HomeMy WebLinkAbout20163697.tiffHEARING CERTIFICATION
DOCKET NO. 2016-74.C
RE: A 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 -
HEARTLAND BIOGAS, LLC
A public hearing was conducted on December 19, 2016, at 9:00 a.m., with the following present:
Commissioner Mike Freeman, Chair
Commissioner Sean P. Conway, Pro -Tern
Commissioner Julie A. Cozad
Commissioner Barbara Kirkmeyer
Commissioner Steve Moreno
Also present:
Clerk to the Board, Esther Gesick
County Attorney, Bruce Barker
Assistant County Attorney, Frank Haug
Planning Services Department representative, Chris Gathman
Planning Services Engineering representative, Hayley Balzano
Public Works representative, Evan Pinkham
Health Department representative, Ben Frissell
Health Department representative, Phil Brewer
Court Reporter - Agren Blando, Shar Dobson
The following business was transacted:
Fei I hereby certify that pursuant to a notice dated September 2, 2016, and duly published
September 7, 2016, in the Greeley Tribune, a public hearing was conducted September 19, 2016,
at 9:00 a.m., to consider Show Cause, PCSC16-0004, concerning 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. At said hearing, the
Board deemed it necessary to continue the matter to November 14, 2016, at 9:00 a.m., to allow
Heartland Biogas, LLC, an opportunity to receive and review bids pertaining to mitigation solutions
and have a minimum of two (2) community meetings with proper notice given. At the
aforementioned hearing, it was also agreed upon by the Board that the continuance would be
granted with the following conditions: to 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. On November 14, 2016, the Board deemed it necessary to again continue the matter
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to December 21, 2016, at 9:00 a.m., to allow time to re -notice the public regarding further
evidence of potential violations to be addressed at that time and the Board mandated the prior
conditions remain in place from the September 19, 2016, hearing which limited materials received
to the current amount and the gas production to 60% and required the completion of any
scheduled community meetings. On November 16, 2016, the Board reconsidered the date of
December 21, 2016, and rescheduled the Show Cause hearing to be conducted on December
19, 2016, at 9:00 a.m., due to an unknown scheduling conflict.
I hereby further certify that pursuant to a notice dated December 2, 2016, and duly published
December 7, 2016, in the Greeley Tribune, a public hearing was conducted December 19, 2016,
at 9:00 a.m., to again address the aforementioned Show Cause, PCSC16-0004, to include
additional items to be addressed as noticed to the public. On December 19, 2016, County
Attorney, Bruce Barker, made this a matter of record.
In response to Commissioner Kirkmeyer, Mr. Barker confirmed the Board cannot revoke a
Certificate of Designation (CD) that does not exist, and there is no substantial evidence of a valid
CD; however, the applicant has submitted an application for a new CD which still has to be
reviewed by staff and considered by the Board to determine compliance with the USR. Mr. Barker
stated, subject to statutory requirements, when the Board is presented with the CD application,
they would need to consider compliance with all of the USR Development Standards.
Commissioner Kirkmeyer questioned whether she can proceed with a motion to suspend the USR
Permit in light of the fact that there is not a valid CD. Mr. Barker advised that notice was provided
concerning the matter of the CD, as well as the various other Development Standards, and as a
matter of due process, the respondent should be afforded the opportunity to address those
matters. Commissioner Kirkmeyer requested the Board limit testimony to the matter of the CD
because regardless of whether the respondent shows compliance with any of the other
Development Standards, they have no evidence of a valid CD, which is required under the Solid
Waste Disposal Sites and Facilities Act. Mr. Barker clarified if the USR is suspended, then it is
suspended for whatever reasons cited by the Board; however, once they come into compliance,
then the Suspension is no longer in effect. Commissioner Kirkmeyer agreed and added that the
issuance of a CD requires the Board also find compliance with the USR Development Standards,
so all of the items of notice could be considered at that time. Mr. Barker maintained that the Board
must consider the remaining Show Cause items at this time, or continue them until such time as
the Board considers the CD application to show whether or not they are in compliance with those
issues.
Commissioner Cozad stated if the Board proceeds today, they must consider the options of
suspension or revocation. In response to Commissioner Kirkmeyer, Mr. Barker confirmed, if the
USR Permit is revoked, then once a CD is in place the Board must then reconsider and reissue
a new USR Permit. She asserted the Board does not have to determine that all the cited factors
are out of compliance; if there is no valid CD, then there is no need to go into all of the other
issues. Mr. Barker advocated for allowing the respondent ample due process and the ability to
respond to the allegations.
Chris Gathman, Department of Planning Services, reviewed a summary of the activities at
the site, including actions taken by the applicant and staff review processes for the various permits
and compliance issues (to date there have been 617 odor complaints and 57 odor evaluations).
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Mr. Gathman displayed site layout maps, described the facility operations and reviewed
photographs of the property and improvements. In response to Commissioner Conway, he stated
the Building Permit was certified last week for the completion of the materials Digester Processing
Structure (DPS), with another structure having been applied for and currently under review.
EI Evan Pinkham, Department of Public Works, stated a Corporate Guarantee, in the amount
of $735,630.00, was accepted on December 14, 2016, and he reviewed the various off -site
improvements. In response to Commissioner Cozad, Mr. Haug stated the applicant did submit a
letter requesting modification of a CD; however, a new application fee has not been assessed
and it still needs to be reviewed by staff. Once that is completed, the matter needs to be presented
to, and approved by, the Board and then it must be submitted to the State, which has 30 days to
complete its review. Responding to Commissioner Conway, Mr. Pinkham confirmed the off -site
improvements were required due to warrants being met.
Hayley Balzano, Department of Planning Services Engineer representative, reviewed the
site engineering requirements and stated, based on a site visit conducted September 13, 2016, it
appears that the approved Drainage Report on file does not match the actual drainage conditions
in the field. The modifications and alternations were not filed with the Department of Planning
Services, as required by Development Standard #10. In response to Commissioner Kirkmeyer,
she referenced the site map and confirmed the plumbing and swales are in place as indicated in
the plan; however, the volume of the ponds for process and stormwater is approximately five feet
less than what is on file. Ej Responding to Commissioner Cozad, Ms. Balzano stated the
applicant needs to complete or provide staff with a copy of a drainage report that accurately
reflects the site conditions to come into compliance with Development Standard #10. In response
to Commissioner Conway, she reiterated the design plans indicated the top of the berm is 16 feet,
and the top of the water volume is 14 feet; however, a site inspection indicated an eleven -foot
berm and nine -foot water level. She also confirmed staff relies on the applicant to construct what
was submitted.
