Historical Overview:
February 1, 1990: The Boulder County Board of County Commissioners approved a proposal by Southwestern Portland Cement Company to use tires as an alternative fuel source at its cement plant in Lyons.
1993: Southwestern ceased burning tires.
1996: Article 4-604, Subsection C is added to the Boulder County Land Use Code.
Any approved special use shall be deemed inactive under this subsection C if there has been no activity under any portion of the special use permit for a continuous period of five years or more as a result of causes within the control of the special use permitee.
February 8, 1999: The Northern Boulder County Environmental Health Community Task Force was established by the Boulder County Board of Health in Resolution 99-1. The mission of the Task Force was to convene a group of stakeholders to work toward improving the health and environment of northern Boulder County.
The Boulder County Health Department believed that an organized selected group of individuals which represented interests from the community (50%), special interest groups (10%), industry (35%) and government (5%) would be able to adequately address and develop non-regulatory strategies to improve both health and the environment.
The Task Force addressed issues at the cement plant from blowing fugitive dust, stack emissions, diesel emissions from increased truck traffic, facility expansion, concerns with disposal of cement kiln dust, deposition of particulate pollution on plants of economic value, to the deprivation of enjoyment of private property.
July 2001: Cemex USA acquires Southdown Inc. (formerly Southwestern Portland Cement)
August 13, 2001: Dr. Marine, President of the Boulder County Board of Health, and the members of the Task Force signed a Memorandum of Understanding with Cemex that would result in improvements in air quality and the environment.
September 9, 2001: The Task Force received a citation for achievement and excellence from the National Association of Counties (NACO) for cooperative community efforts to make the region around Lyons and the St.Vrain River cleaner and healthier. (update: September 25, 2002)
June 2, 2002: A news release in the Daily Times-Call informs the public that Cemex-Lyons is proposing to reintroduce the use of tire derived fuel.
June 6, 2002: Cemex plant manager, John Lohr, advised the members of the Northern Boulder Country Environmental Health Community Task Force* that Cemex was introducing tire derived fuel to Boulder County—a major shift from the no tire burning policy made known by Southdown Inc.
RECENT EVENTS:
August 2002: Cemex notified the Boulder County Board of County Commissioners that the cement plant intended to again burn tires for fuel at its cement plant in Lyons.
August 8, 2002: Mike Oatley, editor of The Old Lyons Recorder writes a Commentary and Opinion: “Cemex tire burning plan requires a leap of faith.” Mr. Oatley reports on (1) the community’s opposition to tire burning, (2) the community’s trust issues with Cemex-Lyons. Mr. Oatley concludes that the best guiding principle in the controversy with Cemex is for the regulatory agencies to err on the side of caution where human health is concerned
September 5, 2002: Graham Billingsley, Director, Boulder County Land Use Department notified the plant manager at Cemex-Lyons that Cemex may resume burning discarded tires under Boulder County’s 1990 permit. The Director stated that based on the information available to him, tires had not been burned at the Lyons cement plant since 1993, but concluded that it was not appropriate to apply the lapse provisions in BLUC Article 4 604 C (described above – 1996) which was added to the Code in 1996, retroactively to the 1990 tire burning approval. (update: October 1, 2002)
September 9, 2002: Members of the public meet with the Boulder County Board of Health and express concerns about (1) failure of sprinkler system in the
cement kiln dust * disposal site (2) lack of trust in Cemex-Lyons, (3) opposition to tire burning at this facility, (4) an alleged failure of Cemex to comply with the Memorandum of Understanding adopted by Boulder County Board of Health, Cemex-Lyons, the Watchdogs, and the North Boulder County Environmental Health Community Task Force, (4) reoccurring problems in housekeeping and operating procedures.
Boulder County Board of Health member, Jeannette Hillery, announces that it is time to put some “toes to the fire.”
· Cement kiln dust (CKD) The Lyons cement plant generates approximately 20,000-30,000 tons of CKD annually. The CKD is made up of fined grained particulates of crushed and calcined limestone, shale, gypsum and silica.
