22 blue book, take a look at Tab 24 . That's the August 31st
23 letter that went out to the applicant notifying him of
24 the violation.
25 And in the second full paragraph, the second
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1 sentence, it requests that there be a specific plan of
2 correction supplied within five days.
3 If you take a look at the response to that,
4 which is 25, that's a letter to Trevor to the Weld County
5 Health Department from the applicant.
6 CHAIR KIRKMEYER: What number are you on?
7 MR. HELLERICH: 25.
8 CHAIR KIRKMEYER: Now, we're on 25. Sorry.
9 MR. HELLERICH: That's fine. This is his
10 specific plan, back. To avoid a reoccurrence of
11 wastewater runoff, we will closely monitor the
12 application of wastewater on the land. That's the
13 specific plan.
14 I submit to you that's not adequate and
15 that's not adequate protection for the community.
16 I want to move to another section of
17 the zoning ordinances that are applicable to this
18 application, as well , which is the Livestock Confinement
19 Operations. Those are found on page 4022 under
20 Section 45 . 1 -- or 45 in general .
21 I want to take a particular look at 45. 1. 2
22 under handling, shall be -- Manure shall be handled
23 and disposed of in a sanitary manner approved by the
24 Weld County Health Department.
25 I submit that has not been done.
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1 45. 1. 5, Adequate mechanical means for
2 scraping, grading, cleaning of the area shall be provided
3 at all times. And the scraping, grading, and cleaning of
4 the areas will be accomplished as approved by the
5 Weld County Health Department.
6 To my knowledge, that has not been done.
7 45. 1. 6, Drainage facilities or improvements
8 shall be constructed to protect any adjacent rivers,
9 streams, or other bodies of river from pollution as
•
10 approved by the Weld County Health Department.
11 I submit that has not been done.
12 Take a look at Section 47 on page 40-37 .
13 This also is Livestock Feeding Performance Standards,
14 under Section 47 . 1. 1, the last sentence. The manure
15 storage site shall have a watertight surface which does
16 not permit seepage or percolation of manure pollutants
17 into the ground as approved by the Weld County Health
18 Department.
19 To my knowledge, that has not been done.
20 47 . 1. 3 , Feed bunks, water tanks, feeding
21 devices, and associated aprons shall be approved by the
22 Weld County Health Department.
23 To my knowledge, that has not been done.
24 47 . 1. 4 , Adequate mechanical means for
25 scraping, and that's -- it's very similar to the
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1 other one.
2 That, again, to my knowledge, has not
3 been done.
4 47 . 1. 5, Drainage facilities or improvements,
5 and, again, that's similar to the other one. That has to
6 be approved by the Weld County Health Department.
7 To my knowledge, that has not been done.
8 Take a look at the top of page 40-38 . It
9 encompasses the guidelines of what is now called CAFO,
10 where they talk about the guidelines of Feedlot Runoff
11 Containment Facilities.
12 And under 47 . 1. 7, The county can require
13 monitoring ones. I think that's something that needs to
14 be done on this application so that we know -- we
15 certainly know we have a leaking lagoon. We certainly
16 know that that has not been corrected. We don't know the
17 extent of it. I think monitoring those are applicable in
18 this case.
19 47 . 1. 10, Liquid and solid waste shall be
20 stored and removed for final disposal and so forth.
21 That method of disposal shall be approved by the county.
22 Again, to my knowledge, that has not been
23 approved.
24 I 'd like to comment some, too, on the
25 Water Quality Control Act or the Title 25 ; in particular
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1 Article 8 . We've talked a little bit about that
2 previously.
3 25-8-102 sets forth the background of the
4 history of that. And it brings out the legislative
5 declaration.
6 And under paren 1, In order to foster the
7 health, welfare, and safety of the inhabitants of the
8 state, that is declared to be the policy of this state
9 to prevent injury to beneficial use -- uses made of
10 wastewater and to achieve the maximum practical degree of
11 water quality and the waters of the state consistent with
12 the welfare of this state.
13 It is further declared that pollutants of the
14 state waters may constitute a menace to public health
15 and welfare and may create a public nuisance and may
16 be harmful and may impair the beneficial use of
17 state waters.
18 As I cited to Mr. Morrison earlier, under
19 paren 4 , This article and the agencies authorized under
20 this article shall be the final authority and the
21 administration of water pollution prevention, abatement,
22 and control .
23 So they have the final authority.
24 Notwithstanding any other provision, law, no
25 department or agency of the state, and no municipal
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1 corporation or county having jurisdiction over water
2 pollution prevention, abatement, and control shall issue
3 any authorization for the discharge of any pollutants
4 unless it is done in accordance with this article.
5 Under the definition sections of Discharge of
6 Pollutants, means the introduction of additional
7 pollutions into the state waters. A permit is required
8 if you are going to be a discharge facility, and that's
9 provided under Article 5.
10 A point source of discharge of pollutants is
11 considered and this includes a concentrated annual
12 feeding operation, which we have involved in this case.
13 A pollutant includes agricultural waste.
14 The state waters means all surface and
15 subsurface waters which are contained in or flow in or
16 through the state.
17 And water quality standards means the
18 standards promulgated pursuant to this section which is
19 the CAFO regulations, which are incorporated into our
20 county zoning ordinances, which I just referenced.
21 Again, Section 25-8-202 , Subsection 7 (B) (I)
22 says the -- or "B one, roman numeral one, " The division
23 shall be solely responsible for the issuance
24 and enforcement of permits authorizing point source
25 discharges to surface waters of the state affected by
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1 such discharge.
2 With that section and with the prior
3 Section 25-8-102 (4) , I don't believe the county has the
4 authority to proceed forward with that application when
5 they know that this applicant is in violation of the
6 CAFO regulations.
7 25-8-501, No person shall discharge any
8 pollutant into any state water from point source without
9 first obtaining a permit.
10 So there's a permitting process to do that.
11 They have to go through that to -- that should have been
12 a part of this application, quite frankly. They should
13 have complied with that.
14 You cannot discharge -- no such person shall
15 discharge into a ditch or man-made conveyance for the
16 purpose of abating the requirement to obtain a permit
17 under this article.
18 Just to comment, too, under 25-8-506 (2) ,
19 there are some exceptions. There is no exception for
20 this type of operation. It has to be in compliance with
21 these regulations.
22 25-8-601, Any person who engages in the
23 operation without complying or causes pollution to the
24 waters is in violation of this section and is guilty of
25 a misdemeanor on conviction.
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1 Also 25-8-610, Providing false information is
2 a violation, is a misdemeanor violation, as well. I
3 submit to you that's happened in this case, as well.
4 I think I've given you a series of reasons
5 why the -- the application should be denied. Certainly,
6 it's not a complete application. And I think that's
7 required to be done before you can rule on that. I don't
8 know how you are going to make findings, all right, and
9 make conditional findings. I don't think you can make
10 conditional findings.
11 I submit to you that would be inappropriate.
12 That's the only way you can do this if you don't have all
13 the facts before you.
14 As indicated, they're going to meet tomorrow
15 and come up with a plan to revise the whole manure plan
16 that's been submitted.
17 If you take a look at Trevor's memo, which
18 was December 12th dated and, apparently, went to the
19 planning department on December 13th, last Friday.
20 They agreed there were some problems. They
21 agreed that they need to review this. They agreed -- and
22 they list nine different areas of significant problems
23 involved in this application, very significant
24 noncompliance, and talks about this as a preliminary
25 review. We've had this for two years, and we're still
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1 doing a preliminary review.
2 And I submit to you that the last paragraph
3 provides we're going to continue to review it after we've
4 had public input. This whole plan is going to change
5 probably tomorrow or the next day or whenever they submit
6 the plan.
7 We have no opportunity -- if you
8 conditionally approve this, we have no opportunity to
9 review it. You don't have an opportunity to review it.
10 What conditions are you going to make if you don't know
11 what the plans are? How can you make those conditions?
12 I submit to you you can't do that. And if
13 they change the plan next week, you can't come back with
14 any other conditions because you don't have review of
15 that again, unless there's a violation. I submit to you
16 that's the inappropriate way to do that.
17 This is not a case for conditional approval
18 because of the nature of the animal we're dealing with.
19 I agree there are cases when you can do that. I think
20 that's fine. This is not one of those cases. And I 'd
21 like to -- I'll discuss that further in a few minutes.
22 But I want to talk a little bit more
23 about Trevor's memo. He talks about -- well, under
24 paragraph 1, that additional data is needed.
25 We don't know what that data is, and you
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1 don't know what that data is yet. So how do you know
2 what conditions need to be applied?
3 Paragraph 2 , Detailed drainage, we have
4 indicating elevations, flow patterns, surface grades,
5 conveyance must be provided. It hasn't even been
6 provided. How do you know if it's adequate? How do
7 you -- how are you going to judge that? What conditions
8 are you going to make?
9 Paragraph 4 , again, talks about the major
10 problems that they have in the calculations they need
11 concerning the amount of manure production and so forth.
12 Can't rely upon their professional's information that he
13 has given you. Dr. Jerry Olsen wants more -- more
14 information. Must amend the plan to address that.
15 How are you going to review the amended
16 plan? It's not going to happen before you approve it, if
17 you approve it conditionally. I submit to you you should
18 not do that.
19 Next one, No. 5 , talks about the inadequacies
20 there. 50 percent reduction required storage should be
21 reviewed. Again, how are you going to have any input to
22 that if you approve this conditionally today?
23 Paragraph 6, this section indicates that pond
24 curtilage does not meet permeability specifications.
25 Must be addressed if the facility operates under the
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1 concentrated animal feeding operations.
2 How can this facility not operate under those
3 proceedings? I don't know what he means by if they're
4 going to operate under those regulations.
5 The list goes on and on, and you can read
6 it. I 'm not going to -- I'll leave that to the rest
7 of your reading. But there are -- it continues on and
8 on. And I don't know how you can approve it even
9 conditionally when you don't know what the plan is that's
10 being submitted.
11 I want to talk a little bit, too, about
12 the -- there was a lot of questions asked and comments
13 made about that we can approve this conditionally and let
14 the state, then, enforce this.
15 And, certainly, we found out today the
16 state is not going to do that, and they don't have the
17 capabilities of doing that. They don't have the staff on
18 board to do that.
19 But the biggest problem in doing this as a
20 conditional approval is because of the self-implementing
21 regulations of CAFO. As Victor indicated to you, the
22 applicant is required to know this. He's required to
23 come forward to indicate if, in fact, he is involved with
24 the confined feedlot operations regulations.
25 This applicant has demonstrated to you that
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1 he's not going to do that. He knew from the time that
2 the application was submitted and Terracon submitted
3 their report -- if you look back at that, clear back in
4 '93 , that application and the material with that
5 indicates that they were aware of the CAFO regulations.
6 Clear back in '93 , he was aware of that.
7 '95, he has records that he was in violation of that.
8 What did he do with that information?
9 As Victor indicated as recent as 1996
10 meeting with him, he indicated, I only have 600 cattle
11 out there. That clearly was not an accurate
12 representation. And that's what Victor has to rely on.
13 I submit to you that is not a proper
14 projection because you can't rely upon this applicant to
15 be truthful and to submit good information and be honest
16 with the information that's being submitted.
17 The other part of that is when do they have
18 to come into compliance? He certainly has been in
19 violation for a year. The county doesn't have any --
20 I take that back.
21 There is a letter outstanding, but I don't
22 think it's been responded to adequately how they're going
23 to address even the berm situation. Because nothing has
24 been done on that. That's been two months. That was a
25 recommended berm be put in there to at least stop the
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1 immediate problem. And none of that has been
2 done, as well.
3 As I indicated, I think there are cases that
4 can be done on conditional approval . And when I look
5 back at those types of applications and the applicants
6 involved in those types of applications, those are
7 applicants who have come forward to you that have maybe a
8 minor violation as far as numbers, they've outgrown their
9 facility and they need to get approval for larger
10 numbers.
11 They're not in violation of CAFO
12 regulations. They're not in violation of all the things
13 that we cited to you as far as location and design and
14 layout which you are required to approve. That's part
15 of the ordinance that -- that I described to you under
16 Section 24 . 6. 1.
17 You're saying that all those standards have
18 been meet. We itemized the list of where they have not
19 been met.
20 I submit to you that the type of application
21 that has been done where you've done it on conditional
22 approval has been where there's no violation and in the
23 future, there's -- these people aren't even -- probably
24 even in operation. And they can comply with that.
25 There's no violation in those situations.
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1 So I would submit to you that's another
2 reason you should not take this into consideration to do
3 a conditional approval .
4 I also believe and my experience with that,
5 I'm sure the board's is too, that those types of
6 applicants that come in have been straightforward with
7 the county. They've submitted information, as far as you
8 know, that is accurate and correct. They have not
9 withheld or misrepresented information when they have
10 been asked for the information. And that's not true in
11 this particular case.
12 This is not a typical violation. These are
13 major violations. And you know that exists right now.
14 The state has said that. These are significant
15 noncompliance and flagrant violations. And that's not
16 your typical applicant that you approve conditionally.
17 If you're going to approve it conditionally,
18 again, as I have indicated, I don't think that's
19 appropriate because then we have no public input, and
20 you have no input, because we know this plan is going to
21 change. Apparently, it's going to be changing as of
22 tomorrow.
23 There's no adequate protection. And it's a
24 denial of a meaningful hearing, then, to the public, to
25 us, if we're not going to be given the opportunity to
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1 provide input as to what the plans really are when
2 they end up. I submit to you it's inappropriate to
3 approve it conditionally today.
4 What needs to happen in this case -- he
5 doesn't intend to do this for a ten-year period anyway.
6 Deny it. Let him get into compliance and come back when
7 he's got some history, when he's in compliance.
8 There's nothing to stop him from coming back
9 a year or two years from now when he's complied with
10 CAFO. That's the time he needs to come back with this
11 application.
12 If you approve this today and you approve it
13 conditionally, what message are you going to be sending
14 to the rest of the community and to the other applicants
15 that are out there?
16 What am I supposed to tell my clients when
17 they come in on an application? It's okay to violate,
18 don't worry about it, we're going to approve it
19 conditionally anyway, I don't think that's the message
20 that you want to send out there.
21 I think it's okay to do some on occasion
22 when it's an appropriate case to do a conditional
23 approval , but this certainly is not one of those
24 types of applications. There is no credibility of
25 this applicant.
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1 I guess I've indicated our -- our opinion is
2 and our impression is this should be denied. And he
3 should could back with an application when he is able to
4 submit a completed application to you and one that you
5 can rely upon and one that covers all of the bases
6 which is required under the CAFO and all the other
7 regulations.
8 To that extent, in addition to requirements
9 that you've proposed for this one, I suggest that you
10 carry those over to a new application. And we have a
11 suggestion for additional conditions on a new application
12 when that application will be submitted plus an
13 additional development standard for that new
14 application.
15 So I would like to submit those on behalf of
16 the protestants, as well.
17 MR. MORRISON: Your proposed development
18 standard would be JJ. And your -- what's the other one?
19 MR. HELLERICH: These are additional
20 conditions for a new application.
21 MR. MORRISON: The additional conditions
22 would be KK.
23 MR. HELLERICH: I guess in conclusion, too,
24 if I could direct your attention to the mylar where we
25 talked about Trevor's response to this in his memo of
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1 December 12th. If you take a look at the December 2nd
2 letter itself, you'll see that the violations of CAFO,
3 they are flagrant violations with significant
4 noncompliance.