J Ben Frissell, Department of Public Health and Environment, displayed a PowerPoint
presentation and gave a brief overview of staff's intended presentation. He reviewed the
definitions of, and differences between, an Air Quality Permit and an Air Pollution Emissions
Notice (APEN) and identified the items that require an inspection by staff who then compiles a
report to be submitted to, and reviewed by, the Colorado Air Pollution Control Division (APCD).
ti Mr. Frissell described the various functions and purposes of the inspections conducted on
December 1 and 6, 2016, related to the USR Permit and the CD. He reviewed staff's findings
regarding Development Standards (DS) #17 (staff cannot release findings until the APCD has
completed its review), #18 (stack emissions and opacity), and #21 (odor detected off -site per
Regulation 2 - one violation to date). He stated as of December 15, 2016, staff has received 627
complaints and conducted 57 odor evaluations at various locations indicated on a map which he
displayed. In response to Commissioner Cozad, Mr. Frissell reiterated that staff did conduct
inspections and completed a report which was submitted to the APCD; however, the findings of
the report may not be shared until the State completes its review and authorizes release of the
information, including the status of the DPS facility. Responding to Commissioner Kirkmeyer,
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Mr. Frissell confirmed it is up to the State to determine whether an APEN is required, and he was
uncertain as to the timing of when the State will complete its review and release the findings.
Phil Brewer, indicated the APEN application was submitted last night and would have been
logged in by the State this morning, but no further formal action has been taken at this time.
Mr. Frissell continued with his presentation regarding Solid Waste, including a review of
pertinent definitions within the State regulations and noting that the Engineering Design and
Operations Plan (EDOP) Conditions from 2010 run in conjunction with USR-1704. He stated the
various EDOP revisions and resubmittals, completed in 2013, were approved by the Colorado
Department of Public Health and Environment (CDPHE) and are currently recognized as an active
document by the County and the State. a He explained the various Types I, II, and III waste
streams allowed at the facility as part of the Digester Processing System (DPS) did not require
an amendment to the CD but did require amending the USR. He gave a brief overview of the
pilot project referred to as the Digested Solids Site Operations Plan (DSSOP), approved in 2015,
and stated the applicant will need to submit a final project overview and amended EDOP for
review and approval by the CDPHE. aIn response to Commissioners Kirkmeyer and Cozad,
Mr. Frissell stated the plan requires approval by the State, with the option for referral comments
and input by the County, and he agreed to double check whether notification was provided.
Responding further to Commissioner Kirkmeyer, Mr. Frissell confirmed the letter dated
April 7, 2010, did not contain a DSSOP, and the EDOP which was approved in 2013 required a
Low Permeability Pad Work Plan be submitted, which was not completed until November, 2015,
and he agreed to double check whether or not that was approved by the County. a Mr. Frissell
continued with staff's slide presentation regarding acceptance of the waste at the site, noting the
facility operator began accepting waste approximately four (4) months prior to receiving formal
approval to do so. He listed the three approved documents for the facility: 1) EDOP dated June 7,
2013, 2) Digester Processing System EDOP Addendum dated December 18, 2014, and
3) Digestive Solids Site Operations Plan dated November 9, 2016. He referred to the Findings of
the November 14, 2016, Show Cause hearing, and reiterated that a letter from the State Attorney
General's Office, dated November 8, 2016, indicated the facility does not currently have a valid
CD. Mr. Frissell stated he conducted a site inspection on November 29, 2016, and found
compliance issues with DS #6, 7, 10, and 34, and he provided the subsequent correspondence
dates. aHe continued with staff's presentation by referring to DS #6, which requires
compliance with the Solid Wastes Disposal Sites and Facilities Act, and displayed several slides
listing the numerous items of non-compliance and inconsistencies with the EDOP which he
reviewed for the record. aIn response to Commissioner Kirkmeyer, Mr. Frissell confirmed the
Colorado Air Quality Control Commission Regulation 2 takes precedence over the nuisance
conditions listed in the Solid Waste regulations. Additionall ,the Solid Waste Act states facilities
must prevent off -site nuisance conditions, including odor. Pi He also addressed the additional
items which were presented during the Show Cause hearing, including blowing dust and garbage;
however, site inspections did not observe nuisance conditions, and therefore, staff finds that the
facility is in compliance with DS 16 and 30. He further stated the off -site odor levels at the time
of their inspections were not found to be in excess of the 7:1 dilution threshold. a Mr. Frissell
stated his inspection also found an inconsistency with DS #7; however, Commissioner Kirkmeyer
clarified that it is not relevant to this hearing because that was not one of the noticed items and it
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is not related to the EDOP. In regard to DS #10, Mr. Frissell stated it appears many of the
amendments or modifications were submitted to the State concerning the three approved
documents cited earlier; however, the County was not notified nor was a review or approval
issued. He further stated DS #34 requires adherence to the state and local regulations and,
despite two emails to the applicant, they have failed to pay the necessary Solid Waste Surcharge
Fees. a Finally, Mr. Frissell concluded his presentation by providing a summary overview of
the various compliance issues.
Ej In response to Commissioner Conway, Mr. Brewer confirmed the facility began accepting
deliveries in January, 2014, and staff started receiving complaints in 2015; however, there would
have been complaints earlier if the area residents had known who to call.
In response to Commissioner Kirkmeyer, Mr. Frissell stated the types of waste have not
changed as permitted under Type I, but staff will have to investigate whether land application was
initially permitted. Commissioner Cozad commented Class I blankets all three types, but could
be limited by the USR if specifically called out.
Chris Gathman displayed a PowerPoint presentation and stated, pursuant to DS #30, trash
containers need to be covered to prevent blowing trash and the applicant has indicated the
dumpster will be moved indoors near the offload area. In regard to DS #34, he stated the MHZP
(Mobile Home Zoning Permit) for the office trailers expired in November, 2016, therefore, the
applicant needs to either request an extension or submit an application for a new permit.
Additionally, Mr. Gathman pointed out the facility sign exceeds the maximum size of 16 square
feet, so it either needs to be modified or the applicant can request a variance. He noted the
applicant did submit a modified sign design on September 15, 2016. He further stated there are
three (3) cargo containers which do not have building permits so they need to complete the
permitting process or have them removed. Lastly, he addressed DS #42 regarding signage and
clarified once the sign is corrected and replaced then the facility will come into compliance with
that item.
Jason Thomas, Heartland Plant Manager, displayed a PowerPoint presentation and stated
he and various representatives will detail the purpose of today's hearing, provide some legal
context and an update on the project, review a third -party analysis of the odor complaints, and
request dismissal of the Show Cause hearing. He also displayed a timeline of the seven
inspections conducted since the last hearing.
