HomeMy WebLinkAbout790502.tiff BEFORE THE WATER QUALITY CONTROL COMMISSION
OF THE STATE OF COLORADO
In the Matter of the Proposed ) Motion to Rescind Approval ,
City of Northglenn Sewage ) For Reconsideration, For
Treatment Works to be Located ) Adjudicatory Hearing, and
in Weld County, Colorado ) For Appeal of Decision
COME NOW the Board of County Commissioners of Weld
County, the Town of Frederick, the City of Fort Lupton, the
Weisner Subdivision Preservation Association, and The Consoli-
dated Ditches Company of Water District No. 2 , and move for
reconsideration , and appeal the decision, entered orally by
the Water Quality Control Commission approving the City of
Northglenn ' s proposal to construct a sewage treatment plant
in Weld County, Colorado , and recommending to the United States
Environmental Protection Agency that a construction grant be
awarded to the proposed facility.
Those movants request that the Commission conduct a
full adjudicatory hearing regarding the siting, plans and
specifications, and grant recommendation for the proposed
sewage treatment works, and that the Commission rescind any
and all approvals it has heretofore given the proposed project.
In support of this motion , and as grounds therefor ,
those movants assign the following error to the Commission ' s
actions in this matter to date :
1. The Colorado Administrative Procedure Act ,
C. R.S. 1973 , 24-4-105 , the Colorado Water Quality Control Act ,
C.R.S. 1973 , 25-8-401 , the due process clause of the Colorado
Constitution, Article II , Section 25 , and the procedural rules
of the Commission itself , 5 C.C.R. 1002-1 ; 2 . 1 . 9 , require that
an adjudicatory hearing and notice thereof, attendant with dis-
covery rights in the parties , be afforded to the applicant or
interested parties at some stage in the administrative process.
Approval by the Commission of the location, plans and specifi-
cations and grant for the proposed sewage treatment works ,
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790502
under authority of the Water Quality Control Act, C.R. S. 1973 ,
25-8-704 , constitutes "adjudication, " under the Administrative
Procedure Act, C. R.S. 1973 , 24-4-102 (2) , (7 ) and (10) . Yet
the Commission has not yet followed the provisions of law
pertinent to an adjudicatory hearing and decision.
2 . The Water Quality Control Act C. R. S. 1973 , 25-8-
401 (4 ) specifically requires that the Commission "shall enter
its written and final order, based upon evidence in the record" .
Yet the Commission has not yet done so with respect to site
approval and review of plans and specifications for the proposed
sewage treatment works. The Administrative Procedure Act ,
C.R. S . 1973 , 24-4-102 (10) defines an "order" as the "whole or
any part of the final disposition (whether affirmative , negative ,
injunctive or declaratory in form) by any agency in any matter
other than rule making. " Until the Commission formulates and
enters its written findings and order, these movants are unable
to determine what facts have been found by the Commission and
what evidence the Commission has relied on in reaching its
decision. As a result, no final administrative action has
taken place in this matter, and these movants are unable to
exercise their right to obtain judicial review of final agency
action as contemplated by the Administrative Procedure Act ,
C.R.S. 1973 , 24-4-106 .
3 . There is no evidence , and no written findings
by the Commission, which support compliance by the Commission
with the statutory requirement of C. R. S. 1973 , 25-8-704 (2)
which directs the Commission to avoid a proliferation of small
sewage treatment works. The only evidence before the Commission
is that Northglenn ' s foreseeable sewage treatment needs can be
accommodated by the Denver-Metro sewage treatment facilities,
as at present.
4 . Neither the Division nor the Commission have com-
plied with the Commission ' s own procedures for decision-making
with respect to sewage treatment works , 5 C .C. R. 1002-12 ; 2 . 2 . 6 .
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There was no notice of and opportunity for interested parties
to inspect the Division ' s summary, analysis and recommendation
for approval , nor was a proper summary prepared by the Division .
as required by Commission Rule 2 .2 . 6 . Nor has the Commission
issued any written findings, supported by evidence in the record ,
that the requirements of Rule 2 . 2 . 6 and Part 7 of the Water
Quality Control Act have been met.
5 . The proposed sewage treatment facility does not
comply with all local zoning requirements , in contravention of
5 C.C. P,. 1002-12 ; 2 . 2 . 3 (2) (4 ) of the Commission ' s rules . In
fact, the responsible local entities have reviewed and dis-
approved placement of the facility in Weld County. The Weld
County Commissioners have passed a resolution unanimously
opposing the proposed .facility (copy attached) and no special
use permit has been obtained from Weld County, as required by
its zoning laws , nor has a Certificate of Designation been
obtained from Weld County pursuant to the Solid Wastes Disposal
Sites and Facilities Act, C.R.S. 1973 , 30-20-101 et. seq.
6. The Commission has not determined that there are
"no foreseeable adverse effects on the public health, welfare
and safety" , in contravention of 5 C.C.R. 1002-12 ; 2 . 2 . 3 (2) (6) .