5 We're not just talking about one issue here.
6 We're talking about three different issues. I'm not sure
7 Trevor's memo was clear on that.
8 If you take a look at the different
9 sections -- if you take a look at the first section,
10 you'll see that there is violation of Confined Animal
11 Feeding Operations 4 . 8 . 0 .
12 When you take a look at the second part of
13 it, Misrepresented information related to the number of
14 animals and so forth. And that is another violation.
15 That's a flagrant violation indicated there.
16 Then you take a look, In addition -- and the
17 paragraph below that. So we've got the first paragraph,
18 then it says, Also, you're in violation of this. Then
19 you've got the third one, In addition, you must comply
20 with the compaction for the liner, for the lagoon.
21 They're not in compliance with that either.
22 So we're not talking about one violation.
23 One occasion. We're talking about significant, flagrant
24 violations. And there are a number of those that are
25 outlined in that particular letter.
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1 I think that concludes my comments. And it
2 is my understanding that, if there is new material
3 submitted by the applicant or new information, that we
4 would have an opportunity to comment on that.
5 CHAIR KIRKMEYER: That's correct.
6 Does the board have any questions for
7 Mr. Hellerich?
8 Just real quickly in looking at your
9 Exhibit KK on No. 2 under Additional Conditions,
10 Applicant should provide a comprehensive drainage plan?
11 MR. HELLERICH: I 'm sorry. I gave you all
12 my copies. I don't have one in front of me. No. 2 ,
13 all right.
14 CHAIR KIRKMEYER: Uh-huh.
15 MR. HELLERICH: Yes, plan.
16 MR. MORRISON: I 'm going to interlineate that
17 on the exhibit, if that's all right with you.
18 CHAIR KIRKMEYER: You're going to put that on
19 the exhibit, you said?
20 MR. MORRISON: Yes, I am.
21 MR. HELLERICH: Thank you.
22 CHAIR KIRKMEYER: Okay. Dale, did you have a
23 question? I'm sorry.
24 MR. HALL: It appears to me that that's
25 already included in the conditions, but maybe it's not.
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1 We can have Mr. Jiricek look at that.
2 CHAIR KIRKMEYER: Does anyone else on the
3 board have any questions for Mr. Hellerich at this time?
4 Okay. Thank you very much.
5 MR. HELLERICH: Thank you.
6 CHAIR KIRKMEYER: Is there anyone else in the
7 public who wishes to come forward at this time?
8 Seeing no one, I'll close the public
9 hearing. Before we go into any type of rebuttal , I have
10 a question for Mr. Morrison.
11 Mr. Hellerich pointed out that 25-8-102 (4)
12 about the county not having authority to approve a land
13 use approval when they're discharging a pollutant. I
14 guess I 'd like to hear your opinion on that. Have you
15 had the opportunity to look at that?
16 MR. MORRISON: Yeah, I looked at -- I tried
17 to track Mr. Hellerich's citations. Basically, there
18 were a couple of issues. One is, that section says,
19 basically, local governments don't have -- or some other
20 portions of the state government, unless the statute
21 says otherwise, do not have the authority to issue
22 discharge permits.
23 So that you -- you can't authorize discharge
24 where Water Quality Control Commission or division has
25 not done so. These regulations are intended that there
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1 not be a discharge to state waters. So we're talking
2 about a situation that's not what you're dealing with.
3 Secondly, the reference in the planning
4 commission recommendation is that they comply with state
5 rules. So you are not authorizing a discharge in
6 violation of state rules.
7 There is the implication that -- so I think
8 that's a little misdirected to talk about discharges
9 when -- and Mr. Jiricek can correct me if he has a
10 different concept of this. But these regulations are
11 intended to address this situation where there is a
12 retention of the wastewater on-site and an avoidance of
13 discharge to state waters.
14 The other thing is -- in fact, the state has
15 taken the position that with respect to agricultural
16 waste -- it's 25-8-504 . That the state's position is
17 that they will require permits only to the extent that
18 the federal government absolutely requires it. And that
19 they are not requiring discharge permits for agricultural
20 waste, except to the extent that the federal government
21 requires it.
22 So there is, in fact, an exception, at
23 least a conceptual exception, in the regulations that
24 agricultural waste are not to be regulated unless
25 absolutely required.
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1 CHAIR KIRKMEYER: Aren't we requiring
2 someplace that this is a no-discharge facility, however?
3 MR. MORRISON: That's what the -- that's what
4 the CAFO regulations deal with. If this were a site with
5 a discharge permit, we wouldn't be talking about those
6 regulations, we'd be talking about them getting a
7 discharge permit from the commission or the division.
8 And there would be standards on that discharge based on
9 the receiving waters.
10 CHAIR KIRKMEYER: Okay. And I thought I had
11 mentioned this before. Maybe I should just make sure
12 that it's clear. The county does have the ability to
13 enforce our own conditions of approval and development
14 standards?
15 MR. MORRISON: Yes.
16 CHAIR KIRKMEYER: So if we put in our
17 conditions that they must comply with the CAFO
18 regulations, then we can make sure -- we can ensure
19 that they do comply with those?
20 MR. MORRISON: That is true. The difficulty
21 with that is the ultimate -- we can't reach a conclusion
22 that's different than the state health department as to
23 compliance.
24 So sometimes there's a timing issue we ran
25 into in another case where -- it had to do with air
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1 quality but similar situation -- where the issue was not
2 finally resolved before the state board authority. And
3 therefore, you couldn't take an enforcement action until
4 the state had concluded their enforcement proceedings
5 based on that state regulation.
6 So you can't independently conclude
7 something's a violation and revoke the local land use
8 permit if the state -- if that's inconsistent with the
9 state agency's determination in that manner.
10 So you can enforce it, but you still have to
11 be inconsistent with the state's final determination.
12 MS. HARBERT: But we could -- we could
13 pull the permit if they didn't comply to whatever our
14 conditions were?
15 MR. MORRISON: Well, our conditions that
16 don't rely on the state regulations --
17 MS. HARBERT: But if they --
18 MR. MORRISON: Yes. And we could if they
19 violated the state. It's more of a timing issue than an
20 enforcement issue.
21 MR. HARBERT: I understand that part of it.
22 CHAIR KIRKMEYER: Let me ask you another
23 question, also. Section 47 in the zoning ordinance. Are
24 they supposed to be complying with that presently?
25 MR. MORRISON: My understanding of that is
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1 that they -- those standards do apply to any livestock
2 containment operation.
3 CHAIR KIRKMEYER: This just says anyone
4 feeding livestock.
5 MR. MORRISON: Well , then it goes beyond
6 livestock containment operation. It was intended, I
7 believe, to be a general standard to avoid nuisances
8 with -- with livestock feeding.
9 CHAIR KIRKMEYER: If in -- prior to recording
10 the plat, we were to add in about Section 47 , that the
11 facility had to demonstrate compliance with our own
12 Section 47 in addition to the CAFO regulations, we
13 would -- obviously, we would be able to enforce that.
14 And we could revoke a permit based on noncompliance with
15 our own sections and our own zoning ordinances.
16 MR. MORRISON: Right.
17 CHAIR KIRKMEYER: And it wouldn't require for
18 us to basically make sure they're in compliance and the
19 state agrees with it.
20 MR. MORRISON: That's correct. Now, it is in
21 Development Standard No. 7 . It's not in the condition.
22 But it is in the Development Standards that Section 47 be
23 complied with.
24 CHAIR KIRKMEYER: The problem with it only
25 being a development standard is it's not prior to
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1 recording the plat, and they would be able to move
2 forward with the operation and not necessarily be in
3 compliance.
4 MR. MORRISON: There's some additional
5 leverage, yes, the county has, if it's prior to recording
6 the plat.
7 CHAIR KIRKMEYER: Okay. Thank you. Does the
8 board have any questions for Lee?
9 MR. BAXTER: Well, I guess I need a
10 clarification. I don't know if the board makes the
11 determination at some point, but -- I don't know if this
12 is the appropriate time either, but sometime maybe before
13 the applicant speaks again -- an assertion's been made
14 that our own county health department, and maybe the
15 state by inference, doesn't have the expertise needed to
16 make the rulings on this.
17 I 'd like at least some comment from the --
18 from the health department or someone before we can go
19 into the applicant's presentation. I would assume what
20 they would say, but --
21 MR. CHILSON: That's going to be part of our
22 presentation.
23 MR. BAXTER: Well, maybe, if it's going to
24 be covered, that's sufficient. But I think that needs
25 answered.
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1 CHAIR KIRKMEYER: I think, Mr. Baxter, if
2 it's not sufficient of an answer for you, that we have
3 the opportunity to have our own staff come up and ask
4 them that question.
5 MR. BAXTER: All right. I 'll refer to
6 it later.
7 CHAIR KIRKMEYER: Okay. Does anyone have any
8 more questions for Lee?
9 Okay. Mr. Chilson.
10 MR. CHILSON: Mr. Jiricek, would you come up
11 to the microphone here.
12 MR. JIRICEK: Can I sit?
13 MR. CHILSON: Sure.
14 CHAIR KIRKMEYER: How about you go ahead and
15 state your name and department for the record.
16 MR. JIRICEK: Sure. Trevor Jiricek,
17 Weld County Health Department.
18 MR. CHILSON: Mr. Jiricek, you've heard
19 Mr. Hellerich and Mr. Leaf in their presentations?
20 You've been in the room?
21 MR. JIRICEK: Yes, I have.
22 MR. CHILSON: Okay. CAFO and the county
23 health regulations will be enforced and Mr. Hirsch's
24 compliance therewith ensured regardless of the outcome of
25 this permit; is that correct?
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1 Regardless of the board's decision on this
2 special use permit, CAFO and the county health
3 regulations will be enforced and Mr. Hirsch's compliance
4 therewith ensured by your department; is that correct?
5 MR. JIRICEK: That's correct.
6 MR. CHILSON: Okay. So that has absolutely
7 no bearing on the issuance of this permit, does it?
8 MR. JIRICEK: I don't believe so.
9 MR. CHILSON: Now, I want to give you full
10 opportunity just to respond however you want to to the
11 allegations made by them that your department is
12 incompetent, ignorant, and incapable of doing your job in
13 this case and that you need Mr. Hellerich and Mr. Lind's
14 help. Is that an accurate statement?
15 MR. JIRICEK: I don't believe that's an
16 accurate statement. I won't go into much detail. I did
17 find it a little amusing. I think our staff is very well
18 competent. It's not rocket science.
19 I think Mr. Hellerich read through the
20 regulations with you. And I think each of you can go
21 through that, and you can determine for yourself.
22 In reference to the overhead that was
23 provided that had my handwritten comments, I think
24 comments are available in the file, were probably copied
25 by Mr. Hellerich's client, and I think he read off
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1 comments that our staff provided to you last week.
2 Anyway, I don't need to go into too much
3 detail. I do think our staff is competent enough. We
4 have demonstrated in the past with other similar
5 facilities to make a determination on these manure and
6 wastewater management plans.
7 CHAIR KIRKMEYER: If I may, can I ask a
8 further question? Could you tell us what kind of
9 involvement Weld County Health Department or any of the
10 planning staff or anyone from Weld County had in the
11 development of the CAFO regulations.
12 MR. JIRICEK: Actually, a previous director
13 sat on that committee and submitted comments during that
14 entire process.
15 CHAIR KIRKMEYER: And that -- that would be
16 Mr. Pickle?
17 MR. JIRICEK: No, Mr. Wes Potter.
18 CHAIR KIRKMEYER: Potter. Did your
19 division supervise or participate at all in any of
20 those regulations or in any of the Clean Air and
21 Water Act provision?
22 MR. JIRICEK: I don't recall .
23 CHAIR KIRKMEYER: Commissioner Webster, did
24 you want to make a statement?
25 MR. WEBSTER: I might clarify that originally
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1 I was with the original group that helped write the
2 regulations, 1960 something.
3 MR. JIRICEK: If I could add one more
4 comment. In regard to our technical expertise, it is
5 important to note that we have recently signed a
6 memorandum of understanding with the state health
7 department, where if we have a technical question --
8 Victor Sainz , who is a registered professional engineer
9 in Colorado has assisted us on those questions.
10 And actually his -- he probably wouldn't want
11 his supervisors to know, but he's been doing that for us
12 for years. If we had a question, we could go to him and
13 he can provide us with advice.
14 CHAIR KIRKMEYER: Sorry to interrupt.
15 MR. CHILSON: Oh, anytime you wish.
16 One last question, Mr. Jiricek, you are
17 familiar -- as a matter of fact, I think you authored
18 many of the conditions of approval recommended by staff
19 on this special use permit if it were granted.
20 Is that correct?
21 MR. JIRICEK: That's correct.
22 MR. CHILSON: Do you have any concerns
23 whatsoever that the conditions that you have developed
24 are inadequate to protect health, safety, and welfare if
25 this permit is granted?
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1 MR. JIRICEK: I think we have a fairly
2 comprehensive set of -- a fairly comprehensive
3 recommendation.
4 MR. CHILSON: That's all the questions I have
5 of Mr. Jiricek.
6 CHAIR KIRKMEYER: Okay.
7 MR. CHILSON: Unless there are other
8 questions of the board.
9 MR. BAXTER: I have one just to follow up a
10 little further on the -- in my mind what was being said
11 earlier about the health department was that there were
12 times when it had to do with engineering type things,
13 drainage, aquifers, a number of different things, that
14 the health department didn't have access or didn't know,
15 or whatever, what they -- that you couldn't come up with
16 those or had any problem coming up with things that would
17 answer those questions.
18 Do you feel like you have everything that you
19 need to make those or access to everything?
20 MR. JIRICEK: Yeah, I do. Not only do we
21 have access to our district engineer of the state, we
22 have staff who have taken numerous graduate courses on
23 those topics. I do think we have access both on our
24 staff level and at the state level to address all
25 concerns.
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1 MR. CHILSON: You also, Mr. Jiricek, have
2 access to the Colorado Geological Survey, do you not?
3 MR. JIRICEK: Yeah, that's correct. And Jeff
4 whispered in my ear, we also have access to, not only an
5 engineer but a geologist in the solid waste division of
6 the state health department, and they have been of
7 assistance to me many times in the past.
8 CHAIR KIRKMEYER: I have a further question
9 for you, Trevor, and also another direction.
10 Exhibit KK, which was the Development
11 Standards and Additional Conditions of Approval as
12 submitted by the proponents, Mr. Hellerich, I guess --
13 I want to make sure that you look at those because I
14 am going to ask you questions about that afterwards --
15 after Mr. Chilson is done.
16 The other question I have to do though is
17 with -- several of the conditions state things that the
18 Weld County Health Department will review and approve.
19 Can you tell us just real briefly the process that you
20 go through in approving a wastewater handling plant or
21 manure runoff handling plant.
22 MR. JIRICEK: Sure. We go through every
23 aspect as it's presented in the reg. We use the reg as
24 the standard. We don't, typically, go above and beyond
25 the regulation, but we go through each point as it's
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1 required in the reg and comment appropriately.
2 CHAIR KIRKMEYER: And in the past on other
3 special use permits when things of this nature have been
4 required for your review and your approval, have you
5 allowed the public to comment? Have you invited the
6 public in for comment? I mean . . .
