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RE: ACTION OF BOARD AT SHOW CAUSE HEARING, PCSC16-0004, CONCERNING A
MINOR AMENDMENT TO A SITE SPECIFIC DEVELOPMENT PLAN, MUSR14-0030,
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 AND A 70 -FOOT FLARE) IN THE A (AGRICULTURAL)
ZONE DISTRICT AND REVIEW OF THE CERTIFICATE OF DESIGNATION -
HEARTLAND 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 11, 2016, a Probable Cause Hearing was conducted to consider
revocation of a Minor Amendment, MUSR14-0030, to 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 and a 70 -foot flare) in the A (Agricultural) Zone
District, issued to Heartland Biogas, LLC, 15445 Innovative Drive, San Diego, CA 92128, and
Certificate of Designation, issued to Heartland Renewable Energy in 2010, and
WHEREAS, on September 19, 2016, a Show Cause Hearing was conducted to consider
revocation of a Minor Amendment, MUSR14-0030, to 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 and a 70 -foot flare) in the A (Agricultural) Zone
District, issued to Heartland Biogas, LLC, 15445 Innovative Drive, San Diego, CA 92128, and
Certificate of Designation, issued to Heartland Renewable Energy in 2010, and
WHEREAS, Heartland Biogas, LLC, is the current owner of the facility located on property
being further 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, at said hearing of September 19, 2016, after taking into consideration all
testimony and evidence presented, the Board deemed it advisable to continue the matter, with
conditions, to November 14, 2016, at the hour of 9:00 a.m., to allow Heartland Biogas, LLC, an
opportunity to receive and review bids related to mitigation solutions and have a minimum of two
(2) community meetings. The conditions regarding the continuance as agreed upon by the Board
were as follows: limit gas production to 60%, limit organic material received to the current amount,
and have a minimum of two (2) community meetings with proper notice given.
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WHEREAS, at the hearing on November 14, 2016, the Board heard additional testimony
stating the Colorado Department of Public Health and Environment notified Weld County that
Heartland Biogas, LLC, was operating without a Certificate of Designation ("CD") due to the fact
that the original CD was granted to Heartland Renewable Energy, and
WHEREAS, a solid waste facility such as that operated by Heartland Biogas, LLC, is
required to operate with a valid Certificate of Designation pursuant to C.R.S. 30-20-101 et seq.,
Colorado Code of Regulations 1007-2:1 et seq., and pursuant to various provisions of the Weld
County Code, and evidence was presented these conditions have not been complied with,
specifically, review of the financial assurance by the County and other factors, and
WHEREAS, evidence was also presented and the following findings of fact were made
that Heartland Biogas, LLC, may be in violation of various Development Standards of Use by
Special Review Permit, USR-1704, and MUSR14-0030 as follows:
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 Engineering 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.
Evidence was presented that Heartland Biogas was in violation of the EDOP and the Solid
Waste Regulations due to various aspects of the operation including, but not limited to,
fencing, signage, enclosure of buildings, dust, garbage blowing, odor levels, and odor
mitigation measures such as scrubbers, as well as access to the facility, security at the facility,
to include potential secure ID card entrance as required. In addition, evidence was presented
that waste was being stored on site which may be a contradiction of the MUSR permit,
specifically unenclosed or covered storage of waste streams. Further, evidence was
presented that the odor management plan requires odor mitigation measures to be taken to
control offsite nuisance conditions, and that nuisance conditions are present, including odor,
and not being mitigated. Additionally, evidence was presented that the offloading of material
was not being done in an enclosed building, storage pits were not covered, and waste streams
were not being offloaded via a hose. Further, the storage of waste streams at the DPS system
as documented in photographs. Additionally, evidence was presented that incoming waste
was not being limited or removed in compliance with the odor management mitigation plan.
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 Engineering Design and Operations Plan.
Evidence presented indicated modified EDOP plans that are inconsistent with the originally
granted CD, to include, but not limited to, the need for any bio-filtration systems or odor
mitigation measures, and that Weld County was not notified of these modifications.
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16. Fugitive dust and fugitive particulate emissions shall be controlled on this site. The facility
shall comply with their approved particulate emissions control plan.
The photographs of milk jugs, testimony of dust and blowing debris, as well as testimony
regarding neighbors having to pick up garbage along their property lines indicated that this
standard was being violated.
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.
Heartland Biogas, LLC, previously entered into a Consent Agreement with the Colorado Air
Quality Control Division regarding its air quality, and inspections indicate that the Permits
issued by the State may be inadequate. Further, the issue was raised regarding whether the
Operations and Maintenance Plan related to the air quality has been fully complied with,
specifically with regard to the air quality permit issued January 20, 2016, which states that
compliance with the Operation and Maintenance Plan shall commence upon startup of the
anaerobic digester.
