The “Indefinite Operation” Threat
Op-Ed by Alberta Shulman
False Dilemma Fallacy
If you’ve been following CEMEX's request for an additional 15 years of mining at Dowe Flats, near the Town of Lyons, you’ve probably heard CEMEX’s pitch: ‘Give us 15 years of additional mining, or we will operate the cement plant indefinitely.’ Well that obviously makes 15 years sound pretty great, but that’s also by design from highly skilled senior executives at a Global 2000 multi national corporation.
CEMEX’s positioning is a classic negotiation tactic: the False Dilemma Fallacy. ”A false dilemma presents a choice between two mutually exclusive options, implying that there are no other options. One option is clearly worse than the other, making the choice seem obvious.” (Source)
But more importantly, can CEMEX really operate forever? The simple answer is NO, but as with most things in this application, there is nuance and complexity to that answer that I would love to walk you through.
Permits Require Modification
First, the Lyons Quarry/Cement Plant can NOT simply continue to operate independently of the Dowe Flats quarry without modifications to their current state mining permit, M-1977-208. While these two sites (the mine north of Highway 66 and the Lyons Quarry/Plant south of Highway 66) have different permits, they are inextricably linked. In order to change the source location of the plant’s material (i.e. truck in material because it can no longer be brought over by conveyor from Dowe Flats), three state-level permits must be modified or amended:
The Colorado Division of Reclamation, Mining and Safety (DRMS) must provide an updated M1977208 permit to change the source location; this should be a amendment, that requires public input, but even in the event of a Technical Revision, the community will exercise its right to object and call for a hearing.
The Colorado Department of Transportation (CDOT) must provide the appropriate access permits for an increase of truck traffic.
The Colorado Department of Public Health and Environment (CDPHE) must ultimately process and approve the Title V operating permit renewal. CDPHE is very backed up in processing renewals, as the current permit expired March, 2022. However, the law allows for continued operation while the permit is in the renewal process.
Nonconforming Use
Second, for CEMEX to begin trucking in material, Boulder County would have to willfully ignore CEMEX’s violation of Land Use Article 4-1003.C.1.d, which provides for termination based on "Any other enlargement or alteration of the nonconforming use which has the effect or threatened effect of creation 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." CEMEX’s cement plant is presumed to be a legal, nonconforming use. That is Land Use code for a structure or land use that has been grandfathered in. While there are a number of policies in the Land Use Code to protect grandfathered, or nonconforming structures and uses, there are also several designed to trigger a review, giving Boulder County the power to remove the nonconforming structure or use. Changing the source of the plant’s material from a local to a remote location, and also the significant increase in truck traffic to bring in that material, should trigger a review of the plant’s nonconforming status.
Land Use Code Article 4-1001.A stipulates that the County has a duty to eliminate nonconformity “as speedily as justice will permit”, which is why we have policies to trigger a review. Why do we have these policies, if the County won’t enforce them?
The Numbers Don’t Make Sense
Third, and last, the financial profile of operating indefinitely must be superior to the financial profile of shutting everything down and selling assets for CEMEX. We (Good Neighbors of Lyons) have done extensive financial modeling on this point, and there is no scenario where trucking in material “from 90 miles away” is profitable. At best, CEMEX might break even. CEMEX USA doesn’t have a single plant more than 30 miles from the source quarry, and has publicly stated that they have not started the process of sourcing material or transportation, or applying for the necessary permits, should the Dowe Flats application for an additional 15 years of mining be rejected.
Let’s be frank: it’s a bluff!
Given all of the above, it is crystal clear that CEMEX’s threat to “operate indefinitely” is a bluff and negotiation tactic. Unfortunately, Boulder County staff did not seem to make an effort to corroborate CEMEX’s claim, and accepted it as fact in their negotiations.
CEMEX’s application should be rejected, and a NEW negotiation should take place with the Town of Lyons at the table. 15 years is too long. CEMEX has too much to lose to walk away, so they WILL come back to renegotiate. Residents of Boulder County deserve more than what is on the table today.