7 MR. JIRICEK: The one that jumps out at me is
8 the one that Mr. Leaf referred to, USR 1092 , which was
9 Mohawk. And maybe it might be more appropriate to have
10 my director, Jeff Stoll, address that since he was the
11 one who dealt with the public in that matter -- in
12 that case.
13 I personally can't recall how we got to the
14 point where the public was -- played the -- the major
15 role that they did in the development of that.
16 CHAIR KIRKMEYER: But the point is the public
17 did -- was involved and did play a role in helping you
18 with your approval and your review of several plans?
19 MR. JIRICEK: Absolutely.
20 CHAIR KIRKMEYER: Okay. Thank you. Okay.
21 Anyone have any further questions for Trevor?
22 MR. RAU: For the record, my name is
23 David Rau. I 'm with Terracon Environmental .
24 1609 Oakridge Drive, Fort Collins, Colorado.
25 If the commissioners wish to take a break,
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1 just let me know. I will try not to have as lengthy of
2 comments as you've experienced.
3 CHAIR KIRKMEYER: Well , I guess I just have
4 to make the statement that Commissioner Webster needs to
5 leave by 3 : 30 because he has family commitments that he
6 cannot miss.
7 MR. RAU: Okay. We'll try and wrap it up
8 before then.
9 I think what you've heard today was sort of
10 an alarmist presentation of very carefully selected facts
11 and distortions of the truth. There have been a lot of
12 allegations made regarding my reputation.
13 I'm a Colorado Registered Professional
14 Engineer, and I take that very seriously. Our position
15 is to be objective and to provide technical advice and
16 opinions with regard to engineering issues, not to be
17 advocates for our clients. And I think that's a very
18 important thing to keep in mind.
19 Many of the documents that you've seen
20 thrown in front of you saying, oh, The pond is out of
21 place. This wasn't considered. The borings weren't
22 here, et cetera, were planning documents.
23 The way this process works, back in '93 , we
24 prepared a planning document for Mr. Hirsch before any
25 improvements were made. The location of the pond did
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1 move over time, depending -- or it was moved, based on
2 the fact that there were subsurface structures that
3 interfered, the locations of corrals changed, et cetera.
4 I think the fact that plans and
5 specifications weren't prepared is immaterial and
6 consistent with normal engineering practices and, I
7 think, consistent with what the commissioners usually
8 see. And I think it's consistent with what Mr. Leaf
9 typically does. And he stated so.
10 There is a lot of confusion with regard to
11 the regulations. I think the commissioners experienced
12 that last time we met.
13 There's confusion with regard to Weld County
14 regs, concentrated feedlot -- or concentrated feeding
15 operations and confined feeding operations.
16 Based on my experience with Mr. Hirsch, I
17 think that's what occurred with regard to animal count.
18 He did not understand the distinction between
19 a milking cow and a calf from the CAFO regulations
20 standpoint. 1. 4 times any animal is confusing, I think,
21 to anyone in the agricultural business. A cow is a cow
22 is a cow, not 1. 4 cows.
23 And I believe the commissioners did
24 experience that firsthand at the last meeting. There
25 is a lot of confusion.
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1 We made Mr. Hirsch aware of the distinction
2 this summer, and I think he has been very forthcoming
3 with information with regard to that.
4 Off-site -- I'm going to go through now point
5 by point, I -- well, no, let me restate that. I 'm not
6 going to go through point by point, I 'm going to point
7 out some of the more significant discrepancies in areas
8 where I think the commissioners have been misled.
9 One, I think off-site discharges shall not
10 occur with the insulation of tailwater pond system as
11 planned for the site.
12 There was much to-do about the locations of
13 exploratory borings. I think if you look at the
14 submittal that was made earlier, I think it's Exhibit CC,
15 the x's on this drawing are incorrect.
16 We have tried to reconstruct what Mr. Leaf
17 has done. It has been difficult since he has not been
18 willing to put his name and stamp on any of the opinions
19 he's presented.
20 But the best we can tell , he used the
21 location -- the former location of the field road to
22 measure off to find these boring locations, and he is
23 showing them in the incorrect place. We went back to our
24 original field logs to look at the boring locations. We
25 were concerned when these issues were brought up because
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1 none of the drawings we had showed the borings where he
2 had shown them. They are all consistent.
3 I think it's important to talk about the
4 purpose of exploratory borings. And they are exactly
5 that. They're exploratory borings to gain information
6 about the subsurface conditions at the site. We found
7 the conditions west of the Smith lateral to be extremely
8 consistent.
9 There is typically a loam overlying a
10 sandstone-siltstone bedrock, and it's shown over and over
11 again in our boring logs. This siltstone-sandstone
12 layer, we never did drill through the bottom of it. And
13 in places we found it 10 feet thick because we drilled
14 10 feet into it. We never did drill through it.
15 This is important because this was basically
16 the basic material from which the pond was constructed.
17 The surface materials shown on SES maps have nothing to
18 do with the construction of this pond. Those discussions
19 have to do with whether you can use this particular
20 material by itself with no additions to make a pond or a
21 lagoon.
22 The materials that we had recommended
23 Mr. Hirsch use, tested to be, in many cases, a hundred
24 times less permeable or tighter than required by the
25 regulations.
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1 There was much to-do about the extended
2 period of time between when the borings were completed
3 and when water level measurements were made. I think
4 Mr. Hellerich made those comments.
5 I thought that was amusing in that with low
6 permeability materials, one should wait a long time to
7 get stabilized water levels. It doesn't take a rocket
8 scientist to figure out that a tight, low permeability
9 material will release the water slowly and it takes it a
10 long time to rise in the bore hole.
11 The exploratory borings were not completed in
12 the exact footprint of the lagoon. They were completed
13 in the originally planned location of the lagoon. It was
14 later moved slightly south because of conflicts with the
15 easement to the Lind Farms property.
16 It was also reconfigured during construction
17 consistent with our recommendations, in that they ran
18 into some soft spots. What they did was they made the
19 pond shallower and wider.
20 Mr. Hirsch did not have us on-site during
21 construction. It was a classic example -- and we run
22 into this a lot -- of a small businessman trying to save
23 some money. I think he's learned from that effort. I
24 don't think he saved any money at all, but that's all he
25 was trying to do.
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1 We did go back into the pond after it was
2 constructed this summer and actually collect samples from
3 the pond itself. For the most part, those in-place
4 samples confirm that the pond meets the regulations.
5 There's a short section on the south side
6 where the permeability does not meet the regulations.
7 And that's what we are to meet with Trevor and Mr. Sainz
8 about. It's not to rework the manure and waste
9 handling plan as allocated; it's to develop a schedule
10 for implementing recommendations included in our
11 management plan.
12 And if you look at our letter response to the
13 state, it basically says we're going to implement what's
14 described in the plan. So there is no new information
15 there with regard to lowering the permeability on a
16 southern -- a portion of the southern section of the berm
17 of the pond.
18 I think there have been a number of
19 photographs that have been presented that you need a
20 little background on.
21 These two photographs were used at length to
22 show that the pond intercepts the water table.
23 MR. CHILSON: Would you mention the exhibit.
24 MR. RAU: It's Exhibit 0. If you look
25 closely at Exhibit 0, you can see the runoff. This is
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1 after a storm event. This pond did exactly what it's
2 supposed to do. The water flowed into the pond and the
3 pond held the water.
4 That's what a detention-retention pond is
5 to do. And I think you have been misled in what
6 this means. This water was removed from the pond and
7 construction continued. This is a typical construction
8 event.
9 There was much to-do about an aquifer. There
10 are many layers of aquifers. Many layers of groundwater
11 in the subsurface. At this site, there is surficial soil
12 overlaying basically what we call an aquatard or an
13 aquiclude. A soil layer that does not allow water to
14 easily move through it.
15 Mr. Leaf sometimes says the site overlies a
16 designated groundwater basin. At other times he says,
17 it's on the edge of it, depending on what position he's
18 trying to take.
19 The reality of it is the designated
20 groundwater basin is not really developed for the
21 groundwater that's observed at this site. The
22 groundwater that's observed at this site is shallow and
23 perched on top of the sandstone-siltstone bedrock. There
24 is no quantity of water with which you could withdraw it
25 and use it for any valuable purpose.
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1 The manure storage area. Much to-do was made
2 about the manure storage area. Mr. -- well, basically,
3 Trevor and Victor made a site visit at the end of
4 September. We discussed a number of issues.
5 One of them was the placement of the manure
6 storage area. Victor and Trevor asked and recommended
7 that it be moved farther south. It was moved within a
8 matter of two weeks.
9 In fact, it had been moved before the letter
10 dated October 22 , 1996, from the Colorado Department of
11 Health and Environment. So the whole issue of the manure
12 pond, I think is -- or the manure storage area is moot.
13 There is a ditch that Mr. Hirsch carved
14 between the manure storage area, the corrals, and the
15 improvements south of the commodities area to prevent
16 water from reaching the Smith lateral . And that does
17 show up in Photograph 32 .
18 CHAIR KIRKMEYER: Photograph 32?
19 MR. RAU: Yes.
20 CHAIR KIRKMEYER: Where is that one at?
21 MR. RAU: It's one of these.
22 The fact that the pond -- the manure storage
23 area shows up in this photograph here -- it had been
24 moved at the time this photograph was taken, and you can
25 see that it's stored over by the straw, but south of the
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1 commodities area. It had been moved south at that time.
2 And there is a ditch that runs on the east
3 side of this road to carry all the runoff from those
4 corrals and the manure storage area.
5 CHAIR KIRKMEYER: And when was that ditch
6 constructed?
7 MR. RAU: Well, it was constructed before I
8 made a site visit in August. I know Jake can probably
9 tell you when it was being constructed.
10 MR. HIRSCH: It was put in there when the
11 place was built.
12 CHAIR KIRKMEYER: Sir, I'm sorry, you'll need
13 to repeat that into the microphone for the record.
14 MR. RAU: Oh, it was constructed when the
15 dairy first went into operation.
16 CHAIR KIRKMEYER: And that's two years ago?
17 MR. RAU: I believe so.
18 There was much made about the fact that a
19 structure would have to cross the Smith lateral ditch.
20 If you look closely at the drawings we've presented, the
21 plan was to cross the Smith lateral where the Smith
22 lateral goes underground. There's a significant portion
23 of the Smith lateral that's underground. It's in a
24 pipeline. And that's where the crossing had been planned
25 to occur.
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1 So there are no plans to run a conveyance
2 structure over the top of the ditch or undermine the
3 ditch as the ditch is in a pipe buried below the ground
4 at that point.
5 Mr. Leaf stated that there were no runoff
6 volumes presented in the plan. That was one of the
7 plan's many inadequacies.
8 I refer you to page 6 . The last lines states
9 that runoff calculations indicate that 17 . 8 acre-feet of
10 water will be generated as runoff during a 25-year,
11 24-hour storm.
12 Mr. Leaf presented this cross-section showing
13 the conveyance structure and how large it would have to
14 be to carry the storm water.
15 There are a number of problems with this.
16 Number one, he used the wrong area because he didn't
17 account for the fact that the manure storage area had
18 been moved, so the tributary area is much smaller.
19 Number two, I 'm not sure why he did this, but
20 he shows a slope of 3 feet per 10, 000 lineal feet of
21 ditch. This is a rather flat ditch. And as a engineer
22 who designs storm water conveyance structures, this is
23 just ludicrous. The ditch would have a much steeper
24 slope than that.
25 There is a lot of discussion about how much
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1 nitrogen would be generated at the site and the fact that
2 the site could never be farmed in a manner which would
3 uptake all that nitrogen.
4 I refer you to page 11. Section 3 . 3 of our
5 plan states, All manure will be hauled off-site. And it
6 should be noted that this is when the facility is at full
7 capacity; that is at 2 , 000 cows.
8 Let's see, in closing, I don't take the
9 comments that were made very lightly. Mr. Hellerich has
10 stated over and over again that we have made false and
11 misleading statements. That's not how we operate our
12 business and that's not how I practice engineering and
13 I resent that statement.
14 We've never hid information or purposefully
15 misled anybody throughout this process. We've provided
16 Mr. Hirsch with recommendations intended to have him
17 comply with the regs and to protect human health and the
18 environment.
19 I also wanted to point out that the state can
20 shut down the facility with due process. Again, the
21 statement was made, I think, erroneously, that Mr. Sainz
22 said he could not shut the facility down. That is not
23 what I heard him say.
24 Our experience has been that the state will
25 first try and gain compliance. If that does not occur,
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1 they will use all the tools necessary to either gain
2 compliance or shut a facility down.
3 It's obvious that Mr. Leaf didn't read the
4 plan very well or objectively. And I also felt like he
5 spent a lot of time after lunch retracting his statement,
6 which was basically in answer to a question, would this
7 facility be able to operate within the CAFO regulations.
8 The answer was yes. I think there was about
9 an hour spent after lunch trying to, basically, change or
10 reverse that opinion or that statement.
11 I would like the commissioners to consider
12 the difference between conceptual plans and plans and
13 specifications. It is very expensive to prepare plans
14 and specifications in final design.
15 The way these projects are typically handled
16 is conceptual designs and plans are put together,
17 approval is received, and at that time, an owner invests
18 the time and money to develop detailed plans and
19 specifications for construction. This is not unusual
20 at all .
21 In our opinion, the process is that our
22 job will be to engineer systems which comply with all
23 state, county, and local regulations to protect human
24 health and the environment.
25 Again, the meeting tomorrow is to develop a
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1 detailed list of the documentation necessary to show
2 compliance with the CAFO regulations and to develop a
3 schedule for getting the pond to meet the permeability
4 requirements.
5 And I would also like to point out that, in
6 my professional opinion, if the commissioners were to
7 approve this special use permit, they are not authorizing
8 a discharge to groundwaters or surface waters of the
9 state, in fact, the conditions tied to the approval are
10 designed to prevent discharges.
11 And with that, I'd like to answer any
12 questions you might have.
13 CHAIR KIRKMEYER: Sure. First of all, how
14 long have you been the engineer for Mr. Hirsch?
15 MR. RAU: Since fall of 1993 .
16 CHAIR KIRKMEYER: Are you familiar with the
17 CAFO regulations?
18 MR. RAU: Yes, ma'am. In fact, we submitted
19 the first CAFO permit approved by the State of Colorado.
20 CHAIR KIRKMEYER: So then you are able to
21 determine or you know animal units and what's a confined
22 feeding operation?
23 MR. RAU: Yes, ma'am.
24 CHAIR KIRKMEYER: Well , you know, to me the
25 question isn't -- I mean, yeah, I think you can put in a
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1 lot of money and put in a lot of investment and get up to
2 compliance.
3 My question is, why hasn't the operation been
4 in compliance? I mean, why didn't you consult your --
5 Mr. Hirsch and tell him that he wasn't in compliance with
6 the regulations or get him into compliance?
7 MR. RAU: Originally, we did some work in
8 1993 and developed a plan, that I think you've seen, that
9 was published in December 1993 . At that time, Mr. Hirsch
10 had intended to run a concentrated feeding operation
11 rather than a confined feeding operation.
12 At that point, he brought on a firm called
13 Five G Consultants, who specialize in designing dairy
14 installations. Mr. Hirsch had Five G's handling things
15 for him until we were contacted again in January. I
16 think it was January 1995 .