18. Exhaust removal systems shall be installed when necessary for enclosed areas and dust
producing processes and equipment. Visible stack emissions from exhaust removal, material
processing, and any combustion source shall not exceed 20% capacity (measured in
accordance with EPA Reference Method 9). There shall be no visible emissions from any
building openings (measured in accordance with EPA Reference Method 22).
Photographs and testimony demonstrating visible stack emissions were submitted indicating
an opaque emission emanating from the facility.
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.
On April 27, 2016, Phil Brewer of the Weld County Department of Public Health, a certified
odor evaluator registered an exceedance of greater than seven -to -one (7:1) dilution threshold.
30. Waste materials, not specifically addressed by other Development Standards, shall be
handled, stored, and disposed of in a manner that controls fugitive dust, blowing debris, and
other potential nuisance conditions.
The photographs of milk jugs, testimony and photographs of dust and blowing debris as well
as testimony regarding neighbors having to pick up garbage along their property lines indicate
that this standard is being violated. Further, evidence has been presented that potential
nuisance conditions exist with regard to odor caused by the facility creating a nuisance off the
facility's property.
34. The operation shall comply with all applicable rules and regulations of state and federal
agencies and the Weld County Code.
Evidence was presented that the facility is operating without a valid CD, specifically as detailed
in letter from the State on November 8, 2016, and due to the fact that the owner of the facility
has changed since the original CD was granted; evidence was presented that the facility is
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potentially operating outside the bounds of its approved Engineering Design and Operation
Plans (EDOP), which are conditions of the USR Permit; evidence was presented that the
facility is possibly in violation of the State regulations regarding operation of a solid waste
facility, specifically, the fencing requirements for the facility, signage requirements relating to
clearly indicating what waste is accepted and traffic control and emergency contact
information, 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, as
evidenced by photographs presented; evidence was presented that the facility potentially has
not complied with the terms of the Weld County Code for the permitting of a Solid Waste
Facility; additionally, the modification in the number of gallons of waste stored, the height and
number of the storage tanks, compliance with the state solid waste regulations relating to
control of nuisance conditions, relating to odors, noise, dust, and windblown debris.
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.
As noted above, this facility has been operated without a valid CD, and potentially in violation
of the air quality standards as listed above and Weld County Code Section 23-2-250(b).
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.
As outlined above, potential violations may exist based on the above listed factual allegations
and standards.
WHEREAS, on November 14, 2016, after taking into consideration all new testimony and
information, the Board determined that further probable cause existed based on the Findings of
Fact and evidence listed above for potential violations of the Use by Special Review Permit
granted to Heartland, as outlined in the above resolution and at the aforementioned hearings,
concerning Minor Amendment, MUSR14-0030, and Use by Special Review Permit, USR-1704,
issued to Heartland Biogas, LLC, as well as the Certificate of Designation issued to Heartland
Renewable Energy in 2010, and said permit and Certificate of Designation were to be further
investigated at a new Show Cause Hearing, in respect of additional violations including State
regulations related to solid waste disposal sites, the validity of the Certificate of Designation, and
various Development Standards and conditions of the MUSR and USR Permits as listed herein,
and giving adequate time to notice the public. They further deemed it advisable to schedule the
matter for Wednesday, December 21, 2016, at the hour of 9:00 a.m., to allow for public notice of
the aforementioned additional violations leading to further recommendations at the future Show
Cause Hearing, as set forth, and
WHEREAS, on November 16, 2016, the Board reconsidered the matter and rescheduled
the hearing for Monday, December 19, 2016, at 9:00 a.m., to accommodate a scheduling conflict
recognized by the applicant and the Board of Commissioners, and
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WHEREAS, on December 19, 2016, at 9:00 a.m., the Board of County Commissioners
heard additional testimony and received additional evidence which supplemented and added to
the testimony and evidence presented at the previous Probable Cause and Show Cause
hearings, and based on the evidence presented by staff, Heartland, and the public which are
incorporated into the record, the following Findings of Fact were made regarding the Certificate
of Designation, and the Development Standards of USR-1704 and MUSR14-0030:
1. Heartland Biogas, LLC, is currently operating without a Certificate of Designation.
David Kreutzer of the Colorado Attorney General's Office sent a letter, dated
November 8, 2016 stating the facility was operating without a Certificate of
Designation, Heartland's representatives submitted an application to modify the
Certificate of Designation acknowledging the change in the ownership and operation
of the facility, Weld County Department of Public Health and Environment submitted
an inspection letter dated December 12, 2016 acknowledging the lack of a Certificate
of Designation, the Colorado Department of Public Health and Environment submitted
an inspection letter dated November 30, 2016 acknowledging the lack of a Certificate
of Designation, and extensive conversations at the hearing among the Board of County
Commissioners and legal representatives from Heartland Biogas, LLC demonstrate
the failure to obtain a valid Certificate of Designation.
2. It is illegal to operate a Solid Waste Facility without a Certificate of Designation,
pursuant to C.R.S. 30-20-101 et seq., specifically 30-20-112, which requires the
suspension or revocation of a Certificate of Designation for a facility that is not
compliant.
