Explaining Why and How Boulder County Can Decommission CEMEX
There is a narrative floating around that even without their adjacent Dowe Flats mine, that CEMEX Lyons can operate their plant “indefinitely”. We are here to tell you that is NOT true, and would love the opportunity to explain both why that is, and what we can do to stop it.
First, a little background on CEMEX Lyons:
CEMEX is a Mexican multinational materials company who manufactures and distributes cement, ready-mix concrete, and aggregate in 50 countries. CEMEX is a Global 2000 (#1178) company with $13 billion in annual revenues, and $27 billion in assets.
The CEMEX Lyons plant produces cement, which is the main basic ingredient of ready-mix concrete. Cement is produced largely from combining limestone, shale, and silica from mines and quarries. To combine these ingredients, CEMEX Lyons burns coal (approximately 7 tons per day) to heat their kiln to >2300 degrees Fahrenheit.
The CEMEX Lyons plant was constructed in 1969 by Martin Marietta, and adjacent quarries were mined for decades until they were exhausted. The adjacent Dowe Flats Mine began their mining operation on September 30, 1997 with a 25-year Special Use Permit granted by Boulder County that expired on September 30, 2022.
Now, let’s dive into the Boulder County Land Use Code!
The Boulder County Land Use Code was adopted in 1994. All property structures and uses in Boulder County need to fit in one of two buckets:
Conforming. This just means that the property meets all current Land Use Requirements, OR
Has a Special Use Permit. This permit allows a property to be used in a manner that deviates from the Land Use Code. There is a public process for Special Use permits (we experienced this with the attempted Dowe Flats mine extension), and specific criteria must still be met for approval. You can read that criteria here on page 162.
But wait, CEMEX Lyons is neither of those. Since CEMEX was built in 1969 before the Land Use Code was adopted in 1994 and does not meet the Code’s requirements, it was given a “non-conforming” status. Non-conforming is essentially the same thing as being grandfathered in. Per Land Use Article 4-1001.A, the County has a duty to eliminate nonconformity “as speedily as justice will permit”.
How can Boulder County “eliminate nonconformity”?
Similar to owning an old home, you’re okay (in the eyes of the County) with things being out of code so long as you don’t make any changes. CEMEX’s non-conforming status is really similar. Because the County has a duty to eliminate non-conformity “as swiftly as justice will permit”, there are triggers written into the Land Use Code that terminate a property’s non-conforming status:
Land Use Code, Section 4-1003.C.1.d:
“The right to continue a nonconforming use terminates immediately when [there] is any other enlargement or alteration of the nonconforming use which has the effect or threatened effect of creating a hazard or nuisance on or off the property, of adversely affecting the character of the neighborhood, or of intensifying the use of the land or its need for services.”
Note: This is a very broad clause that can be triggered by any changes to the nonconforming use that threaten public health and safety, create a nuisance, or intensify use of the land or services.
Going back to the old house example, if you decide to rip out your bathroom, then the entire room needs to be brought up to code. If CEMEX makes any changes that threaten public health and safety, create a nuisance, or intensify use of the land or services, then THEY need to fit nicely into one of those two Land Use buckets (conforming or obtaining a special use permit).
So, what changes has CEMEX made?
1) Trucking in Materials
In October 2022, CEMEX began trucking in 100% of their raw materials from multiple, distant locations. A great deal of their shale is being brought in from the Arcosa Lightweight mine on Highway 93 near Rocky Flats and Golden. Every HOUR, 10+ 35-ton trucks are bringing in materials by driving right through the City of Boulder on 28th Street/Highway 36. When thinking about the impact of this new trucking, it’s important to not forget the impact on the roads themselves. Each 35-ton truck does the damage to roads of 160,000 1.5 ton passenger vehicles (Refer to the 4th power rule.), which means that CEMEX is adding the impact of 12.8 million passenger vehicles to our roads every day.
But it’s also important to note that many local residents feel that the increased trucking makes the roads unsafe, creates a concerning amount of dust/debris, and dramatically increases road noise.
2) Stockpiles
In September 2022 CEMEX began increasing the size of its raw materials stockpiles, and in October 2022, they started creating many new shale stockpiles as they began trucking that material in from distant locations (it was previously being brought over Highway 66 via a conveyor).
The size of these stockpiles are significant, because they are typically several stories tall. For context, the height of the haul trucks you see in the photos is about 30 feet. I’m pretty sure Boulder County would have a problem if I added a 30-50 foot tall mountain in my yard.
3) Change of Source Materials / Cement Kiln Dust Exposure Threat
Cement Kiln Dust (CKD) is a toxic, fine and powdery material that is disposed of onsite at CEMEX Lyons and often is released into the community via frequent fugitive dust events. These dust events are a result of poor operating practices. The chemical composition of CKD is highly variable dependent on the source of materials. So when CEMEX changed the input materials after the closure of Dowe Flats, the composition of the CKD changed. This change and the unknown impacts on the toxicity of CEMEX’s CKD creates a potential threat to public health and safety. It is also worth noting that the ‘new’ materials are largely being mined within about one mile of Rocky Flats. We’ve been unable to confirm if the shale from that mine is being tested for elevated levels of plutonium, but it’s certainly a concern as there have been more recent reports of elevated levels of plutonium still existing near the site (reference article).
But are these changes significant enough to terminate the CEMEX’s non-conforming status?
Land Use Section 4-1003.C.1.d is very broad and can be triggered by any changes to the nonconforming use that threaten public health and safety, create a nuisance, or intensify use of the land or services. And just for reference, this is how the Boulder County Land Use Code defines a ‘nuisance’:
Excessive noise: A use that generates excessive noise, such as a loud construction site, can be considered a nuisance if it disrupts the peaceful enjoyment of nearby properties.
Odors: A use that generates offensive odors, such as a livestock operation or a waste treatment facility, can be considered a nuisance if it causes discomfort or inconvenience to nearby residents.
Visual impacts: A use that has a negative visual impact on the surrounding area, such as a billboard or a poorly maintained property, can be considered a nuisance if it affects the aesthetics of the community.
Health hazards: A use that poses a health hazard, such as an abandoned building with lead paint or a hazardous waste storage facility, can be considered a nuisance if it poses a risk to the health and safety of the community.
Traffic congestion: A use that generates excessive traffic can be considered a nuisance if it causes congestion and delays on the roads.
So, YES, we think the changes CEMEX has made to their operation very safely meet the criteria in our Land Use Code to terminate their non-conforming status.
How do we get these rules enforced?
Good Neighbors of Lyons filed a formal complaint on January 20, 2023 to Boulder County Land Use requesting that a notice of termination be issued. As the County has not yet acted on this, we are also circulating a petition to the Boulder County Commissioners to ensure that the Director of Land Use enforces the Land Use Code.
When the Boulder County Director of Land Use sends a notice that non-conforming use “has or may have” terminated, the Property Owner (CEMEX) has 30 days to do one of three things:
Provide Evidence to Contrary
Appeal to Boulder County Commissioners
Apply for a Special Use Permit
Denial of an appeal and/or a Special Use Permit would result in cessation of CEMEX Lyons operations. Cessation of operations triggers the Colorado Department of Reclamation, Mining, and Safety (DRMS) Reclamation Plan, which includes demolition of the plant and clean up 3) of the land.
How can you help?
Sign our petition to the Boulder County Commissioners here, and also sign up to receive updates as this all unfolds - we will definitely need your help again!
