Weld County officials to file injunction against Heartland Biogas, seeking a halt to company’s operations | MyWindsorNow.com

Weld County officials to file injunction against Heartland Biogas, seeking a halt to company’s