HomeMy WebLinkAbout20231575.tiff/7 70 f 7
BOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW
PASS -AROUND TITLE: BOCC Agenda Item - Approve Road Maintenance Agreement for:
Platte River Biogas, LLC — MUSR14-0030
DEPARTMENT: Planning Services DATE: May 16th, 202.
PERSON REQUESTING: Jazmyn Trujillo -Martinez
Brief description of the problem/issue:
The Department of Planning Services received a request from the applicant, Platte River Biogas, LLC, requesting
that the Board of County Commissioners consider approving the Road Maintenance Agreement for
(MUSR14-0030). No collateral is required with this agreement.
Weld County Planning Services, Public Works, and the County Attorney's Office have reviewed the above
mentioned signed original document and observed the following:
• All Public Works related items, of the "Road Maintenance Agreement According To Policy", are found
to be acceptable.
• This Agreement complies with the terms of the Use by Special Review Permit Resolution, as signed
by the Board of County Commissioners.
What options exist for the. Board? (include consequences, impacts, costs, etc. of options):
1. Have this BOCC Hearing item be placed on the next available agenda as part of the Consent Agenda.
2. Have this BOCC Hearing item be placed on the next available agenda as part of the Regular Agenda.
Recommendation:
Option 1. The Departments of Planning Services, Public Works, and the County Attorney's Office are
recommending approval of the Road Maintenance Agreement According To Policy for MUSR14-0030, and that
this item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda.
Approve
Recommendation
Perry L. Buck, Pro-Tem
Mike Freeman, Chair
Scott K. James
Kevin D. Ross
Lori Saine
Schedule
Work Session Other/Comments:
Pl..(se/sTM/KR /.6)
:63:66/20 /23
G/3o`o23
2023-1575
ROAD MAINTENANCE AGREEMENT ACCORDING TO
POLICY REGARDING COLLATERAL FOR IMPROVEMENTS
Platte River Biogas, LLC — MUSR14-0030
THIS AGREEMENT is made this /O day of /!last , 2023, by and between Platte River
Biogas, LLC, a limited liability company organized under the laws of the State of Delaware, whose address
is 19179 County Road 49, LaSalle, Colorado 80645, hereinafter referred to as "Property Owner," authorized
to do business in the State of Colorado, and the County of Weld, a body corporate and politic of the State
of Colorado, by and through its Board of County Commissioners, whose address is 1150 "O" Street,
Greeley, Colorado 80631 hereinafter referred to as "County."
WITNESSETH:
WHEREAS, Property Owner is the owner of the following described property in the County of
Weld, Colorado:
Part of the SE1/4 of Section 24, Township 4 North, Range
65 West of the 6th P.M., Weld County, Colorado
Flco
hereinafter referred to as "the Property," and
�;oNA
WHEREAS, Property Owner has received the Director of Planning Services approval of
--012
MUSR14-0030, and
�- F pw WHEREAS, Property Owner acknowledges that the use of MUSR14-0030 is conditional upon
DI Property Owner's understanding of road maintenance described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and covenants
contained herein, the parties hereto promise, covenant and agree as follows:
Q - ® PART I: SITE SPECIFIC PROVISIONS
- A. Haul Routes: The Property Owner shall be financially responsible for its proportional share of the
▪ County's costs associated with maintaining and/or improving designated haul/travel routes.
1.0 Haul Routes. The following roads are designated as haul/travel routes for the Property:
l• 1) East and west along CR 40.
2) North and south along CR 49.
2.0 Haul trucks shall enter and exit the Property at the approved access(es) on CR 40 and travel east -
west to the nearest paved road for further dispersal. Any County roads used by traffic associated with
MUSR14-0030 may become part of the established haul/travel routes.
3.0 Weight Limits. No travel vehicles owned by Property Owner or providing service to the project
may exceed CDOT required specifications for pounds per axle and axle configurations unless overweight
permits have been applied for and granted.
4.0 Temporary Deviations. In unusual or rare occasions, if projects mandate deviation from the
above -mentioned haul/travel route for a limited period (six months or less), Weld County Planning Services
may authorize, in writing, the deviation. In that circumstance, haul/travel vehicles will utilize paved County
Platte River Biogas, LLC — MUSRl4-0030 - RMA22-0023
Page 1 of 7
roads whenever possible. A deviation from the established haul/travel route lasting more than six (6) months
or requests for one (1) or more deviations within a 12 -month period shall authorize the County to change
the haul/travel routes designated herein and provide notice to the Property Owner.
5.0 Haul Route Signage. Property Owner shall install travel route signs, if applicable, as per Manual
of Uniform Traffic Control Devices standards, at all exit points of the Property which can be clearly seen
by drivers leaving the facility and which clearly depict County approved travel routes.
6.0 No Deviation from Permitted Haul Routes. Except as authorized by the Board of County
Commissioners pursuant to this Agreement, no use of any roads other than those specifically authorized for
use in this Agreement is permitted by haul trucks without the prior written amendment of this Agreement.
B. Maintenance Requirements:
1.0 Off -site recurring maintenance, if applicable, as required:
2.0 Repair. Property Owner shall be financially responsible for its proportional share of excavation,
patching, and pavement repair on designated haul/travel routes. The amount and extent of repair and paving
measures will be determined by site -specific conditions at the time, as determined exclusively by County
personnel.
3.0 Need for Immediate Repairs: In the event of damage to a designated haul/travel route caused by
project traffic that causes an immediate threat to public health and safety or renders the road impassible
("Significant Damage"), County shall, after inspection, notify Property Owner of such Significant Damage.
Property Owner shall identify the repair required and shall consult with County on the extent, type, timing,
materials and quality of repair (i.e. temporary versus permanent) within twenty-four (24) hours after receipt
of such notice and shall commence such repair within forty-eight (48) hours after receipt of such notice. If
Property Owner identifies Significant Damage prior to receiving notice thereof from County, Property
Owner may commence repair of such Significant Damage and shall concurrently notify County of the
extent, type, timing, materials and quality of repair (i.e. temporary versus permanent).