Bill Garcia, with Coan, Payton and Payne, LLC, as legal representation of Heartland Biogas,
LLC, proceeded with a second PowerPoint presentation and discussed the unprecedented
number of inspections resulting in only one violation in April, 2016. Concerning the Certificate of
Designation (CD), he stated ownership of the facility was transferred from Heartland Renewal
Energy, LLC, to Heartland Biogas, LLC, in November, 2013, in accordance with proper notice and
procedures. He referenced a letter from the State Attorney General's Office (AG) and thanked
Mr. Haug for providing him with a copy so that the applicant could contact and work directly with
the AG concerning their determination of an invalid CD. He stated the process to transfer a CD
is unclear in the State statutes and the case law referenced by the AG determined that a transfer
was not required in a similar case, so it does not provide a reference for procedure. He asserted
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that since 2013, the County has approved and recorded the original plat, as well as an
Improvements Agreement and collateral, under the name of Heartland Biogas, LLC. Therefore,
the AG determined that a transfer of the CD is necessary and the applicant submitted a letter to
staff requesting a transfer to comply with the AG determination. Regarding the land
application of liquid soil amendment (LSA), Mr. Garcia stated Heartland has been authorized to
distribute LSA under a license from the Colorado Department of Agriculture since June 6, 2013.
At that time the Solid Wastes Division determined the applicant could proceed under the
Department of Agriculture which issued a Certificate of Registration for the material classified as
a product. With respect to Air Quality Standards, he stated there is no evidence of
non-compliance with stack emission and opacity under EPA Method 9, emissions from the
building openings under EPA Method 22, the Operations and Maintenance Plan under Condition
#16 of the Air Permit, or dust abatement under Regulation #1. a He proceeded with his
presentation concerning the Engineering Design and Operations Plan, which he stated is a living
document and changes in accordance with the activities of the operator. He noted there are some
differences and inconsistencies between the EDOP and the current site operations and the
manager is working through those to correct and address any inconsistencies. He stated the site
is currently registered as a Waste Grease Disposal Facility, and he clarified that waste was
accepted for storage; however, it was not utilized or processed until the Waste Grease
Certification of Registration was received. He said the applicant is still waiting on the State to
make a determination concerning an APEN for the DPS; however, they chose to submit a letter
of application on December 16, 2016. Mr. Garcia stated he replied concerning the applicability of
a Solid Waste Surcharge on November 22, 2016. He indicated much of the waste is exempt and
an non-exempt waste will be reviewed by the County to determine an appropriate surcharge.
In response to Commissioner Conway, Mr. Garcia clarified his letter did not request a
response and the applicant is open to ongoing dialogue concerning the matter. He continued with
his presentation and addressed the matter of communication, which has often excluded one party
or another throughout this process; therefore, the applicant is committed to providing the various
items, such as the Groundwater Waiver Request, which may have excluded the County and will
continue to involve everyone going forward. a Responding to Commissioner Cozad as to why
the ponds were not designed according to the approved plans, Mr. Garcia deferred to the
applicant for an answer. Ej He also discussed the outside unloading, covered storage, odor
levels, nuisance debris, signage, fencing, and biofilter. He further stated there is a Compliance
Order on Consent regarding the odor exceedance which took place on April 27, 2016, currently
the site is in compliance, and there has been no other determination of violation of the 7:1
standard. He also cited Public Services v. Van Wyk, 2001, regarding off -site odor and the
nuisance findings in that case.
Gary Kauffman, Holland Hart, represented the applicant, and in response to Commissioner
Conway, he addressed the penalties which are to be assessed in the event of a violation.
Responding to Commissioner Kirkmeyer, Mr. Garcia stated he is not aware of permission from
County staff for land application in 2013, and the previously cited case law implies the nuisance
standard rules apply. He acknowledged that the Board of Commissioners has not yet held a
hearing; however, they have been provided notice of a request for transfer of the CD, and
previously both the County and the State have performed in accordance with the CD already in
place. He noted that the letter dated November 8, 2016, from the Attorney General's Office was
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sent to the County and did not involve Heartland. He also referenced the Brief containing
documents which show the County took actions recognizing the prior CD by recording the plat,
approving the Improvements Agreement and accepting collateral, and by receiving property from
Heartland Biogas as part of the CR 49 expansion project. He reiterated the applicant received no
formal contact from the State on this matter, other than a copy of the letter which was forwarded
by the County Attorney's Office, at which time he subsequently contacted Mr. Kreitzer.
re Chair Freeman recessed the hearing for a five-minute break. Subsequently, the Board
decided to go ahead and recess for lunch and reconvene at 1:00 p.m.
Upon reconvening, Jason Thomas, facility manager, introduced George lwaszek, Trinity
Consultants, who displayed a PowerPoint presentation regarding an Odor Measurement
Summary and Conclusions. He reviewed a nasal ranger monitoring update reflecting various
dates/times/weather conditions/company specialists and displayed a Google Earth image with a
five (5) mile vicinity ring, which indicated the standard measurement locations (612 results taken
between the dates of August 30, and December 16, 2016, at standard locations, or a total of 789
results compiled within the overall five -mile ring). He noted that throughout the process there was
no violation of Regulation 2 and pointed out that there are other odor generating sources in the
area. He also explained his interpretation of Upwind and Downwind of odor generating sources
on the site and presented the conclusions. El In response to Commissioner Conway,
Mr. lwaszek explained how they determine sources of odor and deferred to the next speaker to
explain further. Responding to Commissioner Kirkmeyer, Mr. lwaszek explained the source of
odors was often determined by the direction of the wind in relation to the standard location and
other potential odor sources in the vicinity. He also described the types of odors which were
encountered in the area.
Mr. Thomas introduced Shari Libicki, consultant with Ramboll Environ and Chemical
Engineering faculty with Stanford. She displayed presentation slides addressing the distribution
of complaints, consistency with wind direction, and difficulty in using odor complaints
quantitatively. She noted she is classified as an expert in the analysis of data, not State
regulations.
Tom Haren, AGPROfessionals, spoke in reference to the presentation slides concerning
project development and the regulatory framework established as a hybrid and formalized through
the EDOP. He discussed the finished product of the solids and liquids from the digester being
classified as compost and provided a comparison with other biological products. Mr. Haren
reviewed the State determination, laboratory data for agronomic efficacy, and a study from the
2016 crop season which all indicate the facility is in compliance with Regulation 14 - Table 1.
Lastly, he reviewed the beneficial use and presented his conclusions. In response to a previous
question from Commissioner Cozad, Mr. Haren stated the project was initiated as a pilot and the
regulations were complied with as instructed by the State to finish the project and then submit
one finalized document. He stated the County historically waits for State approval before doing
a review to provide comment. Concerning the pilot project, Mr. Haren described the pad materials
utilized and the monitoring which was conducted for a year to be completed by January 1, 2017,
with the final all -encompassing EDOP to be completed within the first quarter of 2017. He also
asserted a land application permit is not required because they are distributing a 'finished
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product.' a Responding to Commissioner Kirkmeyer, Mr. Haren asserted they are not getting
paid to apply the finished product, which is classified as a liquid soil amendment, because they
are still doing product development and field testing. Responding further to Commissioner
Kirkmeyer, Mr. Haren confirmed his company was the consultant for Heartland Renewable
Energy, LLC, as well as Heartland Biogas, LLC, and he entered into a contract with each entity.
