June 2009

Montezuma County says no to a proposed waste site

By Gail Binkly

The June 1 public hearing on a proposed solid-waste facility in Montezuma County featured threats to have people removed from the room, a threat to recall the county commissioners, demands for a planning commissioner to resign, and nearly seven hours of heated and sometimes bitter testimony.

Other E & P waste facilities have been proposed in area

Counties welcome the energy industry because of the tax revenues and overall economic boost it provides them, but local officials and residents alike are less eager to take in the wastes produced by oil- and gas-drilling.

Such wastes include the waters and chemicals that are used in drilling and “fracturing” of rock. These fluids typically contain salts, additives such as bentonite, baking soda, soap and cellulose, but they also contain small amounts of toxic chemicals used by the companies.

Other energy wastes include petroleum-contaminated soils that are generally spread out across acres of land and left to break down through the action of bacteria and the sun, a process called “land-farming.”

The Cajon Mesa Recycling Facility rejected by the Montezuma County commissioners on June 1 was not the first such facility along the Hovenweep road to be turned down.

In 2007, the state of Utah denied an application by Contract Environmental Services of New Mexico to construct a single lined evaporation pit for commercial disposal of oilfield brines at an existing land farm about a mile from the main entrance to Hovenweep National Monument.

“We got a lot of [negative] comments from Hovenweep and other folks,” said Gil Hunt, associate director for oil and gas with the Utah Division of Oil, Gas and Mining. “We basically decided what they were proposing and where it was located wasn’t in the public interest.”

Part of the problem was the proximity to the Hovenweep National Monument, he said, but there were also concerns about gruondwater contamination because of a nearby spring. “We looked at all of those things and decided it was not a good place,” Hunt said.

Among those objecting to the proposal were the San Juan County commissioners, according to Commissioner Lynn Stevens. Although San Juan County does not have its own permiting system for such facilities, it “strongly objected” to the state about the proposed expansion of the Contract Environmental Services facility.

The facility does have a permit from the state of Utah for a composting land farm to handle soils contaminated from oil spills, Hunt said.

It also has a permit from the Utah Division of Solid and Hazardous Waste to operate an asbestos landfill.

Hunt said Contract Environmental Services is under new ownership since the evaporation-pond proposal and the company has a good record at the site. “There have been no problems.”

A new facility for E & P (exploration and production) wastes from oil and gas has been proposed west of the Utah state line and about 15 1/2 miles southeast of Monticello near Eastland, Hunt said. The proposal by Coal Bed Creek Construction, owned by David Cressler of Dove Creek, Colo., is for a 10-acre facility with two 500,000-gallon evaporation ponds.

According to the San Juan Record, a county resident came to the commission meeeting in Monticello on May 11 to express concenrs about the proposed ponds. On June 2, an on-site visit with the applicant, the county commissioners and state officials was slated to make an evaluation of the proposed location, Hunt said. If the proposal moves forward, there will be a public hearing about it, probably in Monticello, according to Stevens.

But in the end, the decision came down to some lines in the county landuse code and a state statute.

“I have to respect the land-use code because that’s what I was elected to do,” said Commission Chair Larrie Rule shortly before the board voted 2-1 to deny an application for permits for the Cajon Mesa Recycling Facility. The decision stunned many of the two dozen or so people remaining in the audience, which had started out at over 100, after the all-day hearing. It also stunned the applicants, who had received recommended approval from the planning commission after a twopart public hearing lasting more than 10 hours.

“Yes, very much so,” Nathan Barton, engineer for the project, told the Free Press when asked if he had been taken by surprise.

Brothers Casey and Kelly McClellan had sought to build a facility to process, store, treat and recycle wastes from energy exploration and production, known as E & P wastes. The facility was proposed for 83 acres of a 473- acre tract lying between Hovenweep National Monument and the BLM’s Painted Hand Pueblo off the remote and narrow County Road 10.

There was some question about whether the applicants needed to seek industrial zoning for their property (it currently is zoned A-80, for large-scale agriculture) or could simply obtain a special-use permit and high-impact permit for a conditional use. In March, the planning commission unanimously recommended approval of the facility and said it did not believe the applicants needed new zoning but could just seek the permits.