4.0 Repair of Road: On or before December 31 of the calendar year in which County staff has
determined through site analysis and/or pavement testing that a particular haul/travel route road portion will
require paving measures in order to protect the public health, safety, and welfare, and the County has
budgeted sufficient funds for the following calendar year to pay its share of the Off -Site
Improvement/Repair Costs, County shall notify Property Owner in writing that the Off -Site
Improvements/Repairs shall be undertaken. Within ninety (90) days of its receipt of County's notice of the
need to undertake the road maintenance repairs and/or improvements, Property Owner shall submit Off -Site
Construction Plans and Cost Estimates to County for review. Property Owner shall have sole responsibility
for the completion of the repairs and/or improvements on or before December 15 of the year following
County's notice of the need for repairs.
4.1 In County's sole discretion, County may instead notify Property Owner that County will
undertake the repairs and/or improvements. Property Owner's payment for its Proportionate Share
of the road repairs/improvements will be calculated as determined in this Agreement. Property
Owner will be invoiced accordingly for those proportional share costs.
5.0 Calculation of Property Owner's Proportional Share of Costs. The County shall notify Property
Owner of County's preliminary determination and assessment of Property Owner's proportional share of
costs of maintenance, repair, or improvements to Property Owner's designated haul/travel routes. Prior to
County's final determination and assessment, County shall provide Property Owner with a reasonable
Platte River Biogas, LLC — MUSR14-0030 — RMA22-0023
Page 2 of 7
opportunity to review, comment upon and supplement County's data, collection methodology, and
determinations. The County shall review and consider Property Owner's input prior to making a fmal
determination and assessment. The County shall have sole responsibility for determination of Property
Owner's proportional share of costs. Property Owner agrees to pay such proportional share of costs within
30 days of receiving an invoice from County.
6.0 Annual Road Inspection. County may conduct a road inspection annually with the cooperation of
Property Owner and all other Property Owners and/or Lessees who are required by County to participate in
road improvement/maintenance agreements for the haul routes designated in this Agreement. As a result of
the annual inspection, County, in its reasonable sole discretion, shall determine actual conditions and shall
further determine what road repair/improvement/maintenance work is to be performed during that
construction season. Notification to the Property Owner of the required roadway repairs will be given as
soon as the data become available.
7.0 Notification. The County shall notify Property Owner of County's preliminary determination and
assessment of Property Owner's proportionate share of costs of maintenance, repair, or improvements to
Property Owner's designated haul/travel routes. Prior to County's fmal determination and assessment,
County shall provide Property Owner with a reasonable opportunity to review, comment upon and
supplement County's data, collection methodology, and determinations. The County shall review and
consider Property Owner's input prior to making a final determination and assessment.
PART II: GENERAL PROVISIONS
A. Permits: Property Owner is required to apply for and receive all permits required by the County
or any other applicable local, State, or federal permit, including but not limited to:
1.0 Access Permits. Property Owner shall not use any access onto any County road unless and until an
access permit has been issued by the Department of Planning Services. Planning Services may condition
the issuance of an updated access permit on the amendment of this Agreement if the updated access permit
authorizes the use of an additional access point, or if there is a change in use of the current access point, as
permitted by Article XIV of Chapter 8 of the Weld County Code.
2.0 Right -of -Way (ROW) Permits. Per Article XIII of Chapter 8 of the Weld County Code, any work
occurring within County ROW requires a ROW permit issued by the Department of Public Works. No work
shall occur without said ROW permit.
3.0 Transport Permits. Per Article XV of Chapter 8 of the Weld County Code, a Weld County
Transport Permit is required for Extra -legal vehicles using Weld County roadways to ensure the operation
and movement of Extra -legal Vehicles and Loads occurs in a safe and efficient manner.
B. Enforcement and Remedies:
1.0 Violation of Terms of Agreement. If in County's opinion, Property Owner has violated any of the
terms of this Agreement, County shall notify Property Owner of its belief that the Agreement has been
violated and shall state with specificity the facts and circumstances which County believes constitute the
violation. Property Owner shall have fifteen (15) days within which to either cure the violation or
demonstrate compliance. If, after fifteen (15) days have elapsed, County believes in good faith that the
violation is continuing, County may consider Property Owner to be in breach of this Agreement.
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Carly Koppel, Clerk and Recorder, Weld County CO
iii is(PAl hlcirlr l4l'iLIiNgil*IV.ilra g I Yeti II III
Platte River Biogas, LLC — MUSR14-0030 - RMA22-0023
Page 3 of 7
2.0 Remedies for Breach by Property Owner. In the event that County determines that Property Owner
has violated the terms of this Agreement, and has failed to correct said violation, County may exercise any
or all of the following remedies, or any other remedy available in law or equity.
2.1 Withholding Permits. County may "lock" any or all lots within the Property, which
precludes the continued issuance of building permits, zoning permits, septic permits, or any other
permit issued by any department of the County.
2.2 Court Action. County may seek relief in law or equity by filing an action in the Weld
District Court or Federal District Court for the District of Colorado, except that no such civil action
or order shall be necessary to access collateral for the purpose of completing improvements as
described above.
2.3 Revocation of USR Permit. Property Owner acknowledges that failure to comply with the
terms of this Agreement constitutes cause to revoke the USR, and County may exercise this option
in its sole discretion by proceeding with revocation under the then current provisions of the Weld
County Code.
3.0 Termination of Agreement. This Agreement shall terminate upon the earliest of the following
events:
3.1 Failure to Commence. County may terminate this Agreement upon or after revocation of
the underlying land use approval under Weld County Code Section 23-2-290. However, County
may still exercise all necessary activities under this Agreement that the County determines
necessary to protect the health, safety, and welfare of the residents of Weld County.
3.2 Cessation of all Permit Related Activities. Termination of this Agreement shall occur upon
Property Owner's complete cessation of all activities permitted by the USR including any clean up
or restoration required. A partial cessation of activities shall not constitute a Termination of this
Agreement, nor shall County's issuance of a partial release/vacation constitute a Termination.
Unless informed in writing by the Property Owner of cessation of activities, and verified by the
County, cessation shall only be presumed if the County determines that the USR has been inactive
for three (3) years. Property Owner shall not be entitled to a release of Project or Warranty
Collateral unless and until the improvements required by this Agreement are completed.