September 25, 2002:
The re-emergence of fugitive dust events and other housekeeping
problems at the Cemex-Lyons facility raises concerns among members of the Task
Force that Cemex is not adhering to the stipulations set forth in the Memorandum
of Understanding.
.
June 2002 to September 2002, the Task Force receives numerous inquiries from the public regarding concerns over the tire derived fuel project at Cemex.
September 25, 2002: The members of the Task Force vote to dissolve the organization as the members are unable to agree on how to address the tire burning issues and the re-emergence of housekeeping issues at Cemex-Lyons.
September 30, 2002: Gabi Hoefler, Environmental Protection Specialist, and Pamela Milmoe, Air and Waste Coordinator for Boulder County, conduct an unannounced complaint investigation at Cemex-Lyons. The inspectors note housekeeping problems and notify Steve Mossberg, facility compliance manager, that follow-up visits will be made to insure the items of concern are corrected.
October 1, 2002: Shannon McMillan, inspector for the State’s Air Pollution Control Division, conducts a complaint investigation at the plant. Cemex-Lyons is given 60 days to respond to concerns regarding the cement kiln dust pit, housekeeping practices, and the fugitive dust control plan for blasting in the Dow Flats quarry.
October 1, 2002: Sierra Club attorney, John Barth, files a law suit in Boulder County District Court claiming the special use permit issued by the county in 1990 is no longer valid. County zoning code states that special use permits lapse if not used for five continuous years. (The plant has not burned tires since 1993.) (update: March 4, 2003)
October 13, 2002: Pam Mellskog’s story appears in the Daily Times-Call “A Stone-Cold Controversy: Activists hot under the collar over tire test burn.” Story reports that county, state, and federal agencies have agreed that a fact-finding test burn is in order. Community members are opposed to tire burning at Cemex-Lyons and cite questionable process controls at the plant which are under scrutiny by the county and state.
November 8, 2002: Cemex runs full page advertisements in the local newspapers to address 10 frequently asked questions regarding tire derived fuel, and offer assurances to the public that any action the plant takes will be safe for peoples’ health.
November 14, 2002: Pamela White, editor of the Boulder Weekly, “Fuel Fracas” Story reports that Cemex-Lyons want to burn 1 million tires each year. The company will be paid $15 per ton for the tires, and the company could realize a savings of $500,000 in fuel costs, as well as about $225,000 in earnings from the tires. Residents complain that many people used to keep their windows closed year round because the fugitive dust from the plant would blow into their houses. Residents do not trust that process control for tire burning will be any better than other process controls at the plant.
November 19, 20, 21 2002: Inspectors from Boulder County, Gabi Hoefler, Pamela Milmoe, and Bonnie Greenwood visit the plant. On November 26, 2002, the inspectors notify Cemex-Lyons that if housekeeping practices continue to be a problem, it may be necessary to confer with the Colorado Department of Public Health and Environment (CDPHE) on the next appropriate action.
February 4, 2003: CDPHE issues a Compliance Advisory to Cemex-Lyons to resolve issues noted by inspectors from Boulder County Health Department.
February 5, 2003: The Bugle, Voice of the Sierra Club, Boulder County, notifies its members that the Sierra Club is building an account to fight the Cemex tire burning project via the Sierra Club Foundation.
March 4, 2003: District Court Judge, Roxanne Bailin, finds that (1) BLUC Article 4-604C (lapse provision) must be applied to the Permit. The Court also finds that there has not yet been an official determination by Defendant Billingsley or the Board of Adjustment (BOA) “that no tires have been burned under the Permit for a period of five years since the enactment of 4-604C.” Accordingly, Judge Bailin remands the matter to the Boulder County Board of Adjustment for a determination of whether there has been a five-year period of inactivity under the Permit since the enactment of BLUC 4-604(C). If the BOA determines that such a period of inactivity occurred, then the Permit shall have lapsed and shall be of no further force and effect. (Case No. 02 CV 1616 Division 5)
March 26, 2003: Paul Carr, Field Enforcement Officer for the Air Pollution Control Division, conduct an unannounced inspection to evaluate compliance with the terms of Cemex-Lyons Operating Permit: number 95OPBO082.