The project would have included eight 4-acre evaporation ponds to treat the briny, chemical-containing liquids used in oil and gas drilling, plus a “land farm” to treat petroleum-contaminated soils.

The applicants said the facility would provide a much-needed service to support the area’s growing and lucrative energy industry.

Opponents, however, raised the specter of potential pollution of neighboring farms, ranches and BLM lands via airborne particulates from the evaporation ponds or groundwater contamination through breaches in the ponds’ liners or berms. They also said the site was inappropriately close (under a mile) to the signature ruin of the BLM Canyons of the Ancients National Monument, Painted Hand.

“The BLM is the source of most of the materials we expect to receive at this facility,” Barton countered. “If it is appropriate to have oil and gas development on the monument, then there should not be a problem with having a facility like this supporting that oil and gas production in a facility adjacent to the monument.

“It’s got to go someplace.”

‘Chicken Littles’

But others disagreed. Erin Johnson, an attorney hired by the Hovenweep Alliance, a grassroots group opposing the project, called the proposal “a classic example of incompatible land use” because it involved “a heavy industrial use located in a prime agricultural area and surrounded by important cultural resources.”

Bessie White, a long-term farmer in Pleasant View, concurred. “This is probably the best and most profitable [agricultural] area in the county,” she said. “This area is too good to be changed in any way.”

John Wolf of Pleasant View questioned the numbers given by the applicants that indicated the site would draw just 10 trucks a day. He said that would not be sufficient to keep the evaporation ponds at capacity and didn’t account for the trucks required to provide fresh water for revegetation and remove the recycled oils and salts.

“This is a major industry,” he said. “It’s the largest facility of its kind on the Western Slope.”

At times the testimony strayed into broad philosophical questions about what type of development would be best for Montezuma County.

Proponents often cited the fact that oil and gas production provides some 40 percent of the county’s tax revenues (the overwhelming majority of that is from carbon-dioxide production by Kinder Morgan).

“If this facility does not go through it will stop the drilling!” shouted Sam Bangs of Pleasant View, who said the energy money is badly needed.

Richard McClellan of Road H called opponents “the same group of Chicken Littles screaming no matter what it is” and said the project would boost the economy. “In the past we have let ridiculous opposition drive off things like a state prison,” he said. “What we’re looking at here is salt water.”

But Judy Schuenemeyer of Cortez said, “Jobs are always used as an excuse for doing things that cause problems later.”

BESSIE WHITEAnd county resident Deb Campbell said there are many things besides oil and gas that bring dollars into the area. “I’m one of them,” she said, recounting that she moved here six years ago, bringing all her assets and her own business, “because it was a beautiful place, a safe place and a healthy place to live.”

“Will the oil and gas industry walk away if this project is not approved? I doubt it,” Campbell said.

David Baker of Lewis said he had been disappointed in the commissioners’ decisions about energy and drilling proposals in the past. “It appears you have been making decisions totally in favor of the industry to the detriment of the landowners,” he said, and threatened to mount a recall effort if the board approved the Cajon Mesa Recycling Facility.

Deb Barton spoke passionately in support of her husband, Nathan. She is the county’s landfill manager but made it clear she was not on the clock while attending the hearing.

Citing her extensive background in solid-waste management, she said she was sure the E & P waste facility would be safe – safer, in fact, than a landfill, because, “I don’t know what comes into the landfill.”

“I would rather live next to an E & P waste facility than all the multiple housing developments we are breaking our land into,” she added.

Chuck McAfee of Lewis said he supports the energy industry and co-owns land with his brother that is leased for natural-gas production. However, he opposed the waste facility, saying, “I guess I’m a member of the Chicken Little crowd that was identified earlier.”

McAfee was one of several people questioning whether Casey McClellan had crossed ethical boundaries by serving on the planning commission while the proposal was being considered – although McClellan recused himself from all discussions and voting. McAfee said McClellan had talked the county planning director, Susan Carver, out of making the applicants seek industrial zoning instead of a special- use permit.

“What really matters is the appearance [of impropriety],” McAfee said, and called for McClellan to quit the planning group. Casey McClellan was not present at the public hearing.

McClellan later said he had skipped the hearing because of advice from Andy Hill at the Department of Local Affairs in Denver.