3.3 Execution of Replacement Agreement. This Agreement shall terminate following County's
execution of a new Improvements Agreement with a new property owner or operator who has
purchased the Property or has assumed the operation of the business permitted by the USR, and
intends to make use of the rights and privileges available to it through the then existing USR.
3.4 Revocation of USR. This Agreement shall terminate following County's revocation of
Property Owner's USR, except that the Property Owner shall only be released from this Agreement
after the successful completion of all improvements required under this Agreement until such
revocation date, which may be completed by County after accessing Property Owner's collateral if
Property Owner fails to complete such improvements.
C. General Provisions:
1.0 Successors and Assigns.
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Carly Koppes, Clerk and Recorder, Weld County , CO
IM.1.1 l.iik V of 1 it
Platte River Biogas, LLC - MUSR14-0030 - RMA22-0023
Page 4 of 7
1.1 Property Owner may not delegate, transfer, or assign this Agreement in whole or in part,
without the prior express written consent of County and the written agreement of the party to whom
the obligations under this Agreement are assigned. A change in control of Property Owner shall
not be considered an assignment under this Agreement. Consent to a delegation or an assignment
will not be unreasonably withheld by County. In such case, Property Owner's release of its
obligations shall be accomplished by County's execution of a new Improvements Agreement with
the successor owner of the property.
1.2 County's rights and obligations under this Agreement shall automatically be delegated,
transferred, or assigned to any municipality which, by and through annexation proceedings, has
assumed jurisdiction and maintenance responsibility over all roads affected by this Agreement.
2.0 Severability. If any term or condition of this Agreement shall be held to be invalid, illegal, or
unenforceable by a court of competent jurisdiction, this Agreement shall be construed and enforced without
such provision, to the extent that this Agreement is then capable of execution within the original intent of
the parties.
3.0 Governmental Immunity. No term or condition of this Agreement shall be construed or interpreted
as a waiver, express or implied, of any of the immunities, rights, benefits, protections or other provisions,
of the Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable now or hereafter amended.
4.0 No Third -Party Beneficiary. It is expressly understood and agreed that the enforcement of the terms
and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly
reserved to the undersigned parties and nothing in this Agreement shall give or allow any claim or right of
action whatsoever by any other person not included in this Agreement. It is the express intention of the
undersigned parties that any entity other than the undersigned parties receiving services or benefits under
this Agreement shall be an incidental beneficiary only.
5.0 Entire Agreement/Modifications: This Agreement including the Exhibits attached hereto and
incorporated herein, contains the entire agreement between the parties with respect to the subject matter
contained in this Agreement. This instrument supersedes all prior negotiations, representations, and
understandings or agreements with respect to the subject matter contained in this Agreement. This
Agreement may be changed or supplemented only by a written instrument signed by both parties.
6.0 Board of County Commissioners of Weld County Approval. This Agreement shall not be valid
until it has been approved by the Board of County Commissioners of Weld County, Colorado or its
designee.
7.0 Choice of Law/Jurisdiction. Colorado law, and rules and regulations established pursuant thereto,
shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included
or incorporated herein by reference which conflicts with said laws, rules and/or regulations shall be null
and void. In the event of a legal dispute between the parties, the parties agree that the Weld County District
Court or Federal District Court for the District of Colorado shall have exclusive jurisdiction to resolve said
dispute.
8.0 Attorneys' Fees/Legal Costs. In the event of a dispute between County and Property Owner,
concerning this Agreement, the parties agree that each party shall be responsible for the payment of attorney
fees and/or legal costs incurred by or on its own behalf.
9.0 Release of Liability. Property Owner shall indemnify and hold harmless the County from any and
all liability loss and damage County may suffer as a result of all suits, actions, or claims of every nature
Platte River Biogas, LLC — MUSR14-0030 - RMA22-0023
Page 5 of 7
and description caused by, arising from, or on account of the design and construction of improvements, and
pay any and all judgments rendered against the County on account of any such suit, action or claim, and
notwithstanding Section 7.0 above, together with all reasonable expenses and attorney fees incurred by
County in defending such suit, action or claim due to the negligence or willful misconduct of Property
Owner. All contractors and other employees engaged in construction of the improvements shall maintain
adequate worker's compensation insurance and public liability insurance coverage and shall operate in strict
accordance with the laws and regulations of the State of Colorado governing occupational safety and health.
10.0 Binding Arbitration Prohibited. Weld County does not agree to binding arbitration by any extra-
judicial body or person. Any provision to the contrary in this Agreement or incorporated herein by reference
shall be null and void.
11.0 Authority to Sign. Each person signing this Agreement represents and warrants that he or she is
duly authorized and has legal capacity to execute and deliver this Agreement. Each party represents and
warrants to the other that the execution and delivery of the Agreement and the performance of such party's
obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement
binding on such party and enforceable in accordance with its terms. If requested by the County, Property
Owner shall provide the County with proof of Property Owner's authority to enter into this Agreement
within five (5) days of receiving such request.
12.0 Acknowledgment. County and Property Owner acknowledge that each has read this Agreement,
understands it and agrees to be bound by its terms. Both parties further agree that this Agreement, with the
attached or incorporated Exhibits, is the complete and exclusive statement of agreement between the parties
and supersedes all proposals or prior agreements, oral or written, and any other communications between
the parties relating to the subject matter of this Agreement.
13.0 Notwithstanding any other provision contained in this Agreement, for any conflict or potential
conflict between any term in this Agreement and the Resolution of the Board of County Commissioners
approving the underlying land use permit, the provisions of the Board's Resolution shall control. In the
event of a discrepancy between this agreement and the Weld County Code in effect at the time of the
agreement, the terms of the Weld County Code shall control.
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Carly Koppes, Clerk and Recorder. Weld County , CO
VIII KAM YA IMMI A MDi W1Ih II II
Platte River Biogas, LLC — MUSR14-0030 — RMA22-0023
Page 6 of 7
2023, by ite,\/GJ1l. os .
PROPERTY OWNER: Pla ve Biogas, LLC
By'�/�i /��/ Date
Name:
Title: 62,E V4 7704/ /O --./Y...,4=76-1
STATE OF COLORADO
SS.
