HomeMy WebLinkAbout20230678.tiffMariah Higgins
From:
Sent:
To:
Cc:
Subject:
Attachments:
Follow Up Flag:
Flag Status:
Esther Gesick
Tuesday, March 7, 2023 10:50 AM
Mariah Higgins
Esther Gesick; Curtis Hall; Don Dunker; Clayton Kimmi
FW: Communications Item for BOCC Agenda
DRMS Findings of Fact less than 10,000 CY of Material Removed from site - No permit
required Memo to CTB.pdf
Follow up
Flagged
Mariah,
Please process the attached item as a Communication for Monday's 3/13 Agenda.
Thanks!
Esther E. Gesick
Clerk to the Board
1150 O Street/P.O. Box 758/Greeley, CO 80632
tel: (970) 400-4226
Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed
and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please
immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents
of this communication or any attachments by anyone other than the named recipient is strictly prohibited.
From: Clayton Kimmi <ckimmi@weld.gov>
Sent: Tuesday, March 7, 2023 7:44 AM
To: Esther Gesick <egesick@weld.gov>
Cc: Curtis Hall <chall@weld.gov>; Don Dunker <ddunker@weld.gov>; Clayton Kimmi <ckimmi@weld.gov>
Subject: Communications Item for BOCC Agenda
Esther,
Attached is a memo and supporting documentation for a Findings of Fact, Conclusions of Law, and Order that we
received from the Colorado Division of Mining, Reclamation, and Safety (DRMS). We would like to have it added to an
upcoming BOCC agenda as a communications item. We would like to make these findings a matter of public
record. There is no specific project or any further actions that the Board has to take.
The memo includes the findings and the letter that we sent to the DRMS asking for an exemption on our county road
and maintenance projects where less than 10,000 cubic yards of unsuitable materials were removed from the project
and disposed of at another location.
Clay Kimmi, P.E.
Senior Engineer
CottU n ,Go+ ; ans
03/13/23
2023-0678
Weld County Public Works
1111 H St
PO Box 758
Greeley, CO 80632-0758
O: 970-304-6496 x 3741
F: 970-304-6497
Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for
the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise
protected from disclosure. If you have received this communication in error, please immediately notify sender by return
e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the
contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited.
2
MEMORANDUM
TO: Esther Gesick, CTB DATE: March 7, 2023
G O_11 -1Y FROM: Clay Kimmi, P.E., Public Works
SUBJECT: Findings of Fact, Conclusions of Law, and Order,
Weld County Public Works
Attached is a document received from the Colorado Division of Mining Reclamation and Safety (DRMS)
regarding a Petition for a Declaratory Order for mining permits on County performed roadway construction
and maintenance projects. This document needs to be placed on the BOCC agenda under the
Communications section so it can be entered into the Public Record. There are no actions that the
BOCC needs to take with respect to this document.
The Findings of Fact, Conclusions of Law, and Order (Findings) were received from the DRMS on
February 14, 2023. The Findings concluded the County was exempt from mining permits on roadway
construction and maintenance projects where less than 10,000 cubic yards of unsuitable excavation are
to be removed and disposed of at an offsite location.
Page 1 of 1
M,Active Projects \WCR 66 and WCR 41 Intersection \01-Construction\01-Inspection\Correspondence\DRMS Findings of Fact less than 10,000 CY of Material
Removed from site - No permit required Memo to CTB.docx
a
nr
February 14, 2023
COLORADO
Division of Reclamation,
Mining and Safety
Department of Natural Resources
Clay Kimmi
Weld County Public Works
P.O. Box 758
Greeley, CO 80632
Re: Findings of Fact, Conclusions of Law, and Order, Weld County Public Works
File No. M-2022-045
On February 13, 2023 the Mined Land Reclamation Board signed the enclosed Board Order
for the above captioned operation. Because this document is the final order of the Board,
it is legally binding on and affects the above -captioned operation, and we strongly advise
that you read this document carefully.
Ca ill ; • 'ar
Bo- d d nistrator
Enclosure(s)
Certified Mail
7018 2290 0001 8923 0772
cc:
Michael Cunningham
Russ Means
Jeff Fugate
Scott Schultz
Charles Kooyman
1313 Sherman Street, Room 215, Denver, CO 80203 P 303.866.3567 F 303.832.8106 https://cotorado.gov/drms
Jared Polis, Governor I Dan Gibbs, Executive Director I Virginia Brannon, Director
BEFORE THE MINED LAND RECLAMATION BOARD
STATE OF COLORADO
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
IN THE MATTER OF THE PETITION OF WELD COUNTY PUBLIC WORKS
FOR DECLARATORY ORDER, File No. M-2022-045
THIS MATTER came before the Mined Land Reclamation Board ("Board") on
December 14, 2022, via video conference to consider a petition for declaratory order
submitted by Weld County Public Works ("Petitioner"), file number M-2022-045.