The evidence to this point is that the United States Environmental
Protection Agency is sufficiently concerned about potential health
effects and crop contamination and that it has commissioned a
study of health effects , a study which has not been performed
by the Division or the Commission. The Weld County Health Depart-
ment in a letter to the Commission has opposed the facility based
on health considerations. The Dacona Reservoir takes water for
domestic irrigation from the Bull Canal ; spray irrigation is
used on raw crops which are edible; irrigation overflow runs
through residential areas of Frederick and Firestone . Thus ,
the effluent to be dumped by Northglenn into the Bull Canal can
have a direct adverse health effect on residents of the affected
area.
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7 . The Commission is not empowered to recommend
approval of a federal construction grant to this facility until
Northglenn has been designated as an operating agency and Weld
County as a management agency in accordance with applicable
provisions of the Larimer-Weld 203 Plan. The necessary inter-
governmental agreements to accomplish this have not been obtained.
8 . The Commission erroneously assumed at its July 2 ,
1979 , meeting that Northglenn would be able to commence con-
struction of the facility if the Commission on that date were
to approve plans and specifications and recommend approval of
the grant. However, the Water Quality Control Act, C.R.S . 1973 ,
25-8-704 (2) prohibits commencement of construction unless an
N.P.D.E . S . permit has been issued for the facility. The
Commission ' s own regulations define "commencement of construction , "
to include "site clearing" , "excavation" or "construction , "
5 C.C.R. 1002-12 ; 2 . 2 . 2 (3) . Since Northglenn is prohibited by
law from commencing construction of the facility at this time,
the Commission acted arbitrarily in refusing to continue its
hearing in order that parties could introduce evidence of the
type which will be available as a result of the E.P.A. study,
as well as to present whatever other evidence the parties wish
to adduce after an opportunity for full discovery has been had.
9 . The Larimer-Weld COG, whose concurrence is required
under the A-95 review procedure before such a facility can be
approved , unanimously requested the Commission not to grant
site approval . The Commission arbitrarily and in violation of
its own regulations and policies governing coordinated area wide
wate treatment management, Rule 2 . 2 . 3 (2) (3) , ignored this dis-
approval of the Larimer-Weld COG.
10 . The proposed project does not qualify as an
innovative land treatment alternative within the meaning of the
federal Clean Water Act.
The Commission should schedule the requested adjudica-
tory hearing only after Northglenn has received the required local
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approvals . Thus , a showing by Northglenn of compliance with these
requirements should be a condition precedent to issuance of the
notice of adjudicatory hearing.
Approvals heretofore given to the project by the
Commission should be rescinded, since continued approval pending
a proper hearing and decision will prejudice a full , open , impartial
adjudicatory hearing as contemplated by the Administrative Procedure
Act and the Due Process Clause of the Colorado Constitution.
At its meeting on July 2 , 1979 , the Commission recognized
the interest of each of these movants in the proceedings regarding
the Northglenn project and conferred upon these movants party status
in these proceedings . As parties these movants are affected and
aggrieved by the Commission ' s failure to follow its own regulations
and enabling Act.
The Board of County Commissions of Weld County is the
governing board of the County of Weld , a body corporate and politic
and a political subdivision of the State of Colorado, and is there-
fore vested with the authority to manage the affairs of Weld County.
The Board, and the departments of Weld County acting as agents for
the Board is charged with the maintenance of the public health,
safety, prosperity and welfare of the citizens of Weld County.
The Board is specifically charged with the enactment , administra-
tion and enforcement of zoning regulations for the non-incorporated
portions of the county pursuant to C.R.S . 1973 § 30-28-101 , et. sea.
29-20-101 , et. seq. and other state statues, including the Solid
Wastes Disposal Sites and Facilities Act , C.P..S. 1973 , §30-20-101
et. seq. The construction of the Northglenn facility proposed to
be located in an unincorporated area of Weld County will affect
the health, safety, prosperity and welfare of Weld County and its
citizens.
The City of Fort Lupton is a Colorado political sub-
division located in Weld County and is located downstream from
the proposed sewage treatment facility. A cross-connection
exists between Fort Lupton ' s water supply and the Bull Ditch.
The combination of Fort Lupton ' s water supply and the nitrate
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laden water being discharged into the Bull Canal and the
proposed sewage treatment facility can harm the City of Fort
Lupton and its citizens.