17 And at that point, we had just been brought
18 back onto the project so there was a hiatus of our
19 involvement. And at that point, we started providing
20 recommendations to Mr. Hirsch; that, one, he needed to
21 get a special use permit and needed to comply with the
22 different set of CAFO regulations.
23 CHAIR KIRKMEYER: So when you said, in your
24 opinion, it's -- it's possible for them to get into
25 compliance, how long do you think that would take for
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1 them to get into compliance without increasing
2 their herd?
3 I mean, they're over a thousand head right
4 now of -- of what we call animal units, you know, a cow
5 is a cow kind of thing. How long -- and approximate
6 cost, how much investment is Mr. Hirsch going to have to
7 be required to get into compliance before he could even
8 start expansion?
9 MR. RAU: I have not done any detailed cost
10 estimates. So what I'm providing you is just preliminary
11 and is just sort of off the top of my head and based on
12 experience, but I suspect he's going to have to invest on
13 the order of $10, 000 at the facility.
14 Based on the time of year it is, I am leery
15 of trying to do the type of dirt work necessary to line
16 that pond this time of year. Anyone who stepped outside
17 at lunch knows there's going to be serious problems with
18 freezing soils and frost. So my best guess is earlier to
19 late this spring.
20 CHAIR KIRKMEYER: So you are suggesting that
21 he line the pond?
22 MR. RAU: Basically. I want to be clear what
23 lining is. I think most people consider lining -- to see
24 some piece of plastic or concrete go in.
25 CHAIR KIRKMEYER: Well , I 'm pretty familiar
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1 with landfills. I guess I'd like to know what kind of
2 lining you're recommending.
3 MR. RAU: We are recommending that native
4 soils at the site be used and mixed with the clay that's
5 available on-site and used to develop the liner.
6 Basically, we can use on-site soils on the one area of
7 the pond that fails and bring its permeability down to
8 the point that it complies with the regulations.
9 If that fails, then he's looking at a liner
10 over a portion of the pond.
11 CHAIR KIRKMEYER: So the pond, where you
12 have it located now, is in the No. 52 , as you see on
13 Exhibit CC, Map No. 1, an Otero sandy loam? Or
14 it isn't?
15 MR. CHILSON: Yes, but what -- that sandy
16 loam is a very thin layer. And what forms the bottom
17 of it and sides of the majority of the pond is the
18 sandstone-siltstone below that sandy loam. And in one
19 area of the pond --
20 CHAIR KIRKMEYER: So you have done testing?
21 You have done some bores in the pond?
22 MR. RAU: Oh, we were out and we collected a
23 sample from right about there and ran permeabilities on
24 it. And it was very much in compliance with the
25 regulations.
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1 There's a small section of the pond here that
2 just cut into the native soils. It's where the sandy
3 loam forms a portion of the pond that needs to be
4 improved.
5 CHAIR KIRKMEYER: And when did you do those
6 test bores?
7 MR. RAU: It was August, October.
8 CHAIR KIRKMEYER: And did you actually do
9 test bores out in the middle of that pond?
10 MR. RAU: Yep. You can ask our technician
11 about it. It was not with a drill rig. We pushed a
12 Shelby tube and pulled a sample and took it back to the
13 lab and ran permeabilities on it.
14 MR. MORRISON: Given the amount of testimony
15 that's been on that issue, I think it would be good if
16 the witness were to demonstrate that on -- and possibly
17 mark the record because --
18 CHAIR KIRKMEYER: Where the test bores
19 actually were?
20 MR. MORRISON: Right. If you can -- I'm not
21 sure which exhibit he used.
22 CHAIR KIRKMEYER: I believe it's CC No. 1.
23 This one has soil descriptions on it.
24 (Pause)
25 CHAIR KIRKMEYER: And it was your
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1 recommendation to put the pond in that area?
2 MR. RAU: Our original plan put the pond
3 generally in that area. It was moved slightly south and
4 a little bit west during construction and finalization of
5 the drawings. There are also written descriptions of
6 where those samples were collected in Appendix C of the
7 plan that was submitted to the county. So none of this
8 is new.
9 CHAIR KIRKMEYER: So you've collected those
10 borings though -- those samples after the pond was
11 already there?
12 MR. RAU: Yes, ma'am.
13 CHAIR KIRKMEYER: Because my other question
14 is why -- why didn't you put the pond -- why did you put
15 the pond so close to a residence?
16 MS. HARBERT: Right. That's my question, too.
17 CHAIR KIRKMEYER: I mean, 175 acres or 180
18 acres, whatever he has here, close to 200 or something --
19 MR. RAU: Because that's the low spot on
20 the property and all the drainage will naturally make its
21 way there.
22 CHAIR KIRKMEYER: Well , it looks to me like
23 from the topography that that's not the lowest spot on
24 that -- on the area.
25 MR. RAU: Yes, that area is generally the low
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1 spot. I think the lowest spot is right here.
2 CHAIR KIRKMEYER: Where's the topo maps? Do
3 you have one in your application?
4 MR. RAU: Yeah, there is one in our report.
5 Actually, the lowest spot was probably
6 right here.
7 (Discussion among participants)
8 MR. RAU: The lowest spot is adjacent to the
9 pond to the north.
10 CHAIR KIRKMEYER: Okay. Could you show me,
11 where are your topo maps.
12 MR. RAU: I believe it's in our report,
13 Appendix A.
14 Originally, the pond was shown farther from
15 the residence. But it moved closer to the residence,
16 basically without our involvement, but due to
17 constructability issues.
18 MR. WEBSTER: There is a ridge that comes
19 right down the road on the -- on that -- next to the
20 present retention pond and a field to the south. The
21 southwest corner --
22 MR. RAU: Yes, sir, where it says 52 .
23 MR. WEBSTER: -- it says 52 . That field
24 right there. Why didn't you lap it over on that side
25 when your -- when your drainage line was coming right
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1 down that ridge anyway, why did you take it to the north
2 and not take it to the south and take it into the corner
3 of that farm which would have put it quite a ways away
4 from -- at least not within 400 feet of that residence
5 on -- on that farm?
6 MR. RAU: That's something we looked at,
7 Commissioner Webster. Basically for the reason that you
8 used to describe that location, there's quite a ridge
9 that runs across there, and there would have been quite a
10 bit of earth moving that would have had to occur to carry
11 the drainage into the pond.
12 MR. WEBSTER: You didn't take anything off of
13 that ridge?
14 MR. RAU: To get the flow across it, we felt
15 we would have.
16 MR. WEBSTER: The water now runs down the
17 ridge and breaks off at the lagoon to the north. As it
18 could have been designed, in my mind, looking at it, it
19 could have run down the same spot, almost identical ridge
20 spot, and tipped to the south and gone into a lagoon on
21 the south side. And then would have been considerably
22 further away and -- and without any -- any material of
23 great amount -- greater amount of earth movement.
24 You would have been building a -- you would
25 have been taking the dirt and building a retention on the
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1 south side, I grant you that. You would -- the south and
2 west corner, you would have made a triangular shape into
3 the field of 52 . And you've got that map there in front
4 of you.
5 MR. RAU: Uh-huh. That's what I 'm
6 looking at.
7 MR. WEBSTER: I went up there and looked at
8 that -- well, I don't know. I just --
9 MR. CHILSON: The drainage naturally goes --
10 MR. WEBSTER: Engineeringly, it just didn't
11 look -- I fought like a son of a gun on that.
12 MR. RAU: The drainage naturally went to the
13 west. And originally the pond was planned to be slightly
14 north and east of where it is now. To carry it across
15 that ridge was a much more difficult and expensive task
16 based on the way things were originally laid out.
17 Granted, based on the opposition associated
18 with this permit, if -- looking back with hindsight, I
19 might have argued for a location more by 52 .
20 MS. HARBERT: Well , it seems to me that, if
21 you have to drain the pond and line it, maybe it would be
22 just as easy to move it.
23 MR. RAU: Well , it's basically not going to
24 be a draining of the pond, it's going to be taking
25 naturally occurring soils and mixing them along a short
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1 section of the south side of the pond.
2 CHAIR KIRKMEYER: Maybe. That hasn't been
3 approved yet.
4 MR. RAU: Right.
5 CHAIR KIRKMEYER: That's your recommendation?
6 MR. RAU: I just want to be clear that
7 there's only a small section of the pond that fails to
8 meet the criteria. The vast majority of the pond easily
9 meets the 10 to the minus 6 criteria.
10 CHAIR KIRKMEYER: Well, it meets the criteria
11 as we're talking CAFO regs?
12 DR. RAU: Correct.
13 CHAIR KIRKMEYER: Okay. Well , I'm looking at
14 my zoning ordinances, and we're talking about
15 compatibility here with existing land uses, surrounding
16 properties. And that's kind of where I'm headed with --
17 on this, just so you know.
18 I mean, I'm having a difficult time
19 understanding why, when you know that's sandy loam to
20 begin with, you didn't do any testing there to begin
21 with. Now you know you're going to have to probably go
22 back and line it. And you're making recommendations to
23 use the soils that are in the area, or whatever, why put
24 the pond there?
25 I mean, that, to me, seems like one of the
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1 biggest matters of contention in this whole hearing.
2 That and, of course, the Smith lateral , which we haven't
3 gotten to yet.
4 MR. RAU: Yes, the infamous Smith lateral.
5 Well, you're asking me a couple questions, and I'm not
6 sure I can answer all of them.
7 One, the pond didn't end up where we
8 originally thought it was going to end up, and we were
9 not involved with the project during that period.
10 Two, Mr. Hirsch would have to answer the
11 question as to whether, you know, he can move the pond.
12 There's a -- I'm sure there's a huge expense associated
13 with changing his operation and moving the pond.
14 MS . HARBERT: Did Mr. Hirsch ever give you
15 any reason why he didn't put the pond where you suggested
16 it would go in the first place?
17 MR. RAU: I think he would have to testify to
18 that. But my suspicion is the locations of the corrals
19 moved so the -- the pond moved. There was a pipeline
20 interference. The pipeline that runs to the Lind Farms.
21 And I don't know, are there any other issues?
22 CHAIR KIRKMEYER: Well, we can ask him when
23 he comes up.
24 MR. RAU: You know, I have to admit I was
25 not involved with the project at that time. We developed
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1 our plan. Mr. Hirsch went out with Five G's to implement
2 it. And I'm not sure of all the details or what occurred
3 in that time.
4 CHAIR KIRKMEYER: So when you gave me an
5 approximate cost of $10, 000, was that for just this
6 retention pond, the lining of it, and the plans for it?
7 MR. RAU: And during the conveyance across
8 the portion of the Smith lateral that's underground and
9 the tailwater ponds.
10 CHAIR KIRKMEYER: Okay. Our health
11 department is recommending a comprehensive site drainage
12 plan. How much time does that take? And what would that
13 require? What type of investment?
14 MR. RAU: I don't think that's going to
15 require a whole lot of time because there's a fair amount
16 of detail with the drainage plan that's existing. It
17 would probably be a drawing that showed flow arrows and
18 some details of some of the improvements.
19 CHAIR KIRKMEYER: Okay. It's also going to
20 be recommended that there be an impervious pad underneath
21 the manure stockpile in the winter dry storage area.
22 Do you have any idea how much something like
23 that would cost?
24 MR. RAU: Well , we've looked at that with
25 Mr. Hirsch; there's two options. One, to go with native
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1 materials and one with the liner.
2 We are going to do some testing, and we think
3 native materials may work. If they don't, we're looking
4 at a liner probably about a buck a foot.
5 MS . HARBERT: And how many feet does that
6 include?
7 MR. RAU: I don't know. I suppose it's
8 20, 000 square feet, 10, 000 square feet. It kind of
9 depends a little bit on how he wants to operate it.
10 MS . HARBERT: So it would be like probably
11 around 10, 000 square feet, though, so it would be
12 another $10, 000?
13 MR. RAU: Right. And along the lines of
14 the manure storage area, I think there was a lot of
15 discussion about the manure being used on-site. And I
16 believe Exhibit E, that was submitted previously, was a
17 whole series of letter agreements from nearby landowners
18 saying that they would haul and take the manure.
19 CHAIR KIRKMEYER: That's true. And I just
20 want to make sure, though. I heard your statement
21 earlier was that -- about removing all the manure when it
22 gets up to 2, 000 head. Is it the intention of this plan
23 that the manure would be moved now?
24 MR. RAU: Yes. What I was commenting on
25 is that the calculations that were presented to you were
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1 for a fully developed facility, not the facility as it
2 is now. All our water calculations, the acreages for
3 new manure, et cetera, are all based on 2 , 000 cows,
4 2 , 000 head.
5 MR. BAXTER: There's several issues on --
6 that are -- some aren't as important as others, but would
7 you at least comment on -- the size of the lagoon, I
8 think, has to do with this. Because I believe it was
9 made bigger in area than what was originally planned.
10 But some testimony has been given that
11 there's a problem with the depth of the lagoon. Has this
12 been discussed that it should be a certain depth because
13 of seasonal turnover and the smell problems from that?
14 Is that part of what you've recommended? Or did they
15 follow your recommendations?
16 MR. RAU: We didn't make any recommendations
17 in that area. This pond isn't designed for treatment.
18 It's strictly detention. And the pond is designed and
19 it's required that that pond be emptied twice a year.
20 MR. BAXTER: So your contention is that a
21 seasonal turnover is a moot point?
22 MR. RAU: If you're pumping her dry twice a
23 year, turnover is not really an issue.
24 MR. BAXTER: Okay. Just one other issue on
25 the liner of the pond. It might not be that important.
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1 But your contention is that the -- the material you
2 ended up making it from, subsurface material, met the
3 permeability that it was supposed to except for one area,
4 the small area.
5 Now, we had also testimony that, from
6 calculations that were used, it was -- a large amount of
7 water had to have gone into the ground or something
8 because there was no other place for it to go. Well,
9 would you comment on that.
10 MR. RAU: To be honest with you, I couldn't
11 follow those calculations as they were presented. I
12 haven't had time to look at them. They were just thrown
13 up on the screen.
14 From what I 've seen, to be honest with you, I
15 can't comment. You know, I didn't do the calculations.
16 I don't know the basis of the calculations.
17 The data I have indicate that there hasn't
18 been significant leakage from the pond because the area
19 where the pond does fail, the permeability requirements,
20 it's fairly permeable -- or impermeable. And it's fairly
21 high up on the embankment and so it's typically not
22 seeing water.
23 MR. BAXTER: The area you pointed out a while
24 ago is where you did testing in the pond. Did you do
25 testing in the areas that had good permeability or
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1 poor -- that were poorer than others? Were they all
2 the same? Did most of the pond test with a very low
3 permeability when you tested it? Or did you test the
4 whole pond?
5 MR. RAU: Well , you can't test the whole pond
6 without digging it all up and sending it to the lab. We
7 collected a number of samples from the pond. And there
8 was only one permeability test that failed. One area,
9 when we collected samples, where the permeability
10 test failed.
11 We collected two samples from that area. We
12 collected one unmodified and it failed. We had Hirsch's
13 contractor do a little bit of work in that area, mixing
14 some -- a little bit of clay in just to see how it would
15 respond. It came pretty close to meeting the criteria
16 with that little bit of work, but it still failed.
17 CHAIR KIRKMEYER: And this was done when?
18 MR. RAU: In September and October of
19 this year.
20 CHAIR KIRKMEYER: So it was done after the
21 discharge occurred?