Clay Kimmi appeared on behalf of Petitioner. Michael Cunningham appeared on
behalf of the Division of Reclamation, Mining and Safety ("Division").
The Board, having considered the parties' presentations, filings, and having
been otherwise fully informed of the facts in the matter, hereby enters the following:
FINDINGS OF FACT
1. The Division received a Is it Mining Questionnaire, dated November 4,
2022, from Petitioner. Petitioner described a project for the Weld County Public
Works department that would involve removing unsuitable construction materials
such as muck from bar ditches along roads in Weld County. Approximately S of the
material removed from the ditches would be used onsite as a topsoil amendment,
with the remaining materials donated to the Petitioner's contractor who would be
responsible for disposal of the remaining materials from the site.
2. The Division informed Petitioner that because materials would leave
the site, a reclamation permit would be necessary. The Division, however,
expressed support for an exemption should Petitioner seek one for projects where
less than 10,000 cubic yards of materials are removed from a site.
3. On December 2, 2022, the Petitioner submitted a petition for
declaratory order requesting an exemption. The petition explained that materials
removed from Petitioner's work sites consisted of high organic content soil, high clay
content soils, and high sulfate content soils. Those materials, which are generally
unsuitable for use in the Petitioner's work projects, are not processed into other
building materials. Instead, Petitioner's contractors have historically taken
ownership of the unsuitable materials and either used them to supplement topsoil,
incorporated them into non-structural features, or given them to adjacent
landowners. Petitioner requested an exemption from the requirement to obtain a 111
Special Operations permit for projects where less than 10,000 cubic yards of
unsuitable materials would be removed and disposed of at off -site locations.
4. At the hearing, the Division, presented testimony regarding the
Petition and its interactions with Petitioner regarding the issue. The Division did
not issue a formal decision in response to Petitioner's Is it Mining Questionnaire but
had made clear that it viewed permits as required. The Division asked Petitioner to
submit a petition for declaratory order to give it an opportunity to receive an
exemption. The Division supports the petition.
5. Petitioner presented testimony regarding the nature of the projects it
would conduct under the exemption it was requesting. Petitioner reiterated that
the materials being removed from sites that would be subject to the requested
exemption were organics or other materials that were not suitable for borrow
material or other use in Petitioner's projects.
CONCLUSIONS OF LAW
6. The Board has jurisdiction over this matter pursuant to the Colorado
Land Reclamation Act for the Extraction of Construction Materials, Article 32.5 of
Title 34, C.R.S. (2022).
7. Rule 2.5 governs declaratory order petitions. At the December 14, 2022
meeting, the Board convened a non -evidentiary hearing on the petition in accordance
with Rule 2.5.4(c). Petitioners participated and testified at the hearing.
ORDER
Based on the foregoing findings of fact and conclusions of law, the Board
hereby GRANTS the petition of Weld County Public Works and ORDERS that Weld
County Public Works is exempt from the State Reclamation Permitting
Requirements under 34-32.5-101 et seq., C.R.S. for its roadway construction and
maintenance projects, which occur within the Weld County Right of Way, where not
more than 10,000 cubic yards of unsuitable materials are to be removed and
disposed of at an offsite location.
DONE AND ORDERED this 7.3 day of -'l/ 5 2023.