County of Weld
KARILYN BAUGHMAN
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20174032330
MY COMMISSION EXPIRES AUGUST 1, 2025
The foregoing instrument was acknowledged before me this t day of P6 CUY ,
o
WITNESS my hand and official seal. �
WELD COUNTY:
ATTEST:
Weld Co
BOARD OF COUNTY COMMISSIONERS
Clerk to the Bo rd WELD COUNTY, COLORADO
/`� -
Deputy Cle/ tot - Boa.� "e-
r
Mike Freeman, Chair
JUN 0 5 2323
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Carly Koppes, Clerk and Recorder, Weld County , CO
IIIIIIIMINAMINIMAWIArilKilid 11111
Platte River Biogas, LLC - MUSR14-0030 - RMA22-0023
Page 7 of 7
020atc5_ /.57
Contract Form
Con1
PLATTE RIVER BIOGAS LLC
Entity ID*
@00047101
Contract Name.
ROAD MAINTENANCE AGREEMENT PLATTE RIVER BIOGAS,
LLC MUSR14-0030
Contract Status
CTB REVIEW
❑ New Entity?
Contract ID
7017
Contract Lead.
JTRUJILLOMARTINEZ
Contract Lead Email
jtrujillomartinez@weldgov.c
om
Parent Contract ID
Requires Board Approval
YES
Department Project
Contract Description*
ROAD MAINTENANCE AGREEMENT PLATTE RIVER BIOGAS, LLC MUSRI 4-0030 NO COLLATERAL REQUIRED
Contract Description 2
Contract Type*
AGREEMENT
Amount*
$0.00
Renewable.
NO
Gant
Department
PLANNING
Department Email
CM-Planning@weldgov.com
Department Head Email
CM-Planning-
DeptHeadnveldgov.com
County Attorney
GENERAL COUNTY
ATTORNEY EMAIL
County Attorney Email
CM-
COU NTYATTORN EY@WYELDG
OV.COM
Requested BOCC Agenda
Date.
05/24,2023
Due Date
05/20/2023
Will a work session with BOCC be required?*
NO
Does Contract require Purchasing Dept_ to be included?
NO
If this is a renewal enter previous Contract ID
If this is part of a NSA enter NSA Contract ID
Note: the Previous Contract Number and Master Services Agreement Number should be left blank if those contracts are not in
OnBase
Effeottve Date
Review Date*
05 !25/2024
Renewal Date
Termination Notice Period
Committed Delivery Date
Expiration Date*
05;25/2026
Contact Email
Contact Phone 1
Contact Phone 2
Contact Name
Approval Prvices
Department Head
TOM PARKO JR.
DH Approved Date
05/22/2023
Final Apprc l
BOCC
BOCC Signed Date
Agenda Date
06/05/2023
Originator
JTRUJ ILLOMARTI NEZ
Contact Type
Finance Approver
CHERYL PATTELL/
Purchasing Approved Date
Finance Approved Date
05/23/2023
Tyler Ref #
AG 060523
Legal Counsel
MATTHEW CONROY
Legal Counsel Approved Date
05/23/2023
RESOLUTION
RE: LIFT SUSPENSION AND REINSTATE A SITE SPECIFIC DEVELOPMENT PLAN AND
MINOR AMENDED USE BY SPECIAL REVIEW PERMIT, MUSR14-0030
(FORMERLY USR-1704), FOR A SOLID WASTE DISPOSAL SITE AND FACILITY,
INCLUDING CLASS I COMPOSTING, AN ANIMAL WASTE RECYCLING OR
PROCESSING FACILITY (AN ANAEROBIC DIGESTER -BASED RENEWABLE
ENERGY PLANT [GAS]), ALONG WITH A CONCRETE BATCH PLANT TO BE USED
FOR CONSTRUCTION OF THE FACILITY FOR THE ADDITION OF A DIGESTER
PROCESS AND A 70 -FOOT FLARE IN THE A (AGRICULTURAL) ZONE DISTRICT -
PLATTE RIVER BIOGAS, LLC
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, on July 21, 2010, the Board of County Commissioners approved the
application of Shelton Land and Cattle, Ltd., 23043 County Road 42, LaSalle, Colorado 80645,
and Heartland Renewable Energy, LLC, 2400 Trade Center Avenue, Suite 201, Longmont,
Colorado 80503, for a Site Specific Development Plan and Use by Special Review Permit,
USR-1704, for a Solid Waste Disposal Site and Facility, including Class I composting, an animal
waste recycling or processing facility (an anaerobic digester -based renewable energy plant [gas]),
along with a concrete batch plant to be used for construction of the facility for the addition of a
Digester Process System and a 70 -foot flare in the A (Agricultural) Zone District, on the following
described real estate, being more particularly described as follows:
Part of the SE1/4 of Section 25, Township 4 North,
Range 65 West of the 6th P.M., Weld County,
Colorado
WHEREAS, on February 25, 2015, the Department of Planning Services approved a Site
Specific Development Plan and Minor Amended Use by Special Review Permit, MUSR14-0030,
for a Solid Waste Disposal Site and Facility (including Class I composting, an animal waste
recycling or processing facility [an anaerobic digester -based renewable energy plant [gas]), along
with a Concrete Batch Plant to be used for construction of the facility (for the addition of a Digester
Process System and a 70 -foot flare) in the A (Agricultural) Zone District, and
WHEREAS, on July 11, 2016, the Board found sufficient Probable Cause and scheduled
a Show Cause hearing to consider whether or not said Minor Amended, MUSR14-0030, should
be revoked, and
WHEREAS, at said Show Cause hearing on September 19, 2016, the matter was
continued to November 14, 2016, reconsidered on November 16, 2016, and continued to
December 19, 2016, and
WHEREAS, at said Show Cause hearing held on December 19, 2016, after hearing all
the testimony presented, the Board found that there was adequate cause, made Findings of Fact
regarding the facility's operation without a valid Certificate of Designation and certain violations
of the Development Standards of MUSR14-0030, and suspended MUSR14-0030, and further
determined the facility was no longer allowed to operate due to said suspension until a valid
Cc:PLCTP/c,), cA(s8/Kr+),
APPL.