22 MR. RAU: After the discharge occurred.
23 Which discharge?
24 CHAIR KIRKMEYER: The one that went across
25 our road.
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1 MR. RAU: Oh, yes. Those two are sort of
2 unrelated in that the -- the discharge across the road
3 was from land application as opposed to leakage from the
4 pond. They've basically over-irrigated.
5 CHAIR KIRKMEYER: Is there seepage or leakage
6 from the pond?
7 MR. RAU: There's seepage from any pond.
8 10 to the minus 6 specifies a maximum seepage rate. A
9 plastic bag seeps. Everything seeps.
10 MR. WEBSTER: I might be wrong and you
11 correct me if I'm not right on this. But they pumped
12 water out of the lagoon onto that field that says
13 No. 52 . And that it -- you overloaded that field. And
14 that's where it crossed the corner of the place and ran
15 off; is that correct?
16 MR. RAU: That could be. I have no personal
17 experience with that incident.
18 MR. WEBSTER: Because when I was up there,
19 they were pumping out of the lagoon and irrigating the
20 surface water onto that field. And that field ran to the
21 southwest corner of the farm and crossed the road at that
22 point. Because I had the road and bridge engineer up
23 there with me.
24 MR. RAU: That's my understanding, is that
25 that -- that water that ran across the road was a result
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1 of irrigation, not seepage from the pond. It was the
2 irrigation with pond water.
3 (Discussion among participants)
4 CHAIR KIRKMEYER: If you are going to answer
5 questions, I need you to come up to the microphone and
6 state your name and address. Thank you.
7 MR. HIRSCH: My name is Jake Hirsch, owner of
8 Hirsch Dairy.
9 I had a violation in August of '95 where it
10 did run onto the county road, but it has not run off the
11 road since. We did pump water last year, but it -- it
12 stayed on my property.
13 MR. RAU: Jake, that water that ran across
14 the road, was that all wastewater from the pond or was
15 that a combination of irrigation --
16 MR. HIRSCH: No. No. It was all
17 lagoon water.
18 MR. CHILSON: Jake, have you ever had -- this
19 is John Chilson. Have you ever had an overflow or a
20 leakage from your pond that you did not produce with
21 a motor?
22 MR. HIRSCH: No.
23 CHAIR KIRKMEYER: I 'll have more questions
24 for you later, but I still have more questions for
25 Mr. Rau.
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1 In the public hearing, we were given a
2 Development Standard No. 21. And it talks about no waste
3 of any type including but not limited to dirt, manure,
4 wastewater, straw, and bedding shall be permitted to
5 enter into the Smith lateral ditch.
6 Do you think it's possible for the applicant
7 to meet that development standard?
8 MR. RAU: Can you give me a second to read
9 it, since I just --
10 CHAIR KIRKMEYER: Sure. I just read you the
11 first sentence.
12 MR. RAU: I 'm a visual person, that's why I'm
13 in engineering.
14 Boy, the way it's worded, no waste of any
15 type. You know, straw blows around; dirt blows around
16 from fields. This is a fairly all-inclusive
17 requirement. And according to the way it's written and
18 if it's interrupted strictly, I 'd have to say nobody
19 could comply with that.
20 CHAIR KIRKMEYER: Except for the last
21 sentence there kind of gives you the out, that the
22 applicant isn't required to be immediately remove
23 such waste.
24 So my real question, though, is on the -- is
25 the wastewater and the fact that there's no containment
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1 from the manure storage area. And there's been a ditch
2 in between the ditches --
3 MR. RAU: Well, there is now. And that's one
4 thing I want to reiterate.
5 CHAIR KIRKMEYER: No. I asked. You said
6 that ditch had been there since the time of the
7 operation -- the start of the operation. Well, there's
8 been numerous accounts of stuff in the Smith lateral
9 ditch since that time.
10 MR. RAU: Yeah, but that was straw --
11 CHAIR KIRKMEYER: So that ditch isn't
12 handling it.
13 MR. RAU: That was straw and dry manure.
14 CHAIR KIRKMEYER: It was everything.
15 MR. RAU: The manure pile has been moved from
16 where it was.
17 CHAIR KIRKMEYER: So do you think they will
18 be able to meet that standard?
19 MR. RAU: Yes, as you've defined it.
20 CHAIR KIRKMEYER: Okay. Does anyone have any
21 other questions for Mr. Rau?
22 MR. WEBSTER: I just have a statement or
23 remark on it. That it looks to me like your engineering
24 didn't go very hand in hand with the ownership as to what
25 was going on. Whether it was the location of the lagoon
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1 and you say that you didn't know that it was to be
2 located there and, apparently, the owner relocated it
3 somewhere of what you had.
4 You only did a minimal amount of testing;
5 that proved to be negative. Nothing more was done with
6 that. The permeability testing, I think, as you said.
7 It looks like you -- you weren't working
8 together as -- in order to -- and out of that, you came
9 out of compliance in what was happening. And not --
10 MR. RAU: I'm not sure what your question
11 is. I think you may be referring to --
12 CHAIR KIRKMEYER: He's just making a
13 statement.
14 MR. WEBSTER: Well, it was kind of a
15 statement. And I guess maybe you can deny the statement,
16 I guess.
17 MR. RAU: Well, we worked very much hand in
18 hand with Mr. Hirsch developing the original plan. He
19 brought in Five G's consultants to design the pens and
20 milking parlors, et cetera. And we had talked to him a
21 couple of times, and he felt like Five G's was providing
22 the engineering that he needed at that time.
23 And I 'm not in the practice of just going out
24 on people's property and providing engineering services
25 they don't ask me to provide.
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1 After he decided to take this to the county
2 for a special use permit request, we became involved
3 again and have been very active in directing him and
4 giving him recommendations about how to comply with the
5 regulations and how to operate the dairy from a waste
6 standpoint.
7 You know, I think -- I think he didn't feel
8 like he wanted two engineers on his payroll at one time.
9 He probably didn't want one, but two was even worse.
10 MR. WEBSTER: That might be the problem in a
11 nutshell, I don't know. I can't speak to that.
12 MR. RAU: You know, he's a small businessman
13 trying to get his dairy operating and try and operate the
14 best he can. And when you start bringing in engineers
15 and attorneys and -- we're a very expensive group. And
16 having two of them on the payroll , I think, was probably
17 more than he wanted. But you can ask him about it.
18 CHAIR KIRKMEYER: Any further questions for
19 Mr. Rau? Thank you very much.
20 MR. CHILSON: Thank you.
21 CHAIR KIRKMEYER: It's 3 : 30.
22 (Discussion among participants)
23 CHAIR KIRKMEYER: I guess my question to
24 the board is does the board wish to proceed without
25 Mr. Webster?
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1 (Discussion among participants)
2 CHAIR KIRKMEYER: Okay. We're going to take
3 a five-minute break at this point. And Commissioner
4 Webster will be leaving. He'll have to listen to the
5 tapes if there ends up being a tie from the board.
6 (Recess from 3 : 30 to 3 : 45 p.m. , after which
7 Commissioner Webster was not present)
8 CHAIR KIRKMEYER: Okay. We're all ready to
9 proceed. Mr. Chilson.
10 MR. CHILSON: Mr. Hirsch, would you go up to
11 the microphone there and state your name again.
12 MR. HIRSCH: Jake Hirsch, owner of
13 Hirsch Dairy.
14 MR. CHILSON: Mr. Hirsch, I'm going to ask
15 you to use any exhibit you want. There's been a whole
16 lot of different numbers about the actual acreage of
17 your farm. State again the number of acres that you
18 own there.
19 MR. HIRSCH: Total with the dairy,
20 there's 240.
21 MR. CHILSON: All right. I 'm going to use
22 Exhibit FF, just because it's handy. If there is another
23 exhibit you think might be better, we can do that. But
24 we're going to have to go up here to the commissioners.
25 I can talk loud to get heard in their
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1 microphones. I would like you to come up here, and
2 you're going to have to talk loud.
3 Using Exhibit FF, would you point out to the
4 commissioners the lands showing thereon that you own.
5 MR. HIRSCH: It would be this.
6 MR. CHILSON: The gold rectangular outline;
7 is that correct?
8 MR. HIRSCH: Yes.
9 MR. CHILSON: Would you show the
10 commissioners what portion of that is irrigated cropland
11 and state how many acres of irrigated cropland you farm.
12 MR. HIRSCH: There is about 150, 51 below
13 Smith lateral. And then there's 10 acres just south.
14 CHAIR KIRKMEYER: I think that blue line is
15 the Smith lateral, isn't it?
16 MR. HIRSCH: Yeah. South of the trailer.
17 This line in here, I believe, is Smith lateral . So
18 there's 10 acres of grass here. And there's that corner
19 field, that's 11 acres. And then there's 140, 145 in the
20 rest of it, I guess.
21 MR. CHILSON: Now, you also have dryland;
22 where is that?
23 MR. HIRSCH: Up there where we use to pile
24 manure, there's -- I don't know, somewhere between 7 and
25 10 acres up there, I suppose.
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1 MR. CHILSON: All right. So your total
2 farmable ground is around 165 to 170 acres?
3 MR. HIRSCH: Yes.
4 MR. CHILSON: Thank you.
5 Mr. Hirsch, Exhibit E is a multipage exhibit,
6 containing five pages. And we introduced that in our
7 prior hearing. These are commitments that you got in
8 writing from neighboring farmers to take your manure and
9 haul it off?
10 MR. HIRSCH: Yes.
11 MR. CHILSON: And that comprises about a
12 thousand acres of farm ground, a little over a thousand,
13 of people who have committed to take manure from you at
14 this time; is that right?
15 MR. HIRSCH: Yes. I believe so, yes.
16 MR. CHILSON: All right. At the time you
17 would expand to -- oh, by the way, at least once a year,
18 is all your manure removed at your present level of
19 operation?
20 MR. HIRSCH: We usually do it about twice
21 a year.
22 MR. CHILSON: About twice a year.
23 And you would have to obtain additional
24 places to go with manure if you went to 2000 head?
25 MR. HIRSCH: Yes, sir.
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1 MR. CHILSON: All right. With regard to
2 the Smith lateral ditch -- I'm going to refer you to
3 Exhibit Q, the picture in the -- on the lower left of
4 this exhibit. That's a picture of the Smith lateral?
5 MR. HIRSCH: Yes.
6 MR. CHILSON: And what relative location is
7 that to your dairy operation?
8 MR. HIRSCH: It's south and a little east of
9 the milk barn.
10 MR. CHILSON: Okay. Where is it relative to
11 your manure storage area as it now exists?
12 MR. HIRSCH: This is clear on the front part
13 of the place. And the manure storage was clear on the
14 back part of the place.
15 MR. CHILSON: I don't believe -- oh, excuse
16 me, there it is.
17 Exhibit P was taken by Mr. Lind. Was that at
18 the time you stored manure in the previous place or where
19 you moved it after your conversation with Mr. Sainz?
20 MR. HIRSCH: That was in the previous place.
21 We have since then spread it on the fields and -- and
22 moved stockpile.
23 MR. CHILSON: All right. And you moved it
24 which direction?
25 MR. HIRSCH: South of this.
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1 MR. CHILSON: Okay. None of the exhibits,
2 none of the pictures Mr. Lind provided, show the full
3 length of the -- what would be the east side of the
4 Smith lateral , right? Is this between you and the
5 manure -- or the Smith lateral and the manure shown on
6 the top picture of Exhibit P, which direction is the
7 manure pile from the ditch?
8 MR. HIRSCH: East.
9 MR. CHILSON: All right. There's no pictures
10 of the east side of the ditch. Did you draw any kind of
11 a barrier to prevent drainage runoff from your manure
12 seeping into the Smith lateral?
13 MR. HIRSCH: Not here we didn't. But on the
14 new place there is a bar ditch that's cut into the road.
15 MR. CHILSON: Where does that bar ditch go?
16 MR. HIRSCH: It runs down past the trailer
17 houses.
18 MR. CHILSON: Okay. Now, has that bar ditch
19 ever been utilized by drainage or runoff from your manure
20 pile to the Smith lateral?
21 MR. HIRSCH: No, it has not.
22 MR. CHILSON: Why is that?
23 MR. HIRSCH: Because it runs -- it runs down
24 the other side of the road and onto that 10-acre field
25 that I've got by the trailers.
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1 MR. CHILSON: What does?
2 MR. HIRSCH: Any runoff from rainwater off
3 the top part of the place.
4 MR. CHILSON: So it does not reach the Smith
5 lateral ditch?
6 MR. HIRSCH: No, it does not.
7 MR. CHILSON: What direction are the
8 prevailing winds at your farm?
9 MR. HIRSCH: Usually out of the north or the
10 northwest.
11 MR. CHILSON: As shown by Exhibit FF --
12 as shown by Exhibit FF, what's the location -- direction
13 location of Mr. Lind's residence from your lagoon?
14 MR. HIRSCH: North and a little west.
15 MR. CHILSON: Okay. So the prevailing winds
16 run from Mr. Lind's house across your lagoon going the
17 other way, do they not?
18 MR. HIRSCH: Generally, yes.
19 MR. CHILSON: And Mr. Felte's testimony and
20 letter, I believe, indicated that that's the prevailing
21 winds from the north and the west.
22 MR. HIRSCH: I believe so, yes.
23 MR. CHILSON: Approximately how much water on
24 average is in your lagoon on a daily basis?
25 MR. HIRSCH: It -- it -- generally, it
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1 doesn't get too full. Of course, we've pumped it a
2 couple times. But on one end, it might be about a foot
3 and it tapers off. So by the time you got across to the
4 other end, it just might be a couple of inches.
5 MR. CHILSON: Have you ever had water run
6 over your lagoon?
7 MR. HIRSCH: No, I have not.
8 MR. CHILSON: The only way water has ever
9 come out of your lagoon is by you're pumping it?
10 MR. HIRSCH: Yes.
11 MR. CHILSON: And by normal seepage that you
12 have in every lagoon?
13 MR. HIRSCH: Yes.
14 MR. CHILSON: The spot that did not meet the
15 compaction tests is how high up off of the floor?
16 MR. HIRSCH: It's above the water level on
17 the south side of the lagoon.
18 MR. CHILSON: It's above the average water
19 level?
20 MR. HIRSCH: Yes.
21 MR. CHILSON: Have you ever had water up that
22 high up in the lagoon?
23 MR. HIRSCH: Not yet, no.
24 MR. CHILSON: So there has not ever been
25 water up to where the one area of inadequate compaction
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1 exists?
2 MR. HIRSCH: No.
3 MR. CHILSON: Do the commissioners have any
4 questions?
5 CHAIR KIRKMEYER: Okay. Does the board have
6 any questions of Mr. Hirsch?
7 MS. HARBERT: Yes. I guess I'll ask why --
8 why you didn't put the lagoon where the engineering
9 company suggested.
10 MR. HIRSCH: I think it was moved --
11 actually, it was supposed to be smaller and deeper. And
12 because we started running into some softer soil to where
13 the big Carryall could not go across it, they decided to
14 make it bigger and shallower.
15 MS. HARBERT: Did you ever do anything to
16 control the odor from the lagoon?
17 MR. HIRSCH: I very seldom smell any odor
18 from my lagoon. Well, no, I do not.
19 MS. HARBERT: Well , it's just like I don't
20 think Greeley stinks either but other people do. You
21 know, you get used to those things, I guess.