3. Heartland Biogas is in violation of Development Standard #6 due to:
a. violating conditions of the Engineering Design and Operations Plan (EDOP)
and the Solid Waste Regulations, including, but not limited to, fencing, security
measures, and signage which are non -compliant;
b. operating the facility without a Certificate of Designation;
c. 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 a nuisance that
interferes with the use and enjoyment of property near the facility, evidenced
by over 600 complaints;
d. 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 of
the classification of the waste, despite the submission of a Solid Waste
Beneficial Use Determination by Heartland's representative on December 7,
2016;
e. receiving waste grease prior to obtaining appropriate approval and, therefore,
illegally disposing of waste grease between October 9, 2015, and February 3,
2016;
f. not being compliant with its Engineering Design and Operations Plan (EDOP)
because of the failure to shelter and cover waste streams;
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g. failing to offload manure via a hose and instead gravity feeding it into an open
lagoon;
h. 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;
i. storing manure waste in open pits;
j. not installing a bio-filter at the substrate tanks in compliance with Appendix X
of the 2013 Engineering Design and Operations Plan (EDOP);
k. violating 6 CCR 1007.1.84(B) which requires the governing body to review the
financial assurance of any facility wishing to obtain a Certificate of Designation,
which has not taken place; and
I. 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 outlines in C.R.S. 30-20-104.
4. Heartland Biogas is in violation of Development Standard #10 due to:
a. submitting Change Order requests 11, 12, and 13 which were submitted to the
State but not to the County;
b. submitting the Work Plan regarding the Groundwater Monitoring Plan waiver
request to the State but not the County;
c. 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;
d. failing to comply with the Drainage Plan due to the difference in the size of the
swale and water levels; and
e. 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 and
approved of by the County.
5. Heartland Biogas is in violation of Development Standard #17 due to:
a. 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;
b. having recorded a violation of the Air Quality standards on April 27, 2016, for
exceeding the odor threshold of 7:1;
c. 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; and
d. 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.
6. Heartland Biogas is in violation of Development Standard #21 due to:
a. 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; and
b. recording a violation of the Air Quality standards on April 27, 2016, for
exceeding the odor threshold of 7:1.
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7. Heartland Biogas is in violation of Development Standard #30 due to:
a. 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.
8. Heartland Biogas is in violation of Development Standard #34 due to:
a. failing to comply with applicable rules and regulations as evidenced by the
above references to the facility operating without a Certificate of Designation;
b. making modifications to the approved Engineering Design and Operations Plan
(EDOP) which have not been appropriately approved;
c. 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;
d. not complying with the terms of the Weld County Code for the permitting of a
Solid Waste Facility;
e. making modifications in the number of gallons of waste stored, the height and
number of the storage tanks;
f. failing to comply with the State Solid Waste Regulations relating to control of
nuisance conditions, including odors and windblown debris;
g. failing to remit their Solid Waste Surcharge fees;
h. not obtaining continued permission for the use and placement of the office
trailers because zoning permits ZPMH15-0016 and ZPMH15-0017 have
expired in November of 2016; and
i. utilizing Cargo containers on the property that do not have the necessary
building permits.
9. Heartland Biogas is in violation of Development Standard #42 due to:
a. the above listed violations,
b. failing to comply with the Development Standards in Chapter 23-2-250(B) of
the Weld County Code, including failure to operate with a valid Certificate of
Designation;
c. violating the Air Quality Standards;
d. not obtaining appropriate approval for signage; and
e. 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.
10. Heartland Biogas is in violation of Development Standard #45 as evidenced by the
above listed evidence and Findings of Fact.
WHEREAS, after hearing all testimony presented, the Board deemed it advisable to
suspend said CD and Use by Special Review Permit based on the Findings of Fact and evidence
listed above, and stated in the record of the hearings on July 11, September 19, November 14,
and December 19, 2016.
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NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that there is adequate cause, as outlined in the above Resolution and at the
aforementioned hearings, concerning Minor Amendment, MUSR14-0030, and Use by Special
Review Permit, USR-1704, issued to Heartland Biogas, LLC, as well as the Certificate of
Designation issued to Heartland Renewable Energy in 2010, and said permit and Certificate of
Designation be, and hereby are, suspended.
NOW THEREFORE, BE IT FURTHER RESOLVED by the Board of County
Commissioners of Weld County, Colorado that the facility may no longer operate due to said
suspension being effective immediately and remaining in effect until a valid Certificate of
Designation is obtained and the facility comes into compliance with all the Development
Standards.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 19th day of December, A.D., 2016.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST: ditifevC.C (,.o ;via
Weld County Clerk to the Board
BY�faP/w� .
AP
oWv Clerk to the Board
to the Board
Co ty Attorney
Date of signature:Irrlilc yIt10
Mike Freeman, Chair
Sea Co. wa " .- em
Barbara Kirkmeyer
2016-3686
PL2072
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