Mr. Thomas re -introduced Gary Kauffman, Holland Hart, who stated there is no specific
provision requiring a new CD when there is a change of ownership or outlining a detailed process
to do so. He also asserted a change to the CD does not automatically justif revocation of the
USR Permit, rather, the State simply dubbed this as a technical violation. IN In response to
Commissioner Kirkmeyer, Mr. Kauffman confirmed the applicant submitted the transfer request
letter on December 9, 2016, and provided a financial guarantee to meet the requirement of the
County, although it is not required. Responding further to Commissioner Kirkmeyer, Mr. Kauffman
stated they want to be responsive and are willing to satisfy the requests of the County, although
they still maintain the current CD is valid, and there has never been any concern that the company
has the financial wherewithal to address and mitigate any concerns. Responding to
Commissioner Conway, Mr. Kauffman stated their position was predicated on communications
with the State.
Mr. Thomas introduced Al Kurzenhauser, Vice -President of Bioenergy for EDFEN, who
referred to a PowerPoint presentation and gave a brief overview of his professional background.
He stated he is very familiar with the overlaps and inconsistencies between the various agencies
and environmental regulations. He stressed the benefits of their operations, which convert
organic food, animal and manure wastes and convert them into natural gas, compost and liquid
soil amendment. He discussed the various leadership and management changes which took
place in May, 2016, to better address and resolve the problems which have evolved. He stated
they are operating a $115 million facility, have budgeted $4.2 million to invest in odor -related
improvements, generate $310,000 in taxes/fees, employ 39 full-time employees, and support 42
Weld County -based feed stock suppliers which eliminates that waste from going to a local landfill.
He displayed images of the facility, process -related areas within the site, product outputs,
equipment, and recent improvements. He also reviewed the process timeline and anticipated
completion dates of upcoming mitigation measures and financial investments. Mr. Kurzenhauser
commented that there may continue to be some odor; however, they will continue to work to
improve and he requested the Board dismiss the Show Cause hearing with direction that they
report back in June, consistent with the timing of the State's Consent Order Compliance date. He
stated they have hired professionals and are investing heavily to ensure continued improvement.
He also acknowledged that although there have been numerous complaints, there has been no
subsequent violation since April, because they have been trying and working hard to address any
regulatory issues as they are raised.
Commissioner Conway asked what public assurance will be offered to the neighbors and
the County. Mr. Kurzenhauser stated the County land use and violation process has caused the
company to expedite their activities to meet State standards and deadlines. He stated the air
testing requirements require 100% capacity but the volume does not dictate the intensity of the
odor generated. He stated they have installed filters and scrubbers on the dosing tanks, buildings
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are being constructed over the handling areas, and conditions do improve somewhat during the
winter months. le Mr. Thomas confirmed that is the end of the respondent's presentation.
Chair Freeman advised the public to limit their testimony to three minutes, avoid repeating
testimony that has previously been presented, and limit comments to the new information and
items included in the Show Cause notice.
ei James Welch, surrounding property owner, stated the applicant did not have appropriate
permits for the grease storage for several months and the State statutes indicate the options of
suspension or complete revocation. He asserted that, based on the history of the facility, the
permit should be revoked.
El Miranda Arens, surrounding property owner, stated it is the responsibility of the local
government to wade through the regulations and address issues of non-compliance. Additionally,
she reminded the Board of the human factor of local residents facing off against an international,
multi -billion dollar corporation. She stated this is not just a fight over a plant that stinks, but also
the struggle against the State and County allowing them to proceed while not in compliance when
they should be watching out for the well-being of the generational residents in the area. She
stated the regulations are unclear and often not applicable, therefore, the Commissioners should
close the plant and assess penalties at all levels.
Rena Arens, surrounding property owner and fifth generation resident, stated the plant
poisons the area and disregards the well-being of area lands and water, which is an abuse of their
quality of life. She stated local representatives have undeniable proof of non-compliance and
drastically changed plans, demonstrating a lack of ability to operate responsibly. She asked the
Board to revoke the permits, shut down the plant, and penalize the operator heavily.
Chris Bennett, surrounding property owner, stated typical agricultural odors are nothing in
comparison with the biogas odor. He expressed concern that Heartland has been allowed to
operate in a state of non-compliance without the appropriate permits or CD, and may generate
wastewater which can contaminate the groundwater. He further stated they have been unable to
answer who is responsible if there is a violation of contamination, therefore, the permit should be
revoked and the operator penalized.
Mel Flaschenreim, owner of M&J Dairy, expressed his support and presented the problems
that will be caused if this facility is closed; his dairy facility is not designed to handle the waste
internally and getting a compost operation established would be cost prohibitive.
Nancy Flippin, surrounding property owner, explained her house is still filled with an awful
odor and there has not been much relief, despite the testimony of experts or their assertions that
changes and improvements are taking place. She stated she is very familiar with agricultural
odors and can tell the difference. She stated everyone was duped by the initial claims of no smell,
and she has lost confidence in the company to fix the odor problem. In response to the conflicting
testimony from the applicant's odor analysts, she explained the winds shift and change throughout
the day and likely result in repeated complaints from various directions. She questioned whether
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they know what they are doing and expressed her disappointment with the Commissioners who
are struggling with this decision, despite hundreds of public complaints.
la Steve Flippin, surrounding property owner, stated he is the closest resident within 600 feet
and they were still getting odors last Thursday and Friday. In 2014, he did not know who to call
to submit complaints when incorrect mailings and deliveries arrived at his residence. He explained
the smells can dissipate outdoors but when they collect indoors it is hard to vent. He stated the
owners/agents/employees don't have to live by the facility and have cut a lot of corners through
the years. He recollected when he toured the facility in the fall he observed the top vent of the
tanks was open, which is a major source of odor. In response to Commissioner Cozad, he stated
the tank and lagoons are also a major odor source and he confirmed his visit was one week before
the September hearing.
Eli Otis Putt, U.S. Water Systems odor misting system representative, stated the applicant has
made a significant financial investment to make improvements, the plant personnel is unified in
correcting the situation, and they are keenly aware of the gravity of the situation. Responding to
Commissioner Conway, he stated the technology is designed to neutralize the odor so that it is
acceptable to be around and he has observed a significant decrease in the intensity of the odor
when he is at the site. In response to Commissioner Cozad, Mr. Putt stated this technology is also
used in more traditional wastewater and landfill facilities, dog food plants, etc. He explained they
apply at the indoor source and use misters outdoors, so if the wind is carrying mist it is also
carrying the odor and they will dissipate and neutralize along the same path.