3 /30/22
2021-3501
PL2072
LIFT SUSPENSION AND REINSTATE A SITE SPECIFIC DEVELOPMENT PLAN AND MINOR
AMENDED USE BY SPECIAL REVIEW PERMIT, MUSR14-0030 (FORMERLY USR-1704) -
PLATTE RIVER BIOGAS, LLC
PAGE 2
Certificate of Designation is obtained and the facility is brought into compliance with all the
Development Standards, and
WHEREAS, the Board has been presented with a letter from AGPROfessionals, LLC, on
behalf of the current property owner, Platte River Biogas, LLC, 19179 County Road 49, LaSalle,
Colorado 80645, requesting reinstatement of the above -stated permits, with the understanding
that the facility would be operated as a manure -only digester facility, and
WHEREAS, the Board of County Commissioners held a public hearing on the 29th day of
December 2021, at the hour of 10:00 a.m., in the Chambers of the Board, for the purpose of
hearing said request, and
WHEREAS, at said hearing, the applicant was represented by Tim Naylor,
AGPROfessionals, LLC, 3050 67th Avenue, Suite 200, Greeley, Colorado 80634, and
WHEREAS, after hearing the recommendations of staff from the Department of Planning
Services and the Department of Public Health and Environment, along with all of the testimony
and statements of those present, and all of the exhibits and evidence presented in this matter,
and having been fully informed, the Board finds that this request shall be approved for the
following reasons:
1. It is the opinion of the Board of County Commissioners that the applicant has
satisfied the requirements to lift the suspension and reinstate the USR as
enumerated in the Board's resolution 2016-3686 as approved on December 19,
2016.
2. It is the opinion of the Board of County Commissioners that the applicant can and
will comply with the Development Standards of MUSR14-0030. The Board agrees
with the findings of staff as presented at the hearing and outlined below. The Board
finds that the applicant's proposed operation to only process manure complies with
the existing Development Standards, but that acceptance of any other food wastes
would not comply unless and until the Board issues to the applicant, after a public
hearing, a new Certificate of Designation.
A. Findings to lift Suspension:
1) Violation 1, Development Standard 6: The property owner or operator shall
comply with the applicable sections of the regulations pertaining to the
Solid Waste Disposal Sites and Facilities Act (6 CCR 1007-2) and be
constructed, operated, and monitored as detailed in the application
materials and conditions detailed in the Design and Operations Plan
approval letter, dated April 7, 2010, from the Colorado Department of Public
Health and Environment (CDPHE) in conjunction with the application
materials and conditions detailed in the Digester Processing System
Engineering Design and Operation Plan Addendum approval letter, dated
December 18, 2014, from the CDPHE.
2021-3501
PL2072
LIFT SUSPENSION AND REINSTATE A SITE SPECIFIC DEVELOPMENT PLAN AND MINOR
AMENDED USE BY SPECIAL REVIEW PERMIT, MUSR14-0030 (FORMERLY USR-1704) -
PLATTE RIVER BIOGAS, LLC
PAGE 3
a. The Board previously found the applicant was in violation of
Development Standard #6 due to violating conditions of the
Engineering Design and Operations Plan (EDOP) and Solid Waste
Regulations, including, but not limited to, fencing, security
measures, and signage which are non-compliance.
The Board hereby finds the requirement to follow an approved
Engineering Design and Operations Plan (EDOP) as
determined and regulated under the Colorado Department of
Public Health and Environment (CDPHE) Regulations
Pertaining to Solid Waste Sites and Facilities (6 CCR 1007-2,
Part 1) does not apply to facilities where only manure is used
as feedstock for digestion. However, as part of the EDOP the
site must follow its approved Closure and Post Closure Plan. In
a letter from CDPHE dated November 3, 2020, the facility's
financial assurance mechanism was released, which is only
authorized by section 4.6.13 of the Regulations after the
applicant demonstrates compliance with the Closure and Post
Closure Plan. Therefore, the Board finds that the applicant has
demonstrated compliance with the EDOP.
b. The Board previously found that the applicant was in violation of
Development Standard #6 due to operating the facility without a
Certificate of Designation (CD).
The Board hereby finds the requirement for a facility to have a
Certificate of Designation (CD) is determined and regulated
under the Colorado Department of Public Health and
Environment (CDPHE) Regulations Pertaining to Solid Waste
Sites and Facilities (6 CCR 1007-2, Part 1) and does not apply
to facilities where only manure is used as feedstock for
digestion. This is further explained in the letter from the CDPHE
"Concurrence with the Regulatory Confirmation Letter for
Revised Operations Heartland Biogas Facility, Weld County,
Colorado" from the CDPHE dated November 2, 2020. if the
facility takes any other material other than manure, it may fall
under the requirements to obtain a CD. However, because the
applicant does not propose to accept any other material at this
time, the Board finds that a CD is not required.
c. The Board previously found that the applicant was in violation of
Development Standard #6 due to failing to prevent off -site nuisance
conditions in violation of the Solid Waste Regulations regarding
odor, including a violation of Regulation 2 of an odor in excess of a
7:1 threshold as well as odor which is resulting in nuisance that
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interferes with the use and enjoyment of property near the facility,
evidenced by over 600 complaints.
• The Board hereby finds that by addressing the issues outlined
below, specifically Development Standard 17 and 21, PRB will,
by default, correct this Violation. No further action is specifically
required to correct this violation at this time.
d. The Board previously found that the applicant was in violation of
Development Standard #6 due to disposing of waste through land
application of digested solids free liquid and lagoon water without
receiving appropriate approval from the State and County, including
a Beneficial Use Determination, as admitted by the facility's
representative, stating that no such determination was necessary
because the classification of the waste, despite the submission of a
Solid Waste Beneficial Use Determination by the applicant's
representative on December 7, 2016.
The Board hereby finds the products and by-products from
manure digestion are production of biogas/renewable natural
gas and organic soil and liquid nutrient by-product. These
products and by-products do not fall under the Regulations
Pertaining to Solid Waste Sites and Facilities (6 CCR 1007-2,
Part 1) and does not apply to facilities where only manure is
used as feedstock for digestion. These products and by-
products must still comply with any and all federal, state and
local regulations.
e. The Board previously found that the applicant was in violation of
Development Standard #6 due to receiving waste grease prior to
obtaining appropriate approval and, therefore, illegally disposing of
waste grease between October 9, 2015, and February 3, 2016.
