Happy New Year!
Looking back at 2023, and ahead to what 2024 has in store
2023 was a very busy year behind the scenes for the Good Neighbors of Lyons, as we diligently researched all of the regulatory agencies with oversight of CEMEX and began our work to get CEMEX compliant with each of them. We typically only share the noteworthy news and progress, so there is so much more happening than what you might see. What we’re recapping below is no different, but what we want to convey is that we know getting CEMEX compliant is incredibly multi-faceted and we are attempting to address it as comprehensively as possible.
2023 Recap
We kicked off what is arguably our most critical investigation with Boulder County Community Planning and Permitting (Land Use) in January 2023 - a move that was formally supported to our County Commissioners by the Mayors, and in some cases the entire Board of Trustees, of almost all the Boulder County municipalities and even a few extras like the City of Broomfield. This investigation is still on-going, but we regularly reach out to County staff for updates as to when they will be ready to make a determination - what we get back is pretty limited, but we expect a decision regarding termination of Cemex’s nonconforming imminently.
We also filed a myriad of complaints with the Division of Reclamation, Mining, and Safety (DRMS) in January, but the most meaningful is in regard to their sorely out of date reclamation bond. The future environmental cleanup at CEMEX will be significant not just because of the current use, but because of when the plant opened in 1969. This was an era when it was acceptable to bury industrial waste with little regard to environmental impact, the very toxic cement kiln dust (hundreds of thousands of tons of it) was not yet known to be toxic and its burial was totally unregulated until 1999, and asbestos was widely used in dozens of building applications and likely exists throughout the ~32 different structures at the plant. We don’t want taxpayers to be on the hook for this clean up, which is unfortunately something that happens often as these plants close shop. The current bond is set at $8.9M, but we think a very conservative estimate for reclamation would be $30-40M. This, too, is on-going but we are starting to make progress as the bond has been temporarily increased to $11M during the investigation. We will keep fighting until we think the bond is where it needs to be.
We also filed complaints with the Colorado Department of Public Health and Environment (CDPHE) early in the year to expedite the renewal of CEMEX’s Title V permit that expired in March 2022 (a permit intended to improve compliance with the Clean Air Act for top polluters), and also had been marked “Not in Compliance” for every one of its annual inspections over the past 25 years - for context, one of Denver’s worst polluters (Suncor) was operating on a Title V that had been expired for 13 years. In October, we received notice that the renewal was being processed and open for public comment; we petitioned for a hearing before the Air Quality Control Commission as an extra layer of visibility and accountability and that hearing took place on January 5, 2024. We are so happy with the community turnout, but even more so, the thoughtful, respectful, and actionable feedback our community provided. Bill Hayes from Boulder County Public Health, Mayor Hollie Rogin (Lyons), Mayor Aaron Brockett (Boulder), Senator Janice Marchman, Representative Junie Joseph, and Former Rep Tracey Barnett all spoke in support of our shared objectives. There were also representatives from several important environmental nonprofits including the Center for Biological Diversity, 350CO, and Clean Energy Action just to name a few. In addition to all the testimonies, there were hundreds of equally thoughtful written comments. This process will continue into the Spring, but we are confident that the AQCC will take into account the strong community sentiment and the compelling case presented for our requested permit modifications.
When we filed complaints regarding CEMEX’s increased trucking and were attempting for someone, literally anyone, to hand down an actionable consequence, we also reached out to the Colorado Department of Transportation (CDOT) (in December 2022). To say we were impressed by the professionalism, communication, and swift action of this department would be an understatement. While CDOT didn’t necessarily possess a lot of teeth, a permanent increase of traffic activity by 20% or more requires a new access permit, and CEMEX was required to hire a third party to conduct a traffic engineering survey to determine if that increase happened. Given that CEMEX had claimed, in writing, to both Boulder County and DRMS that their trucking had NOT increased over historical levels and even provided ‘data’ to corroborate their claim, we weren’t sure what to expect despite our confidence that trucking had nearly doubled (we estimated about 160 new 1-way trips per day). So when the traffic study came back and unequivocally confirmed that CEMEX’s trucking had more than doubled (~ 230 new 1-way trips per day) we felt validated, but also knew that this unbiased data was what Boulder County would need for its investigation.