Jamie Hergenreder, surrounding property owner, stated her frustration started with the noise
and lights, and then the odor began to increase to the point where it impacts her sleep. She
stated this facility has been causing physical impacts for area residents, they have been forced
to spend their time calling County health staff, and she has experienced a complete lack of
empathy from the plant management.
Marjorie Griek, former Weld resident and employee of the Health Department, stated she
now resides in Lafayette, Colorado. She stated she was a master composter technician for Weld
and Larimer Counties and was the director of the Colorado Association for Recycling for 15 years.
She spoke in favor of the facility, which employs 40 people and provides positive economic
impacts. She stated it is important to keep the facility operational because it eliminates food waste
from landfills, produces a great product, and reduces emissions. She urged the Board to continue
to work with the applicant to get the issues taken care of. eIn response to Commissioner
Cozad, Ms. Griek stated, as a former Weld Health employee and in her opinion, it is important for
all parties to continue to work together with very transparent conversations to result in an asset
for the health, safety and welfare of citizens in the area.
El Dr. Lisa Scumatz described her qualifications and presented three main messages
supporting the continued operation of the facility: 1) the Front Range goal within the State's
integrated solid waste materials plan depends on this plant for progress; 2) it is essential that
organics be diverted from landfills due to space concerns and this is a marketable private plant;
and 3) this plant is situated in an ideal location to best support the needs of the region.
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Sharon Welch, surrounding property owner, stated the original plans presented by Heartland
seem to have all of the answers; however, they blatantly chose to do otherwise which has resulted
in a flawed system and the mistrust of area residents.
Rich Warner, Upstate Economic Development, stated they usually advocate to remove
burdensome regulations; however, since the site was approved things have changed, problems
have occurred and the neighbors now have a problem. He stated this is somewhat similar to the
situation at JBS which was resolved with better technology. When the public expresses issues,
he stated the County has been known to be responsive and seek solutions. Closing this project
will have an impact and he encouraged the Board to continued seeking a solution.
El Paul Shelton, surrounding property owner and third generation dairy owner, stated he has
been pursuing a working partnership with Heartland to convert dairy manure in exchange for
processed irrigation water as he has no other sustainable plan to manage the dairy manure. He
stated the Heartland facility is good for agriculture and renewable energy, the leadership have
been good working partners and he is confident they will work to overcome the current challenges.
In response to Commissioner Conway, Mr. Shelton stated if the plant is shut down his dairy
has no sustainable long term solution within their site. The produced water applied to the crops
is highly regulated by the Department of Public Health, and it is similar to dairy waste water as far
as nutrient content and characteristics. In response to Commissioner Moreno, he stated his diary
produces 10-12 semi -trucks of manure, daily.
Michael Morris, surrounding property and business owner, expressed his frustration that the
plant has been allowed to take over his life. He stated he wants to be a good neighbor but the
testimony from the California odor specialist, who spoke previously, essentially called the
neighbors' complaints into question. He stated, despite the efforts of staff, this has morphed into
a mess as a result of former decisions and the neighbors are relying on the Commissioners to
make this right. He asserted, once it is fixed, then he has no issue with bringing the facility back
online and re -instating operations.
Deb Morris, surrounding property owner, said she was surprised to see that Heartland was
surprised to be inspected, and she was also surprised to learn about smell memory. She stated
her family has been in Weld County for six generations and the dairy odor that comes from
1/4 mile away is completely different from the biogas odor that impacts them from two miles away.
She stated the County needs to enlist a panel of experts to ensure the County's interest is
protected. She expressed dismay that the Heartland owner stated this process has served to
inform the company about the regulations when they should have been experts from the
beginning; the neighbors certainly should not be forced to become experts. She stated Heartland
is a multimillion dollar company that has invested a lot of money in this venture; however, she has
invested $350,000 in her property which is a significant amount in relation to her income.
Richard Walters (and wife Kathy), surrounding property owners, stated they are the third
closest home from the site. He stated it smells on the weekends so they cannot enjoy their
property and they want the permit to be revoked and the company penalized. He also suggested
adjusting the threshold to the 2:1 or 4:1 level in response to the number of complaints.
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El Kathy Hoyland, surrounding property owner, asserted that since day one the plant has been
operated without all of the necessary permits and in complete disregard of the county and state
regulations. She stated Heartland has enlisted the services of various paid experts, therefore,
they have no excuse for not being informed; however, she was insulted by the testimony of
California odor experts questioning the validity of the neighbors' complaints. She expressed
frustration at being forced to cancel events at their home as a result of the odors generated by
the plant that permeate their home and are difficult to air out. She stated she understands the
position of the dairy operators and the employees who get to go home, but the residents have
nowhere else to go. She stated the Commissioners will be setting a precedent if they allow a
Class I facility to operate outside of the regulations and she respectfully requested revocation of
the permit and an enforcement measure with penalties.
Julie Reynolds, surrounding property and small business owner, stated it is the responsibility
of the Commissioners to ensure the health and welfare of County residents. As a business owner
she paid the necessary fees, complied with the USR permitting process to operate her business
in compliance with the regulations, and she has invested a lot of money in her business. She
questioned whether she would be allowed to continue operating if her business was out of
compliance, noting the answer could potentially set a dangerous precedence. She also
commented that, unlike Heartland, if her business was the cause of a nuisance condition she
would cease the activity rather than masking it or continuing without some sort of treatment.
Ross Justice, surrounding property owner, expressed frustration that despite three hearings
the company has been unable to demonstrate improvement. He stated this was a good idea and
the plant operator should have abided by the original plans before investing so much, and
commented that the plant is not really 'Green' if they are piping in fossil fuel to operate a plant to
produce gas to sell elsewhere. He stated their family has been forced to cancel Thanksgiving
and other personal events due to the negative odor impact. He further stated the Commissioners
were elected to protect the rights of county citizens; however, the issues of noncompliance have
been allowed for years, yet the company officials are only now committing to fixing the problem
because the neighbors are finally speaking up. He stated he is not sure it can be fixed, therefore,
the permits should be revoked and the company penalized.
El Connie Williams, Eaton resident, recognized that Heartland is in the fight of its life but they
should not have brought in professionals to trivialize the livelihood and welfare of local families,
land owners and businesses. She stated the solution is not black and white; Heartland it is not
creating a bad product, but the processing must be executed properly if this is to succeed.
Ms. Williams asserted that since the inception of this plant the County has been duped by
EDF/Heartland, their consultant and plant operators who have taken short cuts around the various
regulations and skillfully tried to point to other agricultural producers in the County as the source
of the problem. Meanwhile, the unintended consequences have been borne by the community
while Heartland continues to operate with complete disregard for the impact. She further stated
a suspension may have been an option in the past; however, the only option at this point is to
revoke, get the problem fixed and give the community members their lives back.