• The Board hereby finds the facility will no longer accept any
feedstock other than manure. By doing so, they will no longer
need to comply with the Regulations Pertaining to Solid Waste
Sites and Facilities (6 CCR 1007-2, Part 1).
f. The Board previously found that the applicant was in violation of
Development Standard #6 due to not being compliant with its
Engineering Design and Operations Plan (EDOP) because of the
failure to shelter and cover waste streams.
• The Board hereby finds due to the nature of the proposed
facility, an Engineering Design and Operations Plan (EDOP) is
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not required. Manure handling is outlined in PRB's operation
plan.
g.
The Board previously found that the applicant was in violation of
Development Standard #6 due to failing to offload manure via a
hose and instead gravity feeding it into an open lagoon.
• The Board hereby finds due to the nature of the proposed
facility, an Engineering Design and Operations Plan (EDOP) is
not required. Manure handling is outlined in PRB's operation
plan.
h. The Board previously found that the applicant was in violation of
Development Standard #6 due to not storing material for de -
packaging in an enclosed coverall building and that food waste,
including, but not limited to dog food, is being stored in the open.
• The Board hereby finds manure will be the only feedstock
accepted at the facility. By only accepting this feedstock there
will be no foreseeable issues with feedstocks other than manure
being stored.
i. The Board previously found that the applicant was in violation of
Development Standard #6 due to storing manure waste in open
pits.
• The Board hereby finds due to the nature of the proposed
facility, an Engineering Design and Operations Plan (EDOP) is
not required. Manure handling is outlined in PRB's operation
plan.
The Board previously found that the applicant was in violation of
Development Standard #6 due to not installing a bio-filter at the
substrate tanks in compliance with Appendix X of the 2013
Engineering Design and Operations Plan (EDOP).
The Board hereby finds due to the nature of the proposed
facility, an Engineering Design and Operations Plan (EDOP) is
not required. Additionally, PRB has outlined an odor control plan
to help with any potential off -site odors related to the facility.
k. The Board previously found that the applicant was in violation of
Development Standard #6 due to violating 6 CCR 1007.1.84(8),
which requires the governing body to review the financial assurance
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of any facility wishing to obtain a Certificate of Designation, which
has not taken place.
The Board hereby finds the requirement for a facility to have a
Certificate of Designation (CD) is determined and regulated
under the Colorado Department of Public Health and
Environment (CDPHE) Regulations Pertaining to Solid Waste
Sites and Facilities (6 CCR 1007-2, Part 1) and does not apply
to facilities where only manure is used as feedstock for
digestion. The also applies to the requirement for financial
assurance. By keeping a manure only feedstock, the facility will
not need to comply with the Regulations.
The Board previously found that the applicant was in violation of
Development Standard #6 due to failing to obtain a review from the
Board of County Commissioners regarding the ability of this
particular company, Heartland Biogas, LLC, to comply with the
factors outlined in C.R.S. §30-20-104.
• The Board hereby finds the proposed facility will no longer need
to comply with C.R.S. §30-20-104, due to the proposed
feedstock change and that the change removes the facility from
CDPHE regulations.
2. Violation 2, Development Standard 10: The property owner or facility
operator shall notify the Weld County Department of Public Health and
Environment, Department of Planning Services and the Colorado
Department of Public Health and Environment in the event of any
deviations from, or proposed changes to, the facilities Design and
Operations Plan.
a. The Board previously found that the applicant was in violation of
Development Standard #10 due to submitting Change Order
requests 11, 12, and 13 which were submitted to the State but not
to the County.
• The Board hereby finds due to the nature of the proposed
facility, an Engineering Design and Operations Plan (EDOP) is
not required. As such, the change orders are now
inconsequential since the EDOP will not be used as the facility's
operating plan.
b. The Board previously found that the applicant was in violation of
Development Standard #10 due to submitting the Work Plan
regarding the Groundwater Monitoring Plan waiver request to the
State but not the County.
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The Board hereby finds that while the conditions for a
Groundwater Monitoring Plan (GWMP) are not required for the
purposed use, the GWMP was and is required to meet closure
and post -closure requirements for the site. Based on the
CDPHE November 3, 2020, letter, releasing the facility's
financial assurance mechanism, in accordance with section
4.6.13 of the Regulations, the Board finds that the applicant has
corrected this violation.
c. The Board previously found that the applicant was in violation of
Development Standard #10 due to modifying the Engineering
Design and Operations Plan (EDOP) without appropriate
notification and approval of the County, as evidenced by the email
exchange on February 24, 2014.
• The Board hereby finds that due to the nature of the proposed
facility, an Engineering Design and Operations Plan (EDOP) is
not required. As such, the modification to the EDOP is
inconsequential since the EDOP will not be used as the facility's
operating plan.
d. The Board previously found that the applicant was in violation of
Development Standard #10 due to failing to comply with the
Drainage Plan due to the difference in the size of the swale and
water levels.
The Board hereby finds a Revised Drainage Report, including
as -built certifications, reflecting current on -site drainage
conditions will be required prior to operation and shall be added
as a Condition of Approval. The applicant submitted a letter
from a Professional Engineer indicating that he saw no
evidence that the site is not in compliance with the current
stormwater requirements in the Weld County Code.
e. The Board previously found that the applicant was in violation of
Development Standard #10 due to making modifications to the
Engineering Design and Operations Plan (EDOP), which were not
contemplated in the original grant of the Certificate of Designation
and some of which have not been appropriately provided to and
approved of by the County.
• The Board hereby finds that due to the nature of the proposed
facility, an Engineering Design and Operations Plan (EDOP) is
not required. As such, the modification to the EDOP is
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inconsequential since the EDOP will not be used as the facility's
operating plan.
3. Violation 3, Development Standard 17: The facility shall operate in
compliance with applicable Colorado Air Quality Control Regulations and
comply with any permits issued by the Air Pollution Control Division.
a. The Board previously found that the applicant was in violation of
Development Standard #17 due to failing to comply with the Air
Quality Standards as evidenced by the Consent Agreement entered
into with the State Air Quality Division which will not reach full
compliance until June of 2017.