April 3, 2003: Reporter Trevor Hughes, Daily Times-Call, “Cemex Plan may go up in smoke. Court ruling could kill tire burning.” Mr. Hughes reports on (1) the community’s celebration of Judge Bailin’s ruling that the “lapse” provision applies to the Cemex tire burning permit, (2) Boulder County Land Use Department’s displeasure at the judge’s ruling. A county official complains that the country could be forced against its own interpretation of the regulation to infringe on Cemex property right to burn tires.
April 10, 2003: Paul Banks, Banks and Gesso, LLC, notifies Graham Billingsley, Director, Boulder County Land Use Department that Cemex reserves the right to pursue a claim against Boulder County. (update: September 3, 2003)
April 17, 2003: Jane Shellenberger, Anne George, and Richard Cargill offer comments to the Colorado Air Quality Control Commissioners on the following issues: (1) Cemex-Lyons repeatedly citing the 30mph exemption* as a release from responsibility for fugitive dust events. Citizens ask commissioners to revisit the regulation. (2) citizens complain that housekeeping practices may be contributing greatly to the volume of dust being transported off property into the community. (3) The need for assurances that tire burning will be better managed than other process controls at the plant. Citizens asked the commissioners for a review of permitting requirements, oversight, and enforcement measures. (update: June 4, 2003)
* The 30mph exemption is covered under Regulation 1, Appendix B which states that the “Method of Measurement of Off-Property Transport of Fugitive Particulate Emissions” should not be used when the wind velocities exceed 30mph.
Further, Regulation No 1, Section 3,D,1,e,ii of the Colorado Air Quality Control Commission stipulates that fugitive particulate emissions that are in excess of the 20% opacity standard, are transported off-property, or are considered a nuisance, depending upon which situation applies, are not enforceable standards and no person shall be cited for violation of this standard.
May 2 and May 13, 2003: Paul Carr, Field Enforcement Officer, from the Air Pollution Control Division (APCD) makes two unannounced visits to Cemex-Lyons to evaluate compliance with the terms of the facility’s Operating Permit. Number: 95OPBO082.
Spring 2003: Plant manager allegedly implements a phrase “donuts in the front office” to alert employees that an inspector is on the premises.
May 2003: Students at the University of Colorado, Environmental Design Department, under the supervision of Brian Muller, complete an Environmental Impact Statement (EIS): “Cemex Corporation EIS, Cement Kiln Tire Incineration.” EIS notes that Cemex has a poor environmental track record and that consistent management practices that are required of tire burning may not be present at Cemex-Lyons. EIS also notes that improper incineration could put a large population at risk.
June 4, 2003: Frank Johnson, Assistant Attorney General, Natural Resources and Environment Section, notifies Colorado Air Quality Control Commissioners that enforcement action is underway at Cemex-Lyons. Mr. Johnson recommends waiting until enforcement action has run its course before considering citizens’ request for a rulemaking hearing to amend Regulation No. 1. (30mph regulation)
June 4, 2003: Watchdogs write to Graham Billingsley, Director of Boulder County Land Use Department with request that (1) the director address grievances from residents in north Boulder County regarding Cemex-Lyons; (2) that Director Billingsley consider the welfare of the public in his consideration of whether the tire burning permit issued to the cement plant in 1990 has lapsed as defined in Article 4-604C of the Land Use Code, (3) that it would be in the public interest if the cement plant applied for a new permit and proceeded through a new special use review and public hearing.
June 30, 2003: Paul Carr, APCD, conducts an unannounced inspection at Cemex-Lyons.
July 2, 2003: Paul Carr, APCD, conducts another unannounced inspection at Cemex-Lyons. (The details of the June 30 and July 2 inspections are currently being reviewed within the Air Pollution Control Division.)
July 8, 2003:
Mr. Barry J. Lind, Mr. James G. Guercio, and the Caribou Springs Ranch
Homeowners Association file an appeal to the Boulder County Board of
Adjustment through attorney Judson
Hite. Appellants state that they are
aggrieved persons of the decision by Graham Billingsley to allow Cemex to burn
waste tires. Appellants state that this
activity will affect the value of their estates.