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Jim Welch, surrounding property owner, asked the Board to disallow any of Mr. Garcia's
comments regarding Mr. Krietzer's position on the matter because he is not here to speak for
himself. He also questioned the credibility of the odor testimony presented by the respondent's
experts. He noted that although Heartland now acknowledges the presence of odor and the need
to correct the problem, they should not have taken shortcuts and then now praise themselves for
spending the money they should have spent in the first place.
Dave Kisker, Johnstown resident, stated he is not an area resident impacted by an odor;
however, it is an issue of concern for any County resident if a large business is allowed to operate
outside of the permits and regulations. He noted the owner only moved quickly as a result of this
process and if the Board dismisses the Show Cause they will lose their enforcement ability. He
stated unless the plant operator is willing to agree to tighter restrictions, the only viable option is
to revoke, otherwise residents will have to live with it.
Bob Yost, owner of A-1 Organics and primary supplier to Heartland, asserted this facility is
the solution to responsibly handle food -based waste with a digester; composting is not ideal and
this project is very innovative and needs real life time to be effective. He stated Weld County is
an established leader in renewable energy. He conceded the odor that has been discussed has
a source that needs to be identified and fixed; however, he supports the facility and its mission
because the issues can be corrected, there is no impact to the public health and safety, and he
is confident the filters have been making a difference.
Scott McDonald, McDonald Farms Enterprises, stated he hauls waste to the facility from
various sites around the County and he has been at the subject site on various dates/times to
observe the odor situation. He stated it is important to handle this situation properly and make
this site work because if the project is closed there will be an immediate impact on 25-30 employee
families and numerous agricultural facilities will be forced to start transporting manure back to the
landfills. He has been working with Heartland for many years and has been impressed by their
operations.
Calvin Ratzliff, surrounding property owner, described his negative experiences in the last
six months despite testimony that there have been improvements. He stated he works in the oil
and gas industry and when they have a complaint issue the well is shut-in until the problem is
corrected and the same should happen here.
El Chair Freeman called for a 10 minute recess at 4:12 p.m.
El Upon reconvening, Mr. Gathman referred to DS #6 and stated if it is determined that a new
CD is required, the USR would require further amendment. Commissioner Kirkmeyer disagreed
based on DS #10 which speaks to changes to the EDOP in the future and requires approval from
all relevant agencies.
Mr. Kurzenhauser stressed they take this situation very seriously and it was not their intent
to insult or question the impacts on the neighbors. However, although odor is very difficult to
quantify, they are committed to fixing and investing in the site so that they can remain a reputable
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PAGE 14
company working with Weld County companies. He explained, unlike oil and gas operations, it
is not a simplistic process to shut down the subject facility; it is similar to a living project and would
take several months to accomplish with no immediate remedy to the odor. He requested
dismissal, or at least an extension of the Show Cause hearing to June, 2017, to afford adequate
time to complete the mitigation process.
Commissioner Kirkmeyer referred to Exhibits 28 and 29 contained within the applicant's
Hearing Brief which she read portions of for the record and asked why the applicant applied for a
Solid Waste Beneficial Use Determination from the State. Mr. Haren explained the contents of
those letters indicate that when you meet the specifications of Regulation 14, Table 1, it is no
longer a "solid waste," it is a "product" subject to regulation by the Department of Agriculture to
be labeled as a liquid soil amendment. He stated there is not a defined process and it was
suggested a Solid Waste Beneficial Use Determination would be an efficient way to transfer the
oversight to the Department of Agriculture, therefore, in an abundance of caution, they followed
the State's recommendation. He further stated there is no certificate or document issued by the
State to show the production of a product, other than meeting the requirements of Table 1.
Responding to Commissioner Cozad, Mr. Haren stated he does expect a response from the
State but he is uncertain of the timeframe. a Commissioner Kirkmeyer referenced Exhibit 20,
dated October 8, 2014, which speaks to amending the EDOP and a determination that an
amended CD is unnecessary; however, it does not address the issue of a transfer of ownership.
Mr. Kauffman responded, that prior to the copy of the letter dated November 9, 2016, the
respondent had received no correspondence indicating the need for a documented transfer of
ownership or invalid CD. El Additionally, she referred to Exhibit 30 which is a letter from the
Colorado Department of Public Health and Environment, dated November 30, 2016, encouraging
Heartland to apply to Weld County for a CD, followed by Exhibit 25 which was a letter from
Heartland requesting to formally modify the CD, dated December 9, 2016. Mr. Kauffman stated
they chose to follow the direction of State regulators, versus fighting the Attorney General's
position through court. He stated Heartland has done everything asked of them to clear up the
process in an effort to move forward. Commissioner Kirkmeyer asserted that the Solid Waste
and Disposal Sites and Facilities Act requires the governing body having jurisdiction must review
and approve a change of ownership. Mr. Kauffman responded with the logic that, because the
original owner did not provide financial assurance, there was nothing to transfer under that
provision. eCommissioner Cozad stated the determination of the Attorney General's Office
was that a CD is not transferable because it is more than just a simple zoning document, and
further, it is the responsibility of the Board to ensure the owner/operator meets the requirements
under the CD. She stated the case law referenced previously is different because in that case
the City of Denver was named on the CD. Mr. Kauffman maintained the processes are not clearly
defined as to what is necessary to address the transfer. Commissioner Cozad disagreed because
the letter states the facility "no longer has a CD." She noted that during the past several years the
County continued taking actions to move forward because the State had not yet made this
determination. Mr. Kauffman stated the letter is the opinion of Mr. Krietzer as an Assistant
Attorney General; however, there is no formal position and Heartland simply wants to move
forward with the new interpretation to complete remainin• processes. He reiterated the letter is
mild as to a recommendation of what should be done. Mr. Garcia stated they have made an
application for a transfer of the CD and it remains for the County to review and then forward to
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PAGE 15
the State for its review. a Commissioner Kirkmeyer stated the rule requires the governing
body to review and approve a transfer and she questioned if they understood the process
regarding the transfer, versus just making amendments to the EDOP. She also referred to
Exhibit 15 from the Heartland Brief addressing the transfer of ownership. Mr. Kauffman requested
an opportunity to research the Brief for a response.
In response to Commissioner Kirkmeyer, Mr. Frissell stated the DSSOP and Change
Request 10 were submitted to the CDPHE on July 1, 2015. He stated on September 20, 2015,
the State approved the DSSOP and a full-scale pilot project, with conditions. He explained one
of the conditions required an updated Beneficial Use Determination (BUD). Additionally, in a letter
dated September 8, 2016, the State informed Heartland that the waste generated from the
digestion process is considered a solid waste, and water generated from the anaerobic digester
is waste water. Based on that determination, Heartland did submit a BUD on December 7, 2016.