FOR THE COLORADO MINED LAND
RECLAMATION BOARD
Weld County Public Works
File No. M-2022-045
Jill Nels . + , hair
2
NOTICE OF JUDICIAL REVIEW RIGHTS
This order becomes effective and final upon mailing. Any party adversely affected
or aggrieved by agency action may commence an action for judicial review by filing
a complaint with the district court within 35 days after the effective date of this
order, pursuant to section 24-4-106, C.R.S. (2022) and the Colorado Rules of Civil
Procedure. In the event that a complaint for judicial review is filed, designations of
record made in accordance with section 24-4-106(6), C.R.S. should be served on the
Board at: 1313 Sherman Street, Room 215, Denver, CO 80203, Attention: Camie
Mojar
Weld County Public Works
File No. M-2022-045 3
CERTIFICATE OF SERVICE
This is to certify that I have duly served the within FINDINGS OF FACT, CONCLUSIONS
OF LAW, AND ORDER upon all parties herein by depositing copies of same in the United States
mail, first-class postage prepaid, at Denver, Colorado, this 14th day of February 2023 addressed as
follows:
By certified mail:
7018 2290 0001 8923 0772
Clay Kimmi
Weld County Public Works
P.O. Box 758
Greeley, CO 80632
Weld County Public Works
File No. M-2022-045
By electronic mail to:
Michael Cunningham
Division of Reclamation, Mining & Safety
1313 Sherman Street, Room 215
Denver, CO 80203
Russ Means
Division of Reclamation, Mining & Safety
1313 Sherman Street, Room 215
Denver, CO 80203
Charles J. Kooyman
Senior Assistant Attorney General
Department of Law
Business and Licensing Section
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 10"' floor
Denver, CO 80203
Jeff Fugate
First Assistant Attorney General
Department of Law
Natural Resources Section
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 10th floor
Denver, CO 80203
Scott Schultz
Senior Assistant Attorney General
Department of Law
Natural Resources Section
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 10th floor
Denver, CO : 0 3
Camille Mo strator
4
PUBLIC WORKS DEPARTMENT
1 1 1 1 H STREET
P.O. BOX 758
GREELEY, COLORADO 80632
WEBSITE: www.co.weld.co.us
PHONE (970) 400-3750
December 2, 2022
Division of Reclamation, Mining, and Safety
1313 Sherman Street
Room 215
Denver, CO 80203
RE: Petition of Declaratory Order to Rule 1.4, Weld County Public Works Department,
Greeley, CO
To Whom It May Concern,
Weld County is respectfully petitioning the Colorado Mined Land Reclamation Board (Board) for
a declaratory order to Rule 1.4 of the Mineral Rules and Regulations for the Extraction of
Construction Materials. Weld County Public Works currently has several active 112 permits in
place. It has recently been brought to our attention that roadway projects technically require a 111
Special Operations permit if there are any materials being permanently removed from the project
area. The project area is defined as the limits of construction within the Weld County Right of
Way (ROW). In recent discussions with the Division, they have indicated they would be
supportive of a Petition of Declaratory Order to exempt Weld County roadway construction and
maintenance projects where not more than 10,000 cubic yards (CY) of unsuitable materials are
removed from the project area.
Weld County does approximately 4 to 5 roadway construction projects and 15 to 20 roadway
maintenance projects per year. Some of our roadway construction projects remove between 10,000
cubic yards (CY) and 50,000 CY of unsuitable materials from the project area and our maintenance
projects remove less than 10,000 CY of unsuitable materials from within the project area.
Unsuitable materials are those materials that have no value for construction purposes. The
unsuitable materials include muck (high organic content soils found in our barrow ditches and low
lying farmed areas), high clay content soils, and high sulfate content soils. The unsuitable
materials are not processed into other building materials such as road base, sand, or gravel.
Historically, on roadway construction projects, our contractor takes ownership of the unsuitable
materials and either uses them to supplement the topsoil, incorporated into non-structural features,
or are given to adjacent landowners. On maintenance projects, Weld County crews typically
dispose of the unsuitable materials by utilizing them in reclamation of a County owned property,
taking it to a permitted landfill, or by giving it to the adjacent landowners.
In the case of our roadway construction and maintenance projects where more than 1 acre of land
is disturbed, the DRMS rules and regulations are duplicated by the CDPHE Stormwater
Construction Permit. The Stormwater Construction Permit requires the construction activities
within the project area be protected from erosion. The Stormwater Construction Permit also
requires the exposed ground surfaces to be revegetated to at least 70% of the pre -construction
cover. The Stormwater Construction Permit remains in effect until the site meets 70% cover.
Part of the DRMS mission statement is to ensure that mined lands are returned to a beneficial use.
Weld County believes the beneficial use for our construction and maintenance projects is to
provide the traveling public with roads that are safe to travel. As such, Weld County respectfully
requests the Board consider our request for a Declaratory Order exempting Weld County Public
Works roadway construction and maintenance projects from Rule 1.4 which requires a 111 Special
Operations mining permit. Weld County requests the exemption apply to our roadway
construction and maintenance projects where not more than 10,000 CY of unsuitable materials are
to be removed and disposed of at an offsite location. Any projects that have more than 10,000 CY
of unsuitable materials removed from the project area will be permitted under a 111 Special
Operations mining permit.
Weld County is available to answer questions the Board may have regarding our petition.
Sincerely,
(
Puce T. Barker, Es
Weld County Attorney
Hello