22 But there are things that you can do to
23 control the odor in lagoons and things. There's
24 chemicals and aeration and all sorts of things.
25 MR. HIRSCH: I have -- I have checked on it.
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1 MS. HARBERT: But you don't think that it
2 smells enough to do anything with it?
3 MR. HIRSCH: Not to me, no. But if that's
4 what I have to do, well, then that's what I have to do.
5 CHAIR KIRKMEYER: So the winter manure
6 storage area on the map that we had that's in your
7 application, that's in the correct location? Is that
8 where it is? This is where you have it located on
9 this map.
10 MR. HIRSCH: That's where it used to be and
11 it's moved.
12 CHAIR KIRKMEYER: So this map is incorrect?
13 This was the map in your application.
14 MR. HIRSCH: Yeah. Victor told us we needed
15 to move it, so we moved it.
16 CHAIR KIRKMEYER: And where did you move
17 it to?
18 MR. HIRSCH: We moved it south of there.
19 CHAIR KIRKMEYER: You moved it south of the
20 commodity barn?
21 MR. HIRSCH: Yes.
22 CHAIR KIRKMEYER: What happened to the trench
23 silo? Was that moved also?
24 MR. HIRSCH: It's still there.
25 CHAIR KIRKMEYER: So it's in this cropland
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1 right here?
2 MR. HIRSCH: Yes.
3 CHAIR KIRKMEYER: And when did you move it?
4 MR. HIRSCH: A few weeks after Victor was out
5 to see me at the end of September. So we went ahead and
6 hauled the manure out and then started -- probably the
7 middle of October.
8 CHAIR KIRKMEYER: Of this year?
9 MR. HIRSCH: Yes.
10 MS. HARBERT: So now it's just west of the
11 trench silo; is that correct?
12 MR. HIRSCH: Yes.
13 MR. BAXTER: And that cropland there is
14 what -- you say it drains onto -- or it too drains to
15 another one? It drains all the way down to the other one
16 or stays on that one?
17 MR. HIRSCH: Well , it's on a hillside.
18 There's a borrow pit along the road.
19 MR. BAXTER: Well, I guess what I 'm saying
20 is, does it go all the way down this cropland that's
21 clear at the bottom? Or does it stay up here?
22 MR. HIRSCH: No. There's -- there's a road
23 and -- and Smith lateral in between there.
24 (Discussion among participants)
25 CHAIR KIRKMEYER: Could you put north where
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1 north is. The other way. Thank you for your help.
2 So did I put it in the right spot?
3 MR. HIRSCH: Yeah, that's where the manure
4 pile was. And this is where it's at now.
5 MS. HARBERT: And where does it drain
6 to then?
7 MR. HIRSCH: There's a bar ditch along here
8 that runs --
9 (Discussion among participants)
10 MR. RAU: I think I can probably explain it.
11 CHAIR KIRKMEYER: For the record, you are?
12 MR. RAU: Dave Rau.
13 CHAIR KIRKMEYER: Thank you.
14 MR. RAU: There's a road that's used for
15 heavy equipment to run commodities back and forth,
16 et cetera, a rather substantial road that sits east of
17 the Smith lateral. And the borrow pit is east of that
18 road.
19 MR. BAXTER: Is that road built up?
20 MR. RAU: A little bit, yeah.
21 CHAIR KIRKMEYER: But there is -- there is
22 water, or whatever, running off from that manure pile
23 into that borrow pit?
24 MR. RAU: Uh-huh. When it rains enough.
25 MR. HIRSCH: Well , I suppose if it rained
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1 enough, there would be.
2 MS. HARBERT: Where does the manure drain to
3 naturally?
4 MR. RAU: Down to this cropland down here.
5 MS. HARBERT: How?
6 MR. RAU: There's -- this borrow pit
7 continues down. And then there's an irrigation line for
8 irrigating that field where it just feeds in there.
9 (Discussion among the participants)
10 MR. RAU: If there's significant rainfall and
11 there is runoff from the manure area, it runs into this
12 borrow pit and follows down and basically just spreads
13 across this cropland.
14 MS. HARBERT: So there's no drainage from the
15 manure pile unless it rains; is that right?
16 MR. RAU: Well , there's no runoff.
17 MS. HARBERT: Because it's dry. Well ,
18 sort of.
19 MR. RAU: Well, he -- he continues to pile
20 it in a uphill direction, so you're always putting the
21 wetter manure uphill. From what I've seen, I've never
22 seen runoff from it.
23 MR. CHILSON: Any questions now while we got
24 this exhibit and Mr. Hirsch up here?
25 CHAIR KIRKMEYER: I have more questions for
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1 you, though.
2 MR. MORRISON: That is Exhibit GG that you
3 were referring to. It's also found in the blue book at
4 Tab 47 .
5 MR. CHILSON: In order to effect your
6 drainage plan, Mr. Hirsch, you're going to have to cross
7 the Smith lateral ditch; is that correct?
8 MR. HIRSCH: I believe so, yes.
9 MR. CHILSON: All right. What would be the
10 location? Just kind of give the commissioners an idea of
11 the location of where that would be crossed.
12 MR. HIRSCH: It would probably be just south
13 of the trailer houses there and underneath my current
14 road and the pipeline of the Smith lateral .
15 MR. CHILSON: Is the ditch aboveground or
16 underground at that location?
17 MR. HIRSCH: It's a pipeline underground.
18 MR. CHILSON: How would you cross it? Would
19 you be crossing it with a pipeline over the pipeline?
20 MR. HIRSCH: Probably underneath, I would
21 imagine.
22 MR. CHILSON: Okay.
23 MR. HIRSCH: I don't think it's in the ground
24 too deep, so it would probably be beneath it.
25 MR. CHILSON: So it would be beneath it?
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1 MR. HIRSCH: Uh-huh.
2 CHAIR KIRKMEYER: Mr. Hirsch, were you
3 familiar with Zoning Ordinance No. 47 about the livestock
4 feeding performance standards?
5 MR. HIRSCH: Not at the beginning, no.
6 CHAIR KIRKMEYER: When did you become aware
7 of those?
8 MR. HIRSCH: When I started this process.
9 CHAIR KIRKMEYER: So that was prior to
10 September? You've been in the process awhile.
11 MR. HIRSCH: A long time, 18 months or
12 better.
13 CHAIR KIRKMEYER: So do you understand that
14 47 . 1. 1 does require that there shall be no seepage or
15 percolation of the manure pollutants into the ground?
16 MR. HIRSCH: Yes.
17 CHAIR KIRKMEYER: So do you have plans to put
18 a impervious material underneath that stockpile?
19 MR. HIRSCH: If I have to, yes.
20 CHAIR KIRKMEYER: Well, according to these
21 regulations you have to.
22 MR. HIRSCH: Well , then I have to.
23 CHAIR KIRKMEYER: Okay.
24 MS . HARBERT: Now, wait a minute. I just
25 asked if there was drainage off of that manure pile. And
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1 everybody says it's dry; it doesn't drain. Now, you're
2 talking about this. I thought that it did drain, and
3 that's why we were asking for -- so who's right?
4 CHAIR KIRKMEYER: Well , I am.
5 MS. HARBERT: Well, why did I bother to ask.
6 This is what I'm not understanding is -- you
7 know, we're talking about draining and draining under the
8 Smith lateral , and I understand why. Except now, they
9 say that there isn't any drainage from the manure
10 storage. There are some calf hutches and some heifer
11 lots down here, I assume, probably have some kind of
12 runoff from them. But --
13 MR. HIRSCH: When it rains.
14 MS. HARBERT: So we're only talking about
15 when it rains; is that correct?
16 CHAIR KIRKMEYER: That's what they were
17 saying, yes. I'm talking about compliance with our
18 Zoning Ordinance No. 47 . 1. 1. Regardless, he has to have
19 a watertight surface to make sure that there isn't any
20 seepage of any kind whether it's raining or not raining.
21 MS. HARBERT: Okay.
22 CHAIR KIRKMEYER: So it doesn't get into the
23 ground.
24 MS . HARBERT: So what do you plan to put
25 under the manure storage to keep it from permeating into
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1 the ground.
2 MR. HIRSCH: Either we'll have to line it or
3 compact it so it -- it doesn't seep into wherever.
4 CHAIR KIRKMEYER: You know there will have to
5 be a plan, and that's a development standard -- or that's
6 an ordinance. It will have to be approved by the health
7 department if this permit -- whether or not this permit
8 is approved?
9 MR. HIRSCH: Yes.
10 CHAIR KIRKMEYER: You'll have to take care of
11 that. You have to come into compliance with 47 , Zoning
12 Ordinance No. 47 , whether or not your permit is
13 approved.
14 So that kind of brings me up to the question
15 of -- you -- you heard about costs. And those are
16 estimates. And in my estimate, they were lowballing it.
17 Those were low estimates. And there's a lot here to do
18 with conditions and development standards.
19 You have heard us talk about moving the
20 pond. You're going to have to line the pond, drainage
21 plan, a comprehensive site drainage plan, lining
22 underneath the -- you know, the stockpile there. And the
23 comments, both in the planning commission and at the
24 beginning of this hearing, was that the reason that you
25 needed to do the expansion is to remain viable and
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1 economically afloat. So how are you going to pay for
2 all of this?
3 I mean, can you meet -- first of all, do you
4 feel you can meet -- and I'm not sure that we're done
5 with adding on development standards and conditions yet,
6 but can you meet the ones that are -- even been suggested
7 or recommended by the planning staff and commission, and
8 can you afford it?
9 MR. HIRSCH: I think so.
10 CHAIR KIRKMEYER: And you understand that, if
11 these regulations are prior to recording the plat, that
12 you can't -- you cannot expand? You'll have to stay
13 at -- you'll have to get to 960 head.
14 MR. HIRSCH: Uh-huh.
15 CHAIR KIRKMEYER: And you cannot record the
16 plat, you cannot get a building permit, you cannot expand
17 until you've met all of these regulations, and that would
18 include all the ones in Section 47 of the zoning
19 ordinances and all of these conditions in approval here
20 and the CAFO regulations. Do you understand all
21 of that?
22 MR. HIRSCH: Yes, I do.
23 CHAIR KIRKMEYER: Okay.
24 MS . HARBERT: I 'd also like to ask how long
25 do you think it's going to take you to do that?
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1 MR. HIRSCH: I've got people working on it
2 as we speak to -- to start getting cranked up into
3 compliance.
4 MS. HARBERT: Okay. But what one of the
5 concerns of the other side was that -- you know, you said
6 it could be a ten-year plan, yet you're out of compliance
7 in some areas already, so how soon -- how soon do you
8 think you can get into compliance at least with what you
9 have right now?
10 MR. HIRSCH: Depending on the weather, it
11 might be springtime.
12 MS. HARBERT: So six months would be
13 maximum?
14 MR. HIRSCH: I think so.
15 MS. HARBERT: Because I think -- you know, as
16 far as you're expanding the dairy, I don't have a problem
17 with that as long as you stay in compliance. But if
18 you're out of compliance, then I have a big problem
19 with it.
20 MR. HIRSCH: Uh-huh.
21 MS. HARBERT: And it's obvious that you're
22 not in compliance and haven't been in compliance. And
23 you haven't -- you know, you haven't exactly been the
24 most cooperative, compassionate neighbor. And I think
25 you need to take that into consideration.
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1 MR. HIRSCH: Well, I think that works
2 both ways.
3 MS. HARBERT: Well , yeah, but -- you know,
4 somebody has to start being cooperative and
5 compassionate, okay?
6 And so, you know, I really feel that we need
7 to put some kind of a time line on here. So that if
8 you're not in compliance and you don't have your plan in
9 place by a certain date and you don't have your capital
10 investment money ready to roll on this, that then you're
11 permit isn't any good.
12 MR. HIRSCH: I can agree with that.
13 MR. CHILSON: Ms. Harbert, may I say
14 something here?
15 MS. HARBERT: Sure.
16 MR. CHILSON; I 'm not trying to speak for
17 Mr. Hirsch but because of Mr. Sainz 's testimony and
18 Mr. Jiricek's testimony, the way that this works is that
19 irrespective of your decision here today, coming into
20 compliance is going to be necessary for him to stay in
21 business.
22 Whether you approve this or deny this, he is
23 going to have to come into compliance with CAFO and with
24 the county health department regulations.
25 Also this section about compacting and having
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1 an impervious area under his manure pile, those are
2 givens. It has nothing to do with whether he gets a
3 permit. Just to keep his business open, he's going to
4 have to do that.
5 And that time line is what is to be set by
6 Mr. Sainz and Mr. Jiricek in working out this plan of
7 design, design of the structures, and a time line for
8 construction. That's all going to be administered by the
9 state health department and by your county health
10 department.
11 So that what time line is -- I mean, I do not
12 say that you can't set one. If you feel like you want
13 to, I guess you can.
14 But the whole idea is irrespective of what
15 you do here, he's going to have to do it within the time
16 they says he has to do it. Okay. That's kind of the way
17 it breaks down.
18 CHAIR KIRKMEYER: The only -- the thing that
19 we have is that, when we put these conditions under prior
20 to recording the plat, he can't move forward until he
21 meets all these conditions. He can't even get a building
22 permit under this permit.
23 MS. HARBERT: I'm very well aware of that,
24 but I still think that we need to encourage in some way
25 for him to hurry up and get into compliance. And
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1 sometimes the state is pretty slow about those dates.
2 And I'd like to see him get into compliance a little
3 sooner than that.
4 MR. BAXTER: Well, I agree with what's
5 being said, but I need to get an answer from you on a
6 whole different issue that goes to what Barbara said in
7 the cost.
8 My understanding of this, and correct me if
9 I'm wrong, is that you've got a problem with pumping out
10 of that lagoon. If you pump and it runs over the road
11 and you only have a limited number of acres you can pump
12 to and the idea was to go to the sprinkler to put that on
13 a bigger area of land so you had a place to put it, now
14 that's a big cost. What are your plans on that?
15 MR. HIRSCH: The sprinkler was a
16 possibility. But we have plans of putting in a pipeline
17 to -- so I can flood irrigate my property and put a
18 tailwater pond to ensure that there's no runoff.
19 MR. BAXTER: So your intentions now are to
20 take that same -- pump it up to the up-gradient area and
21 let it come down instead of a sprinkler?
22 MR. HIRSCH: Yes.
23 MR. BAXTER: Okay. That's all part of
24 the issue.
25 CHAIR KIRKMEYER: Does that cover it in
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1 a development standard or a condition --
2 MR. BAXTER: I 'm not sure how well it's
3 covered.
4 CHAIR KIRKMEYER: -- that you're discussing?
5 MR. BAXTER: It's part of the expense he's
6 got to look at. He can't have it run out. It can't be a
7 discharge facility. And I think that's all part of not
8 discharging. He needs to have somewhere to go with it on
9 his property. That's the issue of the number of acres;
10 if he has enough acres to put it on. It's all part of
11 that discussion.
12 MS. HARBERT: Mr. Hirsch, did you read the
13 additional conditions of approval that the opposition
14 presented?
15 MR. HIRSCH: No, I haven't had time to
16 read them.
17 CHAIR KIRKMEYER: Well, let me -- maybe we
18 can just kind of start through those. First of all , you
19 don't have permission from Mr. Lind to encroach on his
20 easement, so you would have to change your map again.
