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Home My WebLink About790493.tiff RESOLUTION RE: AUTHORIZATION FOR WELD COUNTY ATTORNEY TO TAKE WHATEVER ACTION IS NECESSARY TO PREVENT THE NORTHGLENN 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: Q.<Afi c2^. �n TPa tz �t , ELD COUNTY, COLORADO Weld County Clerk and Recorder a rd rk to the Boar e u y County C erk 7 /> /7 2 < / APPR \FO AS TO FORM: c , ��,,. ,.L County Attorney 7 9(i 49 l DATE PRESENTED: MAY 9 , 1979 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 £ xgi13er A • 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 recommended 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, 790492 PLraa3 under authority of the Water Quality Control Act, C.R. S. 1973 , 25-8-J04 , 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 a:nd review of plans and snecif.ications 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 t!zeir 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 Coimnission, 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. -2- 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.R. :_002-12 ; 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 a:ad 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. -3- 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 208 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. 7.002-12; 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 trea-:ment 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 -4- approvals . Thus , a showing by Northglenn of compliance with these reggjrements 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.R.S. 1973 , §30-20-101 et. sea. 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 -5- 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 Irri.gatio:1 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 Vrai.n River. These ditches provide water for irrigation of more than 60 ,000 acres. The -6- 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. • -7- For the Board of County Commissions of Weld County % —2241414.//).-‘ 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 a-: Law 720 South Colo. Blvd. Denver, CO 80222 For The Consolidated Ditches Company of Water District No. 2 VvLs4e‘ GregoryJ.. Ti�� Attorney at Law Davis, Graham & Stubbs 950 Seventeenth Street, Suite 2600 Denver, CO 80202 -8- Hello