The Town of Frederick is located approximately five
(5) miles downstream on the Bull Ditch from the site of the
proposed sewage treatment facility. The facility will empty
secondarily treated sewage into the Bull Ditch which passes
uncovered through the Town of Frederick close to the municipal
school . This will be dangerous to the health and welfare of
the citizens of Frederick. Frederick is surrounded by fields
which are owned and irrigated by the Farmers Reservoir and
Irrigation Company (FRICO) members . The partially treated
effluent will be used by FRICO members to irrigate their fields ,
causing health problems to the citizens of Frederick. The pro-
posed sewage treatment facility is either located on , or in ,
the immediate vicinity of the fault. Given the close proxi-
mity of Frederick to the proposed sewage treatment facility,
this constitutes an extreme danger to the health and welfare
of the citizens of Frederick. The water that will be discharged
from the sewage treatment facility into the Bull Ditch will be
excessively high in nitrates. Frederick' s water supply will be
irreparably harmed by the high level of nitration in this water.
The Town of Frederick will be deprived of an adequate water
supply for recently annexed land if the sewage treatment facility
is constructed . The water supply of Frederick is drawn, at
least in part , from the Arapahoe Aquifer. The location of the
projected facility is on the recharge area of the Aquifer . If
the facility is constructed , it will cause irreparable damage
to the water supply of Frederick.
The Consolidated Ditches Company of Water District No. 2
is composed of thirteen ditches which divert water out of the
South Platte River below the Denver-Metro sewage treatment plant
to the confluence with the Saint Vrain River. These ditches
provide water for irrigation of more than 60 , 000 acres . The
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proposed Northglenn sewage lagoon system will take both
direct and return flow from these farmers, and the drying up
of irrigated land as part of Northglenn ' s plans will directly
injure the productivity of wells operated by farmers served
by these ditches and impair the agricultural economy of the
area.
WHEREFORE the Board of County Commissioners of
Weld County, the Town of Frederick, the City of Fort Lupton,
the Weisner Subdivision Preservation Association , and The
Consolidated Ditches Company of Water District No. 2 pray
that the Commission schedule and hold a full adjudicatory
hearing in accordance with the Administrative Procedure Act
and the Commission ' s procedural regulations , that all Commission
approvals of the Northglenn project be rescinded pending such
hearing, that notice of such hearing be given to the public
and all interested parties, that sufficient time prior to
the hearing be allowed so that parties may conduct their
discovery and prepare their respective cases , and that the
hearing not be held until Northglenn has received the local
approvals provided for the the Commission ' s regulations and the
State ' s Water Quality Act.
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For the Board of
County Commissions of Weld County
Lee D. Morrison
Assistant County Attorney
915 Tenth Street
Greeley, CO 80631
For the Town of Frederick, the
City of Fort Lupton , and The Weisner
Subdivision Presentation Association
Francis Culkin
Attorney at Law
720 South Colo. Blvd.
Denver, CO 80222
For The Consolidated Ditches' Company
of Water District No. 2
Gregory J. Hob b , Jr.
Attorney at Law
Davis, Graham & Stubbs
950 Seventeenth Street , Suite 2600
Denver, CO 80202
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RESOLUTION
RE : AUTHORIZATION FOR WELD CouNTY ATTORNEY TO TAKE WHATEVER
ACTION IS NECESSARY TO PREVENT THE NORTIIGLENN WASTEWATER
TREATMENT AND STORAGE FACILITIES FROM BEING LOCATED IN
WELD COUNTY, COLORADO.
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 the 26th day of February, the Board of County
Commissioners of Weld County, Colorado denied the application
of the City of Northglenn for a Special Use Permit for waste-
water treatment and storage facilities , and
WHEREAS, the Board of County Commissioners deems it advisable
and in the best interests of Weld County to authorize the Weld
County Attorney to take whatever action is necessary to prevent
said facilities from being located in Weld County.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Com-
missioners of Weld County, Colorado that Thomas O. David , Weld
County Attorney, be, and hereby is , authorized to take whatever
action is necessary to prevent the Northglenn wastewater treat-
ment and storage facilities from being located in Weld County,
Colorado.
The above and foregoing Resolution was , on motion duly made
and seconded, adopted by the following vote on the 7th day of
May, A.D. ,
1979 .
BOARD OF COUNTY COMMISSIONERS
ATTEST: II fvr0j ,.,n� 74,,,r,to. VELD COUNTY, COLORADO
Weld County Clerk and Recorder
and—Clerk to the Board
(
;-U
APPR&Deputy County Clerk / 7" )J' , / -/
V/ AS TO FORM:
County Attorney
DATE PRESENTED: MAY 9 , 1979
i1
CERTIFICATE OF SERVICE
I hereby certify that on this 20th day of July, 1979 ,
I placed true and correct copies of the foregoing MOTION TO
RESCIND APPROVAL, FOR RECONSIDERATION, FOR ADJUDICATORY HEARING
AND FOR APPEAL OF DECISION in the United States mail , postage
prepaid, property addressed as follows :
John D. Musick, Jr. , Esq.
Musick, Williamson , Schwartz ,
Leavenworth & Cope , P.C.
Special Counsel to the City
of Northglerin
Post Office Box 4579
Boulder, Colorado 80306
Ms. Sharon Metcalf
Assistant Attorney General
1575 Sherman Street
Denver, Colorado 80203
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