21 And it's incorrect anyway, so you have to change it,
22 unless you can get that easement. Or unless you can show
23 that you aren't going to interfere with that easement and
24 that pipeline.
25 MR. CHILSON: As long as we don't interfere.
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1 CHAIR KIRKMEYER: That's right.
2 So one of the developmental standards that
3 Mr. Hellerich proposed was No. 21, No waste of any type
4 including but not limited to dirt, manure, wastewater,
5 straw bedding shall be permitted to enter into the Smith
6 lateral ditch.
7 I guess I'd like to know if you have any
8 objection to that being a development standard.
9 MR. HIRSCH: I was wondering if they had any
10 objection to me piping it up to the road.
11 CHAIR KIRKMEYER: Well , whether or not they
12 have an objection to you piping it out to the road -- I
13 mean, we don't need to have their permission for you to
14 do that. But they want to make sure that you don't put
15 any waste of any type into the Smith lateral ditch.
16 Additionally, if you do, the applicant would
17 be required to immediately remove any such waste or
18 material from the ditch.
19 MR. HIRSCH: We have done that in the past.
20 CHAIR KIRKMEYER: So you wouldn't have any
21 objection to that being a development standard?
22 One of the other conditions that they are
23 proposing -- I'm not saying that we have at this point.
24 I just want to know how you feel about them and if you
25 feel that you're -- it's possible for you to meet that
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1 condition.
2 MR. HIRSCH: Uh-huh.
3 CHAIR KIRKMEYER: Is that you will -- well,
4 the lagoon must be restructured.
5 Maybe -- could we get a copy of this to
6 Mr. Hirsch? Do we have extra copies?
7 MR. MORRISON: I gave one to Mr. Chilson.
8 CHAIR KIRKMEYER: I guess I 'd like to know
9 what you think about relocating the pond to at least
10 2 , 000 feet from any nonlandowner resident. That's
11 No. 1. This is Exhibit KK.
12 MR. CHILSON: This is not marked. I just
13 want to make sure that we're reading the same one.
14 CHAIR KIRKMEYER: Yes, that's it.
15 MR. HIRSCH: Which one was that now?
16 CHAIR KIRKMEYER: That's Condition and
17 Approval No. 1 that has been proposed about relocating
18 the pond at least 2 , 000 feet from a nonlandowner
19 resident. I mean, if you want to talk to your engineer
20 and ask him if that's feasible, I would suggest you do
21 that before you answer.
22 MR. HIRSCH: It may be feasible, but I don't
23 know if it's cost effective. I might as well pull tent.
24 CHAIR KIRKMEYER: What about providing a
25 comprehensive drainage plan?
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1 MR. HIRSCH: I don't think that's any
2 problem.
3 CHAIR KIRKMEYER: What about submitting
4 detailed irrigation system design to show how wastewater
5 from the lagoon will be applied to all of the irrigated
6 acres. And we'll have to get a correct number in there.
7 MR. HIRSCH: I don't think that's a problem
8 either.
9 CHAIR KIRKMEYER: I think the detailed manure
10 handling disposal plan is probably already covered under
11 our conditions and development standards.
12 Is that correct, Todd or Trevor?
13 MR. HODGES : That is correct. Todd Hodges,
14 Department of Compliance and Services.
15 (Discussion among participants)
16 MR. BAXTER: Mr. Hirsch, do you have any
17 problem with the language on several of these to be
18 approved by an independent professional engineer?
19 MR. HIRSCH: Probably not.
20 CHAIR KIRKMEYER: I guess my question -- I'm
21 not sure that I would agree to something like that
22 because then we get into the issue of cost. And I do
23 think our Weld County Health Department is competent.
24 MR. HIRSCH: I haven't had time to read
25 these, and I haven't had time to go over with them
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1 with my engineer, so I don't know what's feasible and
2 what's not.
3 You can't just hand me a piece of paper and
4 say what do you think on this without having time to
5 consult my engineers. I mean, you know, I could be
6 confessing to a murder.
7 MR. HODGES: I would like to retract my
8 statement. No. 4 actually states, By an independent
9 agronomist. That is not included -- that would be the
10 portion.
11 MR. MORRISON: Trevor, is that standard more
12 consistent with the third tier of regulation under the
13 CAFO regs? Isn't that the process for the hog farm?
14 MR. JIRICEK: Trevor Jiricek, Weld County
15 Health Department. No, they, regardless -- what Lee's
16 referring to is there are three tiers in the CAFO
17 regulation for land application.
18 One, you apply at book values provided in the
19 reg. Two, you do an on-site agronomic analysis of your
20 waste stream, including crop that's raised on the land in
21 question and that kind of stuff. And then the third
22 tier, which he referred to is like National Hog Farm,
23 where they apply above-agronomic values.
24 In any case, they need to assess the amount
25 of nutrient being applied and have records on-site. So
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1 this is not specific to tier three, it's -- all three
2 tiers need to comply with that.
3 CHAIR KIRKMEYER: Mr. Hirsch, do we have an
4 accurate listing of all the livestock on the property?
5 MR. HIRSCH: I believe so.
6 CHAIR KIRKMEYER: Did you submit your DHA
7 records or something? How do we know it's an accurate
8 listing?
9 MR. HIRSCH: Kelly run it on the computer the
10 last time we were asked to submit the numbers.
11 CHAIR KIRKMEYER: Trevor, was there anything
12 about an odor abatement plan in the conditions of
13 approval or development standards? I don't recall it.
14 But I think Commissioner Harbert asked that question
15 earlier.
16 MR. JIRICEK: I think that would be an
17 appropriate addition.
18 CHAIR KIRKMEYER: Does the board have any
19 more questions for Mr. Hirsch?
20 MS. HARBERT: I'd guess I 'd ask if he was
21 willing to consider No. 9 on here about odor abatement
22 plan and how he intends to deal with that. I think there
23 is an odor abatement condition, but it's mostly for the
24 manure stockpiling. And I'd like to have the lagoon
25 included in that.
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1 Anyway, I couldn't find any order abatement
2 for the lagoon. I think it's No. 8 , if I'm not
3 mistaken.
4 MR. MORRISON: Also on 14 .
5 CHAIR KIRKMEYER: We had a new -- I didn't
6 see anything in this one that had any relationship to
7 odor abatement.
8 MR. MORRISON: There's not a plan. There's a
9 requirement that stockpiles of manure would be handled in
10 the way to avoid excessive odors. And that's "a. "
11 MS. HARBERT: And I think we need to have
12 some kind of an odor abatement plan on there, too.
13 MR. MORRISON: The provision that's submitted
14 by the opponents is similar to ones we've -- is that from
15 Mohawk?
16 MR. JIRICEK: I don't know if it's from
17 Mohawk specifically, but we've used that exact language
18 previously.
19 MR. CHILSON: I would suggest, if I may, that
20 the same odor abatement requirements that you have on the
21 manure be extended to apply to the lagoon.
22 MS . HARBERT: That would be all right
23 with me.
24 CHAIR KIRKMEYER: That No. 9 there, which is
25 on page 3 of the opponents' suggested additional
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1 conditions of approval, would that be acceptable? It
2 just talks about the facility as a whole.
3 MR. CHILSON: No. 9?
4 CHAIR KIRKMEYER: Yes.
5 MR. CHILSON: I want to make sure we're
6 reading the same page.
7 CHAIR KIRKMEYER: I'm on Exhibit KK.
8 MR. CHILSON: Yes, that's acceptable.
9 Because that's something that essentially would be the
10 same for the manure as the --
11 MR. HIRSCH: I guess I kind of got a question
12 on this odor problem. How are you going to distinguish
13 my odor from my cows from the sheep feedlot and the
14 cattle feedlot that are right next to me? What's going
15 to keep a neighbor from saying that it's coming from my
16 place and I get turned into the health department where
17 it very well could be coming from somewhere else? The
18 same way with flies, too.
19 CHAIR KIRKMEYER: That's a very good
20 question.
21 MR. JIRICEK: That is a good question. Odor
22 is distinguished by taking up and downgrade readings. We
23 have to take 2 readings, 15 minutes apart at the property
24 line. So if you had a westerly wind, we would have to
25 take readings on the west side of your site and then
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1 again on the east and then confirm those readings
2 15 minutes apart, so that you eliminate background
3 sources.
4 CHAIR KIRKMEYER: I don't have any further
5 questions for Mr. Hirsch.
6 MR. HALL: I have one other question, I
7 guess, going back to consideration for a tailwater pond
8 that you were talking about. Is that still going into
9 the same assumption that this is still not going to be
10 a discharge facility; you're going to reuse all that
11 tailwater constantly?
12 MR. HIRSCH: Yes.
13 MR. HALL: Is there any concerns, then, with
14 where that goes? And I guess now I'm hearing other
15 places that we'll have stored water.
16 MR. HIRSCH: What's that?
17 MR. HALL: Now I'm hearing that we'll have
18 other places that will have stored water versus just the
19 lagoon itself.
20 MR. HIRSCH: Well , a tailwater pond would
21 just -- when the water got to the end of my property, it
22 would pump it back up to the lagoon. And it would be
23 kind of a circulation process.
24 MR. HALL: Do we have any engineering done on
25 that at all?
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1 MR. HIRSCH: Not at the time. We're just
2 getting started on it.
3 MR. BAXTER: That would be combining fresh
4 water with your lagoon water or irrigating water with
5 lagoon water?
6 MR. HIRSCH: There would be some, yes.
7 CHAIR KIRKMEYER: Well, the only -- the one
8 condition that, I guess, we need to come to some
9 reconciliation on is about where that pond is going to be
10 located and how far away it's going to be from any
11 nonlandowner residence. And if you'd like to have your
12 engineer come up and talk about that, that's fine.
13 MR. HALL: Can someone explain to me what a
14 nonlandowner residence is.
15 CHAIR KIRKMEYER: They don't own land but
16 they still live there.
17 MR. HALL: What about the landowner
18 residences? They don't count?
19 CHAIR KIRKMEYER: I think it should be any
20 residence, but anyway. Do you want your explanation from
21 Mr. Hellerich since he's the one who wrote this?
22 MR. HALL: Well , I 'm willing to throw it
23 out. Because I don't understand what --
24 MR. HELLERICH: That's the applicant.
25 We're not restricting anything that the applicant has on
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1 his property. Maybe the proper word -- instead of
2 nonlandowner, it's the applicants. What we're trying
3 to say is --
4 CHAIR KIRKMEYER: So he could put the lagoon
5 within 2, 000 feet of his own home?
6 MR. HELLERICH: If he wants to put it within
7 10 feet of his own house, that's his choice.
8 MR. HALL: So in this case the landowner is
9 the applicant.
10 I don't like the way it's written, but I
11 understand why it's written that way.
12 CHAIR KIRKMEYER: Okay.
13 MR. RAU: I 'm not sure I understood your
14 question. Was it with regard to a tailwater pond or the
15 lagoon?
16 CHAIR KIRKMEYER: With regard to the lagoon
17 and relocating the lagoon. The opponents are asking that
18 it be 2 , 000 feet away from any nonlandowner residence.
19 Basically, away from them.
20 MR. RAU: Which is basically a half mile.
21 And that's physically and economically not possible on
22 that property.
23 MR. HIRSCH: You go 2, 000 feet --
24 MR. RAU: I'm not sure you could find a spot
25 on that property to meet that criteria, much less one big
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1 enough to have a lagoon on.
2 CHAIR KIRKMEYER: Would you have any
3 suggestion, other than the ones you've already suggested
4 in previous plans, as to where to put the lagoon so it's
5 as far away from surrounding property owners who live out
6 there in the area?
7 MR. RAU: Well, we looked at relocating the
8 lagoon during the break and that's a several hundred
9 thousand dollar investment. And as Jake said, I think he
10 might as well just pull the tent if he's going to move
11 that lagoon.
12 CHAIR KIRKMEYER: If you have to line the
13 lagoon, what kind of investment is that going to be?
14 Line it with -- not with soils but with some other type
15 of lining material .
16 MR. RAU: You're really putting me on the
17 spot on costs. If he were to line it with PVC, he's
18 probably looking at -- he's probably looking at
19 $150, 000. I mean, roughly speaking.
20 And I must clarify my earlier answer on
21 $10, 000. I thought you were talking about only
22 addressing that side edge of the lagoon. I must not
23 have understood your question completely. It was
24 just reworking that edge to meet the permeability
25 requirements.
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1 CHAIR KIRKMEYER: So to keep the odor down
2 from the lagoon if it stays in that place, what would you
3 suggest he do?
4 MR. RAU: Well, the two primary methods are
5 aeration and use of odor-eliminating chemicals. The
6 third thing to do is to do pretty much what -- makes the
7 most sense during the summer is to keep the pond as empty
8 as you can. Use the water for irrigation.
9 MR. BAXTER: I guess I have a related
10 question, and I assume it must be right. But obviously,
11 you don't -- do you put any of this on during the
12 wintertime when there's no crop on, too?
13 MR. RAU: Well, you can apply it during the
14 winter, but you are limited in that, you know, the ground
15 freezes up. All you're getting is evaporation.
16 MR. BAXTER: Well, the reason I bring it up
17 because I'm wondering if you -- from the time you put
18 irrigation until you start again, you've got a long time
19 to try to -- do you have enough pond to hold it?
20 MR. RAU: Yeah, the way the regs read, you
21 have to design the pond, and we designed it as such, that
22 you have to drain it at least twice a year. So you have
23 to -- and the way the regs read, you basically have to
24 hold that -- be able to hold half a year's worth of
25 water. Whether you do or not is up to you. But you have
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1 to be able to hold a half a year's water.
2 That's why in a operation like this, you'll
3 typically see the pond down pretty low because it's just
4 not operated that way.
5 And the regs are the worst case. It's much
6 like the agronomic application rates. If you use,
7 basically, the first option, you really don't have to
8 prove anything. The numbers that are on that table are
9 so conservative, there's really no proof required.
10 There's such a huge safety factor.
11 MR. BAXTER: I guess the question that comes
12 up, then, is trying to treat this. And a lot of times
13 you're saying there's from 2 inches to a foot deep. Is
14 it able to be treated when it's that shallow? Is that a
15 problem? You can't irrigate it, I 'm sure, at that
16 level . Can you?
17 MR. RAU: No, but you could add chemicals.
18 You'd have a hard time aerating it.
19 You know, one idea I 've come up with, just as
20 we batted this around today, is we could re-slope the
21 bottom of the pond. Right now the bottom of the pond is
22 set up so that it sort of slopes to the west.
23 So it basically starts filling from the west
24 to the east. And we could reslope the bottom of that
25 pond fairly easily. So it slopes from upward to the
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1 west. So when you are in low water conditions, most of
2 the water is quite a bit farther over on the east side,
3 rather than on the west side.
4 As it's set up right now, like when I was out
5 there surveying, there was about a foot of water on the
6 west side and about 2 inches of water maybe two-thirds to
7 three-quarters of the way to the east and, basically,
8 tapered off to nothing. That would probably be pretty
9 easy to do.
10 And that would set up a much greater
11 separation distance between the houses, the Lind
12 farmhouse and the wet part of the pond.
13 CHAIR KIRKMEYER: How much more,
14 approximately?
15 MR. RAU: Oh, the way that pond operates,
16 probably half the distance of the pond. I can't remember
17 the dimensions of the pond. I think it's maybe 700 feet
18 east and west, as I recall . 723 or something. 670. So
19 add maybe 300 feet, probably come close to doubling the
20 distance.