July 9, 2003: Test Burn Health Consultation: The Agency for Toxic Substances and Disease Registry (ATSDR) expressed concern (1) “why an entire run was thrown out because of high acetone values. (2) A detailed discussion should have been provided to justify why that data was not representative of Cemex emissions and it was appropriate to discard the data.”
ATSDR recommends that “agencies with regulatory authority over the Cemex plant regularly inspect the facility, enforce operating conditions that will assure the stack emissions remain within the ranges measured during the source test, and require periodic retesting of the stack emissions.”
July 11, 2003: Daily-Times Call. Trevor Hughes. “Tires: Neighbors fired up” Story reports that “residents living in the nearby Caribou Springs Ranch—one of the most exclusive neighborhoods in Boulder County—are trying to get the county to block Cemex on the grounds that tire burning would hurt their property value. Residents say that since the plant hasn’t burned tires for more than five years, its permit should be revoked.”
July 28, 2003: Residents, Judith Koslov and Don Lutter propose a community based health initiative to the Boulder County Health Department and the Air Pollution Control Division. The regulatory agencies offer to support the Koslov/Lutter proposal entitled: Cemex Public Disclosure and Accountability. The information requested from Cemex included continuous opacity monitor data, temperature data at inlet to the bag house, fuel mix data, detonation data, and dust control data. Boulder County Health Department offered its web site for the dissemination of this information to the public. (update: September 29, 2003)
July 30, 2003: The State of Colorado, Division of Minerals and Geology increases the land reclamation bond which includes the cost estimate for demolition of Cemex-Lyons, from $369,100 to $8,039.100.
July 30, 2003: Ken Dobbs, Environmental Justice Project, discovers documents in Boulder County Land Use Docket SU 88-21 (1990 tire burning permit). Documents are records from the CDPHE of events, inter-office memos, and letters attesting to discovery in December of 1990 of incineration of waste oil and other solvents in the cement kiln. The plant burned approximately 5,226,000 gallons of waste oil and other solvents per year or 88,842,000 million gallons of waste oil and other solvents from 1975 through 1990 without a permit modification and appropriate oversight from the regulatory agencies. The documents also indicate that the cement plant was experiencing problems with the 100,000 gallon storage tank that had been installed.
August 7, 2003: Watchdogs submit a letter to David Ouimette, Manager, Stationary Sources Program, Air Pollution Control Division, expressing views about the pending enforcement action against Cemex-Lyons, and requesting an end to the outrageous conditions at the plant.
August 15, 2003: Investigative news story. Steve Novak, Redstone Review: “Tire Burning is still a very hot issue for Cemex and its neighbors.” Mr. Novak reports on (1) hazards of potential mercury emissions and other contamination from tire burning, (2) the lack of adequate information provided to ATSDR to explain why a sample with high acetone values was thrown out during the test burn, (3) the on-going enforcement actions and non-compliance issues at the plant.
August 19, 2003: The Air Pollution Control Division sends Cemex a Compliance Order on Consent identifying alleged issues of non-compliance with the operating permit.
August 27, 2003: Mr Ouimette, Manager, Stationary Sources Program, Air Pollution Control Division, assures community that the state’s enforcement action is being carefully evaluated, and there will be solutions that will provide relief to the community from exposure to excessive fugitive dust emissions.
August 28, 2003: Investigative news story. Pamela White. Boulder Weekly. “Trust gone toxic – Tire-burning issue heats up as state investigates cement plant.” Story reports on (1) bio-accumulative hazards of toxins from burning tires; (2) approximately 47 land transactions between the cement company and the County, and (3) a legacy burden allegation that 88 million gallons of waste oil and other solvents were incinerated at the cement plant from 1975-1990 without the proper permit modification.
Undated letter: Undated letter from Graham Billingsley to the Board of Adjustment with instructions that BOA should consider the following questions as most pertinent in determining whether there has been a five year period of inactivity under the Permit (SU 88-21 – tire burning) since the enactment of BCLUC 4-604C – lapse provision.
“1. Is the facility still there?