The Board hereby finds that Compliance Order on Consent
(COC) modification. NO. 2, Case NO. 2016-201, AIRS NO. 123-
9A94 was provided indicating the transfer of the consent order
to the new operator, PRB. PRB must now comply with the COC
which outlines specific items related to the facility and its
operations. This includes complying with the Act and
Regulations in the regulation and control of air pollutants from
the facility, AQCC Regulation NO. 2, Part A, I.A., and
modification of Permit Number 12W3172. All of which will occur
upon reopening and when the feedstock is accepted for
processing.
b. The Board previously found that the applicant was in violation of
Development Standard #17 due to having recorded a violation of
the Air Quality standards on April 27, 2016, for exceeding the odor
threshold of 7:1.
The Board hereby finds that while a recorded violation did
occur, the proposed use for the digester as a manure only
digester will alleviate this issue as food waste was the driving
factor in odor creation, especially outside of typical agricultural
odors for the area. Additionally, manure does produce some
odors through Hydrogen Sulfide (H2S), but the proposed odor
management by PRB seems adequate to address this issue.
c. The Board previously found that the applicant was in violation of
Development Standard #17 due to not identifying all of the odor
sources requiring an APEN or permit, nor complying with all
permitting requirements, specifically, the failure to identify the DPS
as an emissions source.
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The Board hereby finds that Compliance Order on Consent
(COC) modification NO. 2, Case NO. 2016-201, AIRS NO. 123-
9A94 was provided indicating the transfer of the consent order
to the new operator, PRB. PRB must now comply with the COC
which outlines specific items related to the facility and its
operations. This includes complying with the Act and
Regulations in the regulation- and control of air pollutants from
the facility, AQCC Regulation NO. 2, Part A, I.A., and
modification of Permit Number 12W3172. All of which will occur
upon reopening and when the feedstock is accepted for
processing.
d. The Board previously found that the applicant was in violation of
Development Standard #17 due to not complying with its Odor
Management Plan to include the covering of offloaded wastes and
storage of manure and waste, as well as taking appropriate
mitigation measures to prevent off -site odor conditions.
The Board hereby finds PRB's Operations Plan, including the
lack of solid waste, updating equipment and appropriate
permitting, provides a reasonable plan for odor control at the
site. This also indicates the location of manure offload. Both
address appropriate mitigation measures to prevent off -site
odors, especially when considering the site will only take
manure as its feedstock.
4. Violation 4, Development Standard 21: In accordance with the Colorado Air
Quality Control Commissions Regulation Number 2, odor detected off site
shall not exceed the level of seven -to -one (7:1) dilution threshold.
a. The Board previously found that the applicant was in violation of
Development Standard #21 due to failing to comply with
Regulation 2 as evidenced by the Consent Agreement entered into
with the State Air Quality Division, which will not reach full
compliance until June of 2017.
The Board hereby finds that Compliance Order on Consent
(COC) modification NO.2, Case NO. 2016-201, AIRS NO. 123-
9A94 was provided indicating the transfer of the consent order
to the new operator, PRB. PRB must now comply with the COC
which outlines specific items related to the facility and its
operations. This includes complying with the Act and
Regulations in the regulation and control of air pollutants from
the facility, AQCC Regulation NO. 2, Part A, I.A., and
modification of Permit Number 12W3172. All of which will occur
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upon reopening and when the feedstock is accepted for
processing.
b. The Board previously found that the applicant was in violation of
Development Standard #21 due to recording a violation of the Air
Quality standards on April 27, 2016, for exceeding the odor
threshold of 7:1.
The Board hereby finds that while a recorded violation did
occur, the proposed use for the digester as a manure only
digester will alleviate this issue as food waste was the driving
factorin odor creation, especially outside of typical agricultural
odors for the area. Additionally, manure does produce some
odors through Hydrogen Sulfide (H2S), but the proposed odor
management by PRB seem adequate to address this issue.
5. Violation 5, Development Standard 30: Waste materials, not specifically
addressed by other development standards, shall be handled, stored, and
disposed in a manner that controls fugitive dust, blowing debris, and other
potential nuisance conditions.
a. The Board previously found that the applicant was in violation of
Development Standard #30 due to failing to control nuisance
conditions as evidenced by the testimony and photographs relating
to off -site nuisance conditions such as blowing trash, uncovered
trash containers, and off -site odor conditions.
The Board hereby finds the proposed use will only collect and
process manure from surrounding dairy operations. It is
anticipated that this use will not produce the same solid waste
material (general trash) associated with food waste processing.
A site inspection by County staff on November 3, 2021,
indicated no evidence of off -site nuisance conditions including,
blowing debris, uncovered containers, or off -site odor
conditions.
6. Violation 6, Development Standard 34: The operation shall comply with all
applicable rules and regulations of state and federal agencies and the Weld
County Code.
a. The Board previously found that the applicant was in violation of
Development Standard #34 due to failing to comply with applicable
rules and regulations as evidenced by the above references to the
facility operating without a Certificate of Designation.
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The Board hereby finds the requirement for a facility to have a
Certificate of Designation (CD) is determined and regulated
under the Colorado Department of Public Health and
Environment (CDPHE) Regulations Pertaining to Solid Waste
Sites and Facilities (6 CCR 1007-2, Part 1) and does not apply
to facilities where only manure is used as feedstock for
digestion. This is further explained in the letter from the CDPHE
"Concurrence with the Regulatory Confirmation Letter for
Revised Operations Heartland. Biogas Facility, Weld County,
Colorado" from the CDPHE dated November 2, 2020. If the
facility takes any other material other than manure, it may fall
under the requirements to obtain a CD. However, no other
material is proposed at this time.
b. The Board previously found that the applicant was in violation of
Development Standard #34 due to making modifications to the
approved Engineering Design and Operations Plan (EDOP) which
have notbeen appropriately approved.
• The Board hereby finds the requirement to follow an approved
Engineering Design and Operations Plan (EDOP) as
determined and regulated under the Colorado Department of
Public Health and Environment (CDPHE) Regulations
Pertaining to Solid Waste Sites and Facilities (6 CCR 1007-2,
Part 1) does not apply to facilities where only manure is used
as feedstock for digestion. However, as part of the EDOP the
site must follow its approved Closure and Post Closure Plan.