21 And that would actually work in concert with
22 improving the permeability on the south side of the
23 pond. And maybe we could do the two things together.
24 MS. HARBERT: Trevor, is there any way to --
25 I mean, I know that, when we had problems with the
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1 injection pond out -- or the, you know, what do we call
2 that, the oil -- the evaporation pond out there by
3 Milliken, we had them do a lot of plantings around it.
4 Was that to help eliminate the odor or was it a site
5 thing? Or why did we do that? I mean, that was done
6 before I was here, but --
7 MR. JIRICEK: I think that was part of their
8 original landscaping plan.
9 MS. HARBERT: Does -- you know, if you
10 planted like the cedar trees or the pine trees and stuff
11 around it, would that help eliminate some of that odor
12 or not?
13 MR. JIRICEK: I wouldn't have any idea.
14 Would you guys have any?
15 MR. RAU: Well , if they were junipers, it
16 might mask it a little bit.
17 MS. HARBERT: I mean, you would have to have
18 something that would have foliage all year round, that's
19 why I'm thinking --
20 MR. RAU: The concern I would have is
21 strictly engineering. If I start putting those kinds of
22 deep rooting plantings that close to my pond, it starts
23 attacking the integrity of the bottom of the pond. I
24 mean, I would typically tell him not to do something like
25 that to protect that liner.
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1 MS. HARBERT: But if you planted them, you
2 know, like 8 to 10 feet away, that wouldn't -- that
3 wouldn't bother it, would it?
4 MR. RAU: I wouldn't mind seeing them a
5 little farther than that, to be honest with you. Because
6 the roots go quite a ways, and the roots will start
7 heading towards that water.
8 MS. HARBERT: What if you just planted them
9 along Road 23?
10 MR. HALL: Well , I don't think anybody is
11 saying that trees are going to do any good.
12 MS. HARBERT: Well , I don't think there's
13 really a visual issue --
14 MS. HARBERT: I know. I 'm not talking about
15 visual .
16 MR. HALL: I guess the question that has come
17 to my mind, and whether you want to address it or Lee can
18 address it or whoever. But I'm starting to hear a lot of
19 things that are not in this application being done now.
20 And part of it is the tailwater ponds and things that go
21 from one place to another place.
22 And I guess I'm wondering whether or not
23 there needs to be an update to this prior to an
24 approval. Because I'm, quite frankly, right now in a
25 position where I'm a little reluctant to approve
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1 something without really knowing it.
2 And I realize that we've got staff that has
3 the ability to go through that process and make sure it
4 happens that way.
5 MR. RAU: Commissioner Hall , the tailwater
6 ponds were shown in concept in the plan we submitted in
7 November.
8 MS. HARBERT: Well, I agree with what Dale
9 has to say. I mean, I would -- we are ultimately
10 responsible for what happens out there. And I guess
11 to be -- with something as complicated as this and as
12 controversial as it is, I would like to see the
13 plan, also.
14 MR. CHILSON: May I say something,
15 Ms. Chairman?
16 CHAIR KIRKMEYER: Is Commissioner Harbert
17 finished?
18 MS. HARBERT: Yes.
19 CHAIR KIRKMEYER: Yes.
20 MR. CHILSON: The way that your zoning, which
21 this is, and your special use permit application works,
22 you come with your concepts because you can afford to do
23 those engineering-wise and you see if you get your
24 approval.
25 If you don't get your approval, you have not
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1 had to spend the thousands of dollars that design
2 engineering requires.
3 But once you know that you have gotten an
4 approval, you then go into your design phase. And I
5 think there is a lot that you would want to see about
6 design. And I certainly agree with that because you do
7 represent the public in protecting health, safety, and
8 welfare in the county.
9 My recommendation would be that, if this
10 board would vote to approve with conditions, that -- an
11 additional condition that you could impose is that the
12 design plans, the site plan as specifically designed with
13 the engineering-designed drawings, be brought back to you
14 in a continuation of this hearing.
15 And you can review them and ask questions
16 about them and feel then that you know exactly what's
17 going to go on this site and where it's going to go and
18 how the thing is going to be built.
19 But there isn't any way that the applicant
20 can go forward if he does not have an approval, from a
21 zoning point of view, because he's throwing money down
22 a rat hole.
23 So if from a zoning perspective you can
24 approve this, we can then come back to you and present
25 the documents in an additional public hearing so that the
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1 opponents can come and fine-tooth comb it all they want
2 and so on.
3 So that you can be sure that what you're --
4 would then be approving as consistent with what -- and
5 the health department will be here and the state will be
6 here, and you'll be here, also. And everybody can be
7 here to look at this thing and say this is what it is
8 now. Okay?
9 But unless there's a zoning determination,
10 Mr. Hirsch is in no position to spend the terrific amount
11 of money that it takes to design.
12 MS. HARBERT: And that's not what I'm asking
13 him to do. I mean, if this board does approve the
14 zoning, then I would like to have -- whether it's a work
15 session that we have or a public hearing or whatever, I
16 want to see -- because we don't usually do that. We
17 usually turn that over to staff, and I feel that they're
18 very competent. But I feel that this is a extremely
19 controversial application, and that we need to continue
20 to be involved in it.
21 MR. MORRISON: Can I ask Mr. Chilson a
22 question?
23 CHAIR KIRKMEYER: Sure.
24 MR. MORRISON: Conceptually -- because
25 normally the approval is contained in a single plat. And
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1 then the plans follow and are approved by staff. I mean,
2 what in this instance are you suggesting would be --
3 would be recorded if the board approved this
4 concept plan?
5 MR. CHILSON: Nothing would be recorded at
6 this time. Within their sound discretion it -- I believe
7 that they would have the authority to say that we approve
8 the special use permit; we find that it complies with the
9 zoning requirements as contained in our code.
10 However, the permit that we are granting here
11 is conditional upon -- and we have -- I don't know how
12 many we have now. But added to that would be a condition
13 that it is conditioned upon the board of county
14 commissioners reviewing and approving the designed
15 drawings submitted by the applicant establishing the
16 layout of the plan and the construction under the plan,
17 how the construction is to be, at a public hearing, at a
18 work session, whatever you would decide.
19 CHAIR KIRKMEYER: Are you suggesting then --
20 I mean, we have several places in these conditions where
21 the Weld County Health Department would review and
22 approve the compliance with the confined animal feed
23 operations, the dust agreement plan, the fly control
24 plan, the odor abatement plan.
25 Are you suggesting that that would all come
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1 back in front of the Board of County Commissioners at a
2 public hearing?
3 MR. CHILSON: If you wish it to.
4 CHAIR KIRKMEYER: Was that pretty much your
5 question?
6 MR. MORRISON: Well, my question, as I want
7 to be clear, I think Mr. Chilson answered that the --
8 there is no permit until that second route of hearings
9 occurs. So, you know, although the applicant's risk is
10 lessened because he has general consensus, there is
11 still the opportunity for the board to deny it if the
12 plans can't be made satisfactory and that -- so there
13 is some risk.
14 MR. CHILSON: The way I view it is the -- the
15 major risk to the applicant in zoning is this board's
16 determination that it meets the requirements of the
17 zoning code, okay, which includes basic and special
18 review, either that it is or can be made compatible with
19 the surrounding area.
20 If you find tonight in your hearts that,
21 because of the location of this lagoon, you could not
22 approve this as being compatible and could not approve
23 this contingent to that location no matter what was done
24 to it, no matter what other steps were taken to prevent
25 odor, you've got to vote no. This cannot be made
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1 compatible.
2 And in honesty to the applicant, you've got
3 to say we can't -- we will not approve that, no matter
4 what your plans and designs are.
5 But if you feel that the location of the
6 lagoon in its present situation, together with the
7 requirements that the staff has proposed with regard to
8 odor control on both the manure and the lagoon can make
9 it compatible, then, if you vote yes, we come back to you
10 after having dealt with the health department and have an
11 odor control plan that they have approved and submit it
12 to you for your review.
13 The same with plans for crossing the Smith
14 lateral ditch. The same for the actual on-site engineer
15 drainage plan with the engineer tail ponds and the
16 mechanism of how the water in the tail ponds is going to
17 be returned.
18 All of the specific questions that you have
19 asked about design which is -- ordinarily comes after you
20 have an approval. But those questions, I think, are
21 paramount in your minds. And so that would give you the
22 opportunity to see that.
23 But if you feel it simply cannot be made
24 compatible with the location of that lagoon where it is,
25 in all honesty, it would not be fair for you to say,
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1 We'll approve you conditional upon coming back with your
2 designs. And then subsequently after he has spent all of
3 that money saying, We're turning it down because of the
4 location of the lagoon.
5 CHAIR KIRKMEYER: Does the board have any
6 further questions for Mr. Hirsch or Mr. Rau?
7 MR. BAXTER: Well, I think -- the obvious
8 one, I think it's been answered. But you're stating, if
9 I understand you right, that if we would do -- say we did
10 along those lines, we would have to make some changes in
11 these conditions, because as No. 1 condition is stated,
12 2 , 000 feet, and you're saying you can't do that.
13 MR. CHILSON: That's right. If you wanted
14 to impose that as a condition, we would say we could not
15 accept it, and you might as well kill it right here
16 and now.
17 MS. HARBERT: Is there a lagoon or any
18 kind of a holding pond for the sheep facility to the east
19 of you?
20 MR. HIRSCH: Yeah, they've got a small -- I
21 don't know -- I think it's just kind of a natural swale
22 that's right directly east of my commodity shed. I don't
23 know how big it is; I never measured it.
24 MS. HARBERT: And is there a lagoon or a
25 holding pond of any kind for the cattle feeding operation
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1 across those roads west?
2 MR. HIRSCH: You'd have to ask Mr. Lind.
3 MS. HARBERT: You can't see one from
4 the road?
5 MR. HIRSCH: Well, he had a little one from
6 the air that we noticed on some aerial photos, but I
7 don't know how big it is.
8 CHAIR KIRKMEYER: Okay. So -- just so
9 I'm correct in what we were hearing, I 'm looking at
10 the conditions that the county staff recommended on
11 November 20, 1996. They're the ones that were amended
12 and changed, and we had bold print on them.
13 Mr. Chilson, you asked for a change in No. 1
14 to go from 15 days to 30 days?
15 MR. CHILSON: Let me get to it. Yes.
16 CHAIR KIRKMEYER: Okay. And then also from
17 your suggestion, I 'm understanding that everywhere in
18 these conditions where it says, Review and approval
19 by the Weld County Health Department -- I think maybe
20 we could change that to review and approval by the
21 Weld County Board of Commissioners.
22 MR. CHILSON: If you so desire. I think
23 that's within your discretion.
24 CHAIR KIRKMEYER: I just want to make sure
25 that's kind of what you were suggesting. Yes?
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1 MR. CHILSON: My suggestion is that you can
2 do about what you want to do.
3 CHAIR KIRKMEYER: Yeah, I know. I just want
4 to make sure I heard your suggestion correctly because
5 I'm going to ask the board -- yeah, I know that. But
6 there are limits -- even I have limits.
7 Because I just wanted to make sure that
8 that's clear what you were suggesting because I'm going
9 to ask the board if that's what -- specifically Connie,
10 if that's what she was suggesting or what she wishes.
11 MR. CHILSON: I think there are certain
12 conditions that you would not need to unless you wanted
13 to. For example, Item No. 4 -- excuse me, I'm sorry,
14 2 (A) (4) . You basically -- Victor Sainz is going to make
15 that determination.
16 CHAIR KIRKMEYER: Okay. Under 2 (A) , we would
17 be saying that the Board of County Commissioners would
18 review and approve that the facility has demonstrated
19 compliance with the confined animal feeding operation.
20 MR. CHILSON: Right. And Victor Sainz is
21 going to be the one to make that determination because
22 he's the person -- or his department is authorized to
23 make that determination, not this board. Okay?
24 CHAIR KIRKMEYER: Okay.
25 MR. CHILSON: We're going to have his
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1 approval to you at the time that we come here.
2 CHAIR KIRKMEYER: That's correct. Okay. And
3 then I'm going to ask the board, under 2 (B) , do you want
4 to review and approve the dust abatement plan? Does that
5 need to be changed from Weld County Health Department to
6 Weld County Board of Commissioners?
7 I mean, I'm trying to figure out what exactly
8 it is that you wanted to review and approve, Connie. Was
9 it the dust abatement plan, also?
10 MS. HARBERT: Yeah, I mean -- I think we
11 should just at least look them over.
12 MR. BAXTER: I think it's kind of a sign off
13 on our part to what the health department has done.
14 CHAIR KIRKMEYER: So
you're saying, yes,
15 you'd like to review those and ap
prove them?
16 MS. HARBERT: Yeah. Yeah.
17 CHAIR KIRKMEYER: Okay. Same with the
18 fly control plan? Same with the odor abatement plan?
19 MS. HARBERT: Right. Do we put the odor
20 abatement plan here under 2 (D) ?
21 CHAIR KIRKMEYER: I'm getting to that. We
22 can put it there. Prior to recording the plat, you could
23 put it there.
24 MR. CHILSON: Now, when we're talking
25 about odor, are we talking about what is Development
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1 Standard 21 typed up by the staff?
CHAIR KIRKMEYER: No.
2_- MS. HARBERT: We are doing paragraph 9 on
3
4 what the opponents had on page 3 of KK.
CHAIR KIRKMEYER: Development Standard 21 as
5 plan.
6 proposed by the opponents isn't the odor abatement
7
It's the Condition of Approval, as Connie stated, No. 9 ,
8
as proposed by the opponents on page 3 of Exhibit KK.
9
The one that you kept holding up and that's the one I was
10 looking at here. And that has to do with an odor
11 abatement plan for the facility.
MR. CHILSON: Now, my position on that
12 on the
would be to make your own determination based up
13 as to
14
recommendation from your staff person, who is here,
15 which you would prefer to see.
16 MR. JIRICEK: I think if we took that and
17 broke that up into two and made the submittal the first
two sentences a condition of approval . And then the
18 ment
19
last sentence, which is a long one, a develop
20 standard.
CHAIR KIRKMEYER: Make that a development
21
22 standard?
23 MR. JIRICEK: Yeah. The last sentence that
24 they need to implement the plan at the request of the
25 health department in the event. And actual submittal and
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1 approval of the plan is a condition of approval much like
2 the fly abatement and dust abatement plans.
3 CHAIR KIRKMEYER: And review and approval by
4 the board?
5 MR. JIRICEK: Yes.
6 CHAIR KIRKMEYER: Okay.
7 MS. HARBERT: Where would you put that
8 development standard?
9 CHAIR KIRKMEYER: Development standard, it
10 would be No. 22 . As a condition of approval, it would be
11 2 -- did you say (E) or (D) ?
12 MR. JIRICEK: 2 (D) .
13 CHAIR KIRKMEYER: Okay. 21 was the
14 development standard about no waste in the ditch.
15 There it is right here. Okay.
16 As far as design of the lagoon, then we would
17 need to add another -- do we need to add another
18 condition of approval about the design of the lagoon,
19 having the board review and approval?
20 MR. CHILSON: Design?
21 CHAIR KIRKMEYER: Or making sure that you
22 slope the pond to the east, or whatever that you think
23 you could do, to keep the odor down and get it as far
24 away from the residents.
25 MR. RAU: Yeah, that's what I plan on
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