In response to Commissioner Kirkmeyer, Mr. Frissell explained there are certain types of
land application methods and materials that do not require a Use by Special Review permit;
however, staff will need to do some additional review to determine whether a Beneficial Use
Determination (BUD) material requires a USR. Mr. Gathman concurred Planning Services has
not dealt with this type of land application either. Mr. Frissell stated land application of biosolids
must be reviewed and allowed through a process of the Board of Health but at this time it is not
clear which classification name would be utilized. Mr. Barker reviewed Section 23-3-40 of the
Weld County Code and stated if it is determined to be a biosolid, then it is not listed as a USR
and stated he will continue to review the list of uses allowed as a Use by Right. Commissioner
Cozad referenced the uses approved in the title of the USR. Mr. Frissell stated the liquid soil
amendment was described in the 2013 EDOP; however, since that time staff, interpretations and
requirements have changed and it has evolved into a possible requirement of the BUD and an
amended EDOP.
Mr. Kauffman referenced Brief Exhibits 15, 16 and 17 documenting the Change Request
subsequent plat using the new name. Commissioner Kirkmeyer referenced Exhibit 14 and
reiterated her request for evidence that the County reviewed and approved the transfer of
ownership, not the State, other than a brief reference buried in an EDOP update. Mr. Kauffman
stated Exhibit 20 indicates direction that there was no need to change the CD and he maintained
that all of the work and permitting was done aboveboard.
Ei Mr. Garcia clarified some previous comments to make clear that LSA (liquor soil amendment)
is compost material, and the reference to biosolids as defined in the State regulations does not
apply to this facility.
Commissioner Kirkmeyer stated when the USR and CD were approved she was excited
about the benefits of the facility, but she is no longer proud of what is going on. She agreed with
the testimony that it has `morphed into a mess.' She stated the Commissioners, County staff, and
area residents have spent countless hours researching documents related to this facility;
however, it is the job of the Board of Commissioners to protect the health and welfare of the
residents. She stated although she understands the benefits to the County, today's testimony
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PAGE 16
about the merits of the site was not relevant because this is a solid waste disposal facility subject
to a compliance hearing due to negative impacts on residents living within proximity to a company
that has not been a good neighbor. She also agreed the testimony of the air quality specialists
was disrespectful in discounting the validity of the complaints. Commissioner Kirkmeyer stated
when the Probable Cause hearing started she was not aware of the rule regarding the transfer of
ownership and she emphasized that, unlike other facilities, there was a violation at the subject
site. IEJ She stated she is prepared to revoke the permit based on the findings cited in the draft
Resolution. Additionally, she stated there is also a violation of Regulation 6CCR1007.1.8.4B
which states the CD may not be transferred unless the Financial Assurance has been reviewed
and approved by the State Health Department and the governing body (Board of Commissioners)
and that has never occurred. She stated burying it in an EDOP revision is not sufficient.
Commissioner Kirkmeyer referred to the letter from the Attorney General's Office which rendered
the opinion that pursuant to Section 30-20-102(1), C.R.S., there is not a valid CD for the site
because although the two company names are similar, they are not related to each other and a
transfer was never properly completed. Furthermore, when considering a CD for the first time or
transferring a CD under Section 30-20-104(1)(c), the Board must consider the ability of an
applicant to comply with health standards and operating procedures in the Solid Waste Disposal
Sites and Facilities Act and the State Department's rules and regulations. Yet this is a Show
Cause hearing as the result of a violation and numerous complaints, so she questioned why a CD
would be issued pursuant to 6CCR107. She asserted that the applicant must have an EDOP,
and when it is modified it needs to be consistent with the original CD. She agreed there is not
enough evidence concerning DS #16 regarding fugitive dust and particulate emissions, so that
could probably be deleted. However, she continued, DS #17 requires compliance with the
Colorado Air Quality Control standards, but the operator has entered into a Consent Agreement
with the State as a result of non-compliance. Commissioner Kirkmeyer agreed there is not
enough proof concerning DS #18, which was to exhaust the removal system, so that could be
removed. In regards to DS #21, it requires compliance yet the facility had a violation, and although
they are not as vital she agreed the site is not in compliance with DS #30, 34, 42 and 45. She
stated she understands the investment that has been made and the benefits to dairy operators
because she owned and operated a dairy, but it remains the job of the Weld County
Commissioners to protect the health, safety and welfare of the citizens and she feels the Board
would not be doing its job if they do not revoke the permit.
Commissioner Cozad agreed with the findings as cited by Commissioner Kirkmeyer, and
added concern regarding the modifications to the EDOP which are contrary to DS #10 and 42
and not in compliance with the approved Drainage Report. In regards to DS #17 and the APEN,
she stated the Consent Agreement with the State indicates they are not in compliance and the
status of the DPS compliance remains unclear until the State makes a determination. She
proposed a potential alternative for a continuance of the operations, subject to a similar type of
compliance agreement under which the operator would have to be willing to abide by a reduced
odor threshold, if that is possible.
CEJ Mr. Barker advised that the Board to make a Finding of Fact on each of the items and then
consider the remedy. He stated only two things are called for: Suspension or Revocation, but
within a suspension there can be an agreement to hold the enforcement in abeyance on certain
things. In response to Commissioner Cozad, he stated there is no provision for a fine in this
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PAGE 17
instance or process; however, the provisions of a CD do have the option of a Cease and Desist
and a fine may be set by District Court.
Commissioner Moreno stated if suspended it may take several months to shut down the
digestion process. Chair Freeman commented he would support a suspension and hold the
enforcement in abeyance while they continue to work toward compliance. Commissioner
Kirkmeyer stated she would support an agreement resulting in a reduced odor threshold, which
would still result in the need to amend the Development Standards at a separate time. However,
she reiterated the facility does not have a valid CD so there is no other choice but to revoke.
Mr. Barker reminded the Board that the State asked Heartland to apply for a transfer of the CD,
when statutorily they had the right to pursue a Cease and Desist Order and impose a penalty or
seek an Injunction.
Commissioner Kirkmeyer reiterated that DS #6 speaks to the Solid Waste Disposal Site and
Facilities Act as well as the State statutes which state the operations "shall" cease without a valid
CD. Mr. Barker noted the State had the remedies of issuing a Cease and Desist Order or pursuing
an Injunction to be enforced through the District Court and opted, rather, to direct Heartland to
apply for the CD. He stated, as the local Governing Board, the Board of Commissioners has the
same options. Commissioner Kirkmeyer asserted Sec. 30-20-112 and 113, C.R.S., says that if
there is no valid CD then the permit "shall" be revoked or suspended and they cannot operate.
Mr. Barker agreed, with the understanding that there are options for the method to accomplish
those actions as described previously.