Based on. the CDPHE November 3, 2020, letter, releasing the
facility's financial assurance mechanism, in accordance with
section 4.6.13 of the Regulations.
c. The Board previously found that the applicant was in violation of
Development Standard #34 due to failing to comply with fencing
requirements for the facility, signage requirements, security and
access to the facility, the method of unloading material at the facility,
the coverage/enclosure of the unloading docks at the facility, and
the coverage/enclosure of various aspects of the facility, including
the manure storage, and storage of waste outside.
The Board hereby finds the requirement to follow an approved
Engineering Design and Operations Plan (EDOP) as
determined and regulated under the Colorado Department of
Public Health and Environment (CDPHE) Regulations
Pertaining to Solid Waste Sites and Facilities (6 CCR 1007-2,
Part 1) does not apply to facilities where only manure is used
as feedstock for digestion. However, • as part of the EDOP the
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site must follow its approved Closure and Post Closure Plan.
Based on the CDPHE November 3, 2020, letter, releasing the
facility's financial assurance mechanism, in accordance with
section 4.6.13 of the Regulations.
d. The Board previously found that the applicant was in violation of
Development Standard #34 due to not complying with the terms of
the Weld County Code for the permitting of a Solid Waste Facility.
The Board hereby finds the change in feedstock removes the
facility from Solid Waste Permitting requirements further
determined in the letter from the CDPHE "Concurrence with the
Regulatory Confirmation Letter for Revised Operations
Heartland Biogas Facility, Weld County, Colorado" from the
CDPHE dated November 2, 2020.
e. The Board previously found that the applicant was in violation of
Development Standard #34 due to making modifications in the
number of gallons of waste stored, the height and number of the
storage tanks.
The Board hereby finds only one (1) feedstock, manure, will be
stored at the site along with the various products and by-
products. County staff conducted a site inspection in November
2021 and determine that there were no remaining issues with
site layout, number of containers, height of the containers, or
number of gallons of waste stored.
f. The Board previously found that the applicant was in violation of
Development Standard #34 due to failing to comply with the State
Solid Waste Regulations relating to control of nuisance conditions,
including odors and windblown debris.
• The Board hereby finds that by complying with Violation 4 and
5 this violation is corrected.
g.
The Board previously found that the applicant was in violation of
Development Standard #34 due to failing to remit their Solid Waste
Surcharge fees.
• The Board hereby finds the WCDPHE does not have access to
waste logs to determine which waste was subject to County
Surcharge fees, so is unable to determine associated costs.
Additionally, the current owner is not part of the original
business and should not be subject to back fees/fines from the
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previous owner. While this violation is still not corrected, there
does not seem to be enough information to fully remedy this and
the Board considers this violation corrected.
h. The Board previously found that the applicant was in violation of
Development Standard #34 due to not obtaining continued
permission for the use and placement of the office trailers because
Zoning Permits ZPMH-15-0016 and ZPMH-15-0017 expired as of
November of 2016.
• The Board hereby finds that these items have been removed
from the site.
i. The Board previously found that the applicant was in violation of
Development Standard #34 due to utilizing Cargo containers on the
property that do not have the necessary building permits.
• The Board hereby finds that these items have been removed
from the site.
7 Violation 7, Development Standard 42: The property owner or operator
shall be responsible for complying with the Design and Operation
Standards of Chapter 23 of the Weld County Code.
a. The Board previously found that the applicant was in violation of
Development Standard #42 due to the above listed violations.
• The Board hereby finds that by addressing the issues outlined
above in a manner that the County deems the violation
corrected, PRB will, by default, correct this violation. No action
is specifically required to correct this violation at this time.
b. The Board previously found that the applicant was in violation of
Development Standard #42 due to failing to comply with the
Development Standards in Chapter 23-2-250(8) of the Weld County
Code, including failure to operate with a valid Certificate of
Designation.
The Board hereby finds that by addressing the issues outlined
above in a manner that the County deems the violation
corrected, PRB will, by default, correct this violation. No action
is specifically required to correct this violation at this time.
Additionally, by changing the feedstock accepted at the site a
Certificate of Designation (CD) will no longer be required.
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c. The Board previously found that the applicant was in violation of
Development Standard #42 due to violating the Air Quality
Standards.
• The Board hereby finds that by addressing the issues outlined
above, specifically Development Standard 17 and 21, PRB will,
by default, correct this violation. No action is specifically
required to correct this violation at this time.
d. The Board previously found that the applicant was in violation of
Development Standard #42 due to not obtaining appropriate
approval for signage.
• The Board hereby finds the sign has been removed and any
new sign will comply with County Code, therefore, the Board
considers this violation corrected.
e. The Board previously found that the applicant was in violation of
Development Standard #42 due to not complying with its Drainage
Plan due to the difference in the size of the swale and water levels
compared to the approved Drainage Report.
• The Board hereby finds a Revised Drainage Report, including
as -built certifications, reflecting current on -site drainage
conditions will be required prior to operation and shall be added
as a Condition of Approval.
8. Violation 8, Development Standard 45: The property owner or operator
shall be responsible for complying with all of the foregoing Development
Standards. Noncompliance with any of the foregoing Development
Standards may be reason for revocation of the Permit by the Board of
County Commissioners.
• The Board hereby finds that by addressing the issues outlined above,
in a manner that the County deems the violation corrected, PRB will,
by default, correct Violation 8. No action is specifically required to
correct this violation at this time.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the request of Platte River Biogas, LLC, to lift the suspension and reinstate
the above -stated permits for a Solid Waste Disposal Site and Facility (including Class I
composting, an animal waste recycling or processing facility [an anaerobic digester -based
renewable energy plant [gas]), along with a Concrete Batch Plant to be used for construction of
the facility for the addition of a Digester Process System and a 70 -foot flare in the A (Agricultural)
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Zone District, on the parcel of land described above be, and hereby is, granted subject to the
following condition:
1. Prior to operation the property owner shall submit a Revised Drainage Report,
including as -built certifications, reflecting current on -site drainage conditions to
Weld County Development Review for review and approval.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 29th day of December, A.D., 2021.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST: daramd ;ok
Weld County Clerk to the Board
County '= orney
Date of signature: I fb/2.
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