2. Has it continued to be in use and able to burn tires?
3. Are all related permits up to date?”
September 3, 2003: Boulder County Board of Adjustment (BOA) votes 4 to 1 to uphold Land Use Department’s determination that the 1990 tire burning permit issued to Cemex-Lyons is still in force. (dissenting vote: James Ortega Mr. Ortega said he hadn’t been convinced that Cemex’s maintenance operations should be considered as a continued activity under the special-use permit.)
September 4, 2003: Daily Times-Call, Trevor Hughes, “Cemex burning permit ruled valid.” Mr. Hughes reports that an official from Cemex told the Board of Adjustment that the Board was not allowed to consider health risks as a condition, only whether the once-valid permit was still good. Story reports that Board of Adjustment members said they felt bound to follow a narrow path demanded by Cemex and established by a judge’s ruling.* Board of Adjustment apologized to residents that they were unable to consider air quality or other environmental factors in their decision.
* District Court Judge Roxanne Bailin, ruled on March 4, 2003 that BLUC
Article 4-604C must be applied to the Permit. The Court also found that there has not yet been a determination by Defendant Billingsley or the BOA that no tires have been burned under the Permit for a period of five years since the enactment of 4-604C. The matter was remanded to the BOA needs to determine whether there has been a five-year period of inactivity under the Permit since the enactment of BLUC 4-604 C. If the BOA determines that such a period of inactivity occurred, then the Permit shall have lapsed and shall be of no further force and effect.
September 4, 2003: Daily Camera, Amy Herbert. “Board Oks Cemex to tire burn: Sierra Club plans to take issue back to court.” Story reports that Boulder County Board of Adjustment voted 4-1 (dissenting vote: James Ortega) that a 1990 county special-use permit had not expired because of non-use. Residents testified citing health and environmental concerns. Graham Billingsley, Director of the Land Use Department, instructs the Board of Adjustment that “the question that’s in front of you is whether Cemex allowed the permit to lapse, not whether they’re a good neighbor.”
September 22, 2003: Michelle Wallar, journalism student at University of Colorado begins an investigation into the issues at Cemex-Lyons.
September 29, 2003: Koslov/Lutter’s community health promotion initiative, Cemex Public Disclosure and Accountability bogs down as Cemex-Lyons plant manager, John Lohr, refuses to cooperate and refuses to release data. (A complaint regarding this matter was sent to the Boulder County Health Department and the Air Pollution Control Division.)
October 2003: ( l ) Sierra Club attorney, John Barth, files an appeal in District Court regarding the Boulder County Board of Adjustment’s decision to uphold Graham Billingsley’s determination that the county’s 1989-90 tire burning permit issued to
Cemex-Lyons is still in force. (2) Barry J. Lind, James G. Guercio, the Caribou Spring Ranch Homeowners Association and agent Judson Hite file an appeal in District Court.
October 2003: Valerie Edmondson, investigative reporter for KGNU begins an inquiry into the issues at Cemex Lyons—non-compliance issues, tire burning, housekeeping practices, and other items of concern.
October 2003: Lance Hernandez, Channel 7 airs a community alert story on 6:00 news about the tire burning issue at Cemex-Lyons.
October 2003: Cemex-Lyons begins to advertise in local newspapers for volunteers from northern Boulder County to serve on a Cemex Community Advisory Panel with a faciliator.
October 23, 2003: News story appears in The Old Lyons Recorder by editor Mike Oatley “Cemex to be fined over air quality violations.” Mr. Oatley reports that a source familiar with the negotiations said that significant fines would be levied against Cemex-Lyons.
November 14, 2003: Watchdogs write to Richard Long, Director, Air and Radiation Program, United States Environmental Protection Agency, Region 8, with a request that the Watchdogs receive consideration as a party in any Supplemental Environmental Projects (SEP) that are available from any penalty to settle enforcement actions against Cemex-Lyons.
November 17, 2003: Watchdogs intended this chronology of Toes to the Fire to a joint meeting of the Air Quality Control Commission and the State Board of Health with a request that the members lend whatever support deemed appropriate to the community’s initiative for better air quality in this region of Boulder County.
Postponed.
Updates to this chronology may be accessed on the Watchdogs’ website: www.stvrainwatchdogs.org
Written by Pamela White, Editor of the Boulder Weekly, Boulder Colorado.
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