Coming Full Circle
Going back to our top priority, termination of CEMEX’s nonconforming use, CDOT’s report confirming 230 new truck trips a day most certainly meets the County’s threshold of having “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.” Also in the theme of coming full circle, as we continually searched for data and proof of “enlargements and alterations to CEMEX’s nonconforming use”, something jumped out in the reclamation documents we were working on: many sizes and dimensions of the structures CEMEX listed for reclamation in their 2003 reclamation plan to DRMS had grown (significant amounts) when we saw them listed again in the reclamation plans they resubmitted in 2023. Interestingly, we could not locate any County permits for these enlarged and altered structures. While adding an un-permitted ~6000 sq ft shed might not be the most interesting thing to pin on CEMEX to terminate their nonconforming use, it is exactly the sort of thing that Boulder County tends to lean on when issuing such terminations. We sort of liken it to getting Al Capone on tax evasion - it’s not the worst of his offenses, but it got the job done. Then, of course, there is the $10.3M plant expansion that happened in 1997-1999 (all the facts of which have already played out in Federal court during the EPA’s lawsuit against CEMEX), of which there are also no known permits on file with Boulder County. If the previously mentioned alterations weren’t enough, this is surely the nail in the coffin.
What We Expect in 2024
We are expecting Boulder County’s decision regarding the plant’s nonconforming use any day - should the County decide to terminate, CEMEX could obviously appeal, but if the termination stands, CEMEX would need to apply for a Special Use Permit in order to continue operations at their Lyons plant. We would expect them to do both simultaneously, and also likely be allowed to operate during the appeal process. That said, the case we’ve presented to Boulder County in very strong. So if the County were to decide to NOT terminate, we are prepared to litigate.
As you might remember, the County announced a moratorium on new permits in early September 2023 as they consider rezoning some ‘higher intensity’ areas around Lyons, which would include CEMEX’s plant (zoned General Industrial). Re-evaluating the zoning map is long overdue; just one example is that the plant itself has been in a floodway since the 2013 floods, and the Land Use code strongly discourages General Industrial uses to take place near a floodway. Nothing has been announced yet, but the moratorium is set to expire in March 2024, so some activity would be expected soon. Should the County decide to recommend a down-zone for any of the properties they highlighted in their press release, the recommendation would go through a public process beginning with the Boulder County Planning Commission, and then to the Boulder County Commissioners for a vote. Depending on what the County ultimately recommends regarding zoning changes, we will likely be coming back to you, our neighbors, to participate in the public process with us. One interesting note is that this moratorium would also prevent CEMEX from applying for a Special Use permit while its in place.
The process to renew CEMEX’s Title V (Air Quality) permit will also continue into the Spring, so we will review any modifications to the permit made by CDPHE and the EPA in this next phase and file appeals (May 2023) if needed. We did learn recently that CEMEX intends to install at least one camera near a source of dust events for better monitoring of conditions, which was one of the requests made by Boulder County Public Health, so we at least know that they’re paying attention. Erik Estrada (Plant Manager), Greg Bridges (Environmental Manager), and Michael Clausen (Corporate Social Responsibility Specialist) all attended the recent AQCC hearing, but chose not to speak which we also found interesting. A few employees (line level) and a couple of nonprofits who have taken their money spoke in support of renewing CEMEX’s permit, but without an equal show of support from management, it sort of felt like sending lambs to the slaughter, in my personal opinion.
Last, we will continue to push DRMS to make CEME'X’s reclamation bond reflect the current cost to remediate their property, as required by law, so this significant burden does not fall on tax payers. Because after decades of air quality violations and other environmental abuse bestowed on this community, having to pay to clean it all up feels like adding insult to already significant injury.
How You Can Help
As far as we are concerned, your voice is what matters most. Our small, ~2000 person community is up against the financial interests of a ~$12B global materials company. Good Neighbors of Lyons will continue to identify areas of noncompliance for CEMEX, and begin whatever process is needed to get them compliant, but when there is a public process as part of that, we need your voices to show both force and mass. If you haven’t already, please sign up for our newsletter so we can keep you abreast of the critical moments to come.
While the vast majority of our work is done in house by our small team, we do require some legal counsel from time to time. Legal counsel that is not free, unfortunately. Our friends at Save Our St. Vrain Valley (SOSVV) have been extremely generous in letting us use their counsel, who has done extensive work in the area and understands our plight well, and has absorbed the cost. SOSVV is still fighting appeals from CEMEX’s neighbor at an estimated legal expense of $35,000-$50,000 - if you’re in a position to make a financial contribution, we would be grateful for your support of SOSVV.
Thank you again to all of you who have participated in the process, simply followed along, or have even just gotten up to speed. We are grateful for each and every one of you and looking forward to the progress that 2024 holds.
"It is the greatest of all mistakes to do nothing because you can only do little – do what you can." – Sydney Smith.
Sincerely,
Sarah Lorang, Good Neighbors of Lyons