Commissioner Conway agreed with the need to retain enforcement ability as described by
Mr. Kisker. He stated there has been a demonstrated effort by the respondent to try and remedy
the problems but there is no remaining trust. He acknowledged the County's part in furthering
the problem and recognized the issue is the odor. He referenced the Agreement between the
State and Heartland to perform certain measures over the next six months, including a new
enclosed facility which is now constructed since the last Show Cause hearing and hopefully will
have an added positive impact. He also recognized the waste stream will end in the landfills as
well as other problems which will be caused by a ripple effect if the facility is closed.
El Commissioner Moreno stated this decision is a lose/lose situation. He agreed Heartland is
working to make improvements to correct the situation; however, in the interim the residents
remain impacted. He stated there is no valid CD in place and they should not be operating;
however, he is not in support of a full revocation but would support a suspension until June, 2017,
but he questioned what happens in the meantime.
El Mr. Barker referenced Section 23-2-270 of the Weld County Code which does provide the
option of enforcing civil penalties in lieu of a suspension. Commissioner Kirkmeyer again cited
Section 30-20-112, C.R.S., which only allows for the revocation or suspension and noted there is
no provision for a consent agreement. Mr. Barker reiterated there are two possible actions and
then it is up to the Board as to how they go about accomplishing them. He further commented it
is likely that the applicant does not want to go through the CD process because one of the findings
requires demonstration of no impact on the area. Commissioners Cozad and Kirkmeyer agreed.
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PAGE 18
At the request of Commissioner Cozad, Mr. Barker read Section 23-2-270 of the Weld County
Code for the record. Commissioner Kirkmeyer said that speaks to the USR but she questioned
how they can continue to operate without a valid CD. She reviewed the various operations
pertaining to the CD and USR. Commissioner Cozad referenced the last sentence which allows
the other remedy option of a Letter of Compliance. She stated Exhibit 25 of the Brief is a letter
from Heartland, dated December 9, 2016, requesting to modify the CD, which implies there is no
valid CD and they need to get a new one as directed by the State Health Department and Attorney
General.
Commissioner Kirkmeyer reminded the Board that the applicant has stated they need to get
to full production to see if the mediation efforts work. Commissioner Cozad stated she is not
willing to do that because this is a Show Cause hearing with findings that the facility is not in
compliance. She stated she is willing to consider a suspension with an Agreement, or possibly a
continuance, but only with a specific reduction of the odor threshold and she is very well aware
that they may have to come right back in because it is unlikely they can comply with a higher
standard.
Commissioner Kirkmeyer stated there is enough evidence to show a nuisance condition.
She agreed they are trying to remedy the problem but they should have done many of the
mitigation measures before they began operations. Commissioner Cozad considered that if the
permit is revoked today it will take a minimum of 60 days to shut down, plus they could come back
and re -apply for an amended USR and a new CD. Alternately, the permit could be suspended
for a period of time while they try to come into compliance and apply for a CD and go through the
public process. Commissioner Kirkmeyer stated that either way they have to apply for a CD
(transfer or new) and the Board of Commissioners still has to make certain determinations on the
ability of the applicant to comply with Sec. 30-20-104.1(a), C.R.S. Any of the options still require
a hearing and if a permit/CD is not issued, they would have been operating the entire time without
a CD and potentially ongoing violations.
Commissioner Freeman expressed his struggle with revoking the permit, which would mean
the odor remaining for at least three to four months. However, for him it makes more sense to
continue working to get the mitigation measures in place and make this a successful outcome for
all. He said they may not ever get there but he wants to try and find a way so the necessary
requirements have a specific timeline to meet the agricultural needs in Weld County. He stated
this is an important renewable resource if they do it right in the long run.
Commissioner Moreno reviewed the proposed timeline for June to get everything corrected,
and Commissioner Freeman commented it will be a progression. Commissioner Cozad repeated
they do not have a valid CD, per the Attorney General, and the Board needs to at least suspend
the permit until that is in place. In response to Commissioner Conway, Mr. Barker stated the CD
application will allow a public hearing. Commissioner Cozad agreed it would be great to get the
facility up and operating as intended, but the fact remains there are violations, especially the lack
of a valid CD. Following further discussion, Commissioner Cozad commented the applicant has
also failed to operate in accordance with the EDOP or approved Drainage plan as identified in
DS #6.
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PAGE 19
Mr. Gathman stated there is no separate application for a CD, rather it is done in conjunction
with a USR, and they may need an amendment to the USR in this case because of the various
design elements.
ki In the matter of a Show Cause hearing, PCSC16-0004, Commissioner Kirkmeyer made a
motion to Suspend said Use by Special Review Permit for Minor Amendment, MUSR14-0030,
and Use by Special Review Permit, USR-1704, issued to Heartland Biogas, LLC, based on the
Findings of Fact and evidence listed above. She clarified the suspension would be immediate
and stay in effect until the facility gets a valid CD and comes into compliance with the
Development Standards of the USR. Additionally, she stated her motion includes the findings
presented in the draft Resolution prepared by staff, as well as all of her comments given during
the Board's deliberations which she summarized for the record. (Clerk's Note: The specific
findings are detailed in the Board's final Resolution #2016-3686.)
el Commissioner Cozad seconded the motion and asked that her previous comments and
findings also be included in the Resolution. In response to Commissioner Conway, Commissioner
Kirkmeyer clarified her motion is for an immediate suspension until the applicant gets a valid CD
and comes into compliance with the Development Standards of the USR, and also includes the
findings cited by Commissioner Cozad. She stated this certainly was not an easy decision, the
situation is very grave and everyone is disappointed with the outcome, but she feels this must be
done as a responsible Commissioner to ensure the health and welfare of the public.
In response to Mr. Barker, Commissioner Kirkmeyer reiterated her motion is based on the
lack of the CD and failure by the respondent to come into compliance with the Development
Standards of the USR, with the exception of DS #16 and #18, because there was not enough
evidence to show they were out of compliance with those noticed items.
Upon a request for a roll call vote, the motion to issue an immediate suspension with the
above cited findings, carried unanimously. There being no further discussion, the hearing was
adjourned at 6:13 p.m.
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PAGE 20
This Certification was approved on the 21st day of December, 2016.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST: daAiov p;l1
Weld County Clerk to the Board
BY:
uty Clerk to the Board
APPR9V D
ounty Attorney
Date of signature:
Mike Freeman, Chair
EXCUSED DATE OF APPROVAL
Sean P. Conway, Pro -Tern
EXCUSED DATE OF APPROVAL
Juli= A. Cozad
Steve Moreno
2016-3697
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Agren • Blando Court Reporting & Video, Inc.
•• 216 - 16th Street, Suite 600 • Denver, CO 80202
National & International Coverage
303-296-0017. 1-800-739-4846
Shar Dobson
CSR, RPR, CRR
D: 303-296-0017 E: sdobson@agren.com W: agrenblando.com
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