“A couple of months ago, the heat I was taking over being on the planning commission concerned me so much I called her,” he said. He told her he was considering resigning.

“She said, ‘It would be a shame for you to resign, because planning and zoning commissions need experienced people’,” McClellan said. Hill then advised him to have his agent handle the hearings and not even to be in the room.

David Heck of Gilbert, Ariz., a for mer Cortez resident, defended McClellan at the hearing. “He recused himself from this whole process,” he said. “I hate to see somebody lynched up here who is not even in the room.”

Heck said E & P wastes should be treated at a central facility such as the one proposed. “That water is out there in the pits, in hundreds of locations scattered all over this land,” Heck said. “What’s being proposed is to gather that up, take it to a safe location and process it.”

A number of people called for the facility to be sited “someplace else” in the county, ideally near a highway to handle the trucks but far from farms and homes.

However, Bob Clayton, operations superintendent for Kinder Morgan, commented, “I have really scratched my head. . . I’ve been unable to really think of a location in this county that would be more remote.”

‘Very significant’

When public comments ended initially, the commissioners gave Barton and Kelly McClellan a chance to respond. Several audience members objected, saying they had already had their chance to speak.

“I don’t care if it takes a week, we’re going to get every piece of information,” Commissioner Gerald Koppenhafer stated, adding that the public would also get another chance.

When a few people kept objecting and yelling sarcastic remarks, Rule told them he would have them removed if they did not stop, which they did. A sheriff’s deputy was present throughout the hearing, but there was no other trouble.

After comment finally ended, commission attorney Bob Slough noted that that, under the land-use code, conditional uses allowed on ag lands must satisfy certain conditions, including the statement that the proposed use “does not create any danger to safety in surrounding areas.” He then read from Colorado law stating that “disposal of wastes from oil and gas energy and production raises public health concerns. . .”

“That’s very significant,” Slough told the board. “These are the kinds of questions you have to deal with in deciding whether you can legally approve placing this kind of facility in an A-80 zone.”

Koppenhafer then said that, although he believed opponents’ concerns could be mitigated and the facility operated safely, he did not believe the proposal met the code requirements.

Rule agreed. Both made it clear, however, that they were extremely reluctant to deny the application.

Commissioner Steve Chappell said, “I think this whole industry needs to be addressed.” He said a central E & P waste facility is needed and added, “If you don’t think this is isolated enough, where are you going to put it?”

Chappell refused to second Rule’s motion to deny, and voted against that motion.

Considering options

Casey McClellan later told the Free Press that he was “disappointed” by the decision but happy that the commissioners apparently saw no flaws with the project's technical merits. “The impression I got was the commissioners felt like everything could be mitigated.”

He said the language about the danger to safety could be applied to almost any project. “There might be a danger in you walking down the steps in your office. There’s danger driving your car down Main Street. If that language is all it takes to stop this project, then that language could stop any project.”

He said the applicants are still “mulling things over and trying to digest it all” but that no option was off the table yet, including applying for industrial zoning or suing the county over the denial, although he was reluctant to do either. He said they definitely will try again to get the project approved in some form. “It will come up again, that’s for sure.”

McClellan said he still believes this is the best location for the facility in Montezuma County.

“We are in the middle of the highest concentration of federal minerals in Montezuma County.

“I would venture to guess that nobody came up with a better alternative” for the location at the hearing, he said.

Barton echoed that, saying, “I cannot find any place in the county north of the Ute Mountain Ute line that is not within a half-mile from a residence” where the facility could be placed. State law says such facilities must be at least a half-mile from homes.

McClellan said there aren’t many possibilities for use of that private tract, which formerly was a campground that never made much money. “People say we’re destroying prime agricultural land, but our land is far from being prime ag land. It’s sagebrush and pinons and junipers. We really looked at this as a way to keep this property intact. Let’s say we never build this facility here. What are we going to do with the land? Maybe this will be a 35- acre subdivision. Is that better?”

McClellan said he was disappointed that some people who had previously praised the planning commission now were attacking him and the group. “Some of the opponents previously said this is the best commission they’ve ever seen. But as soon as their thinking disagrees with yours, we’re a horrible group. It’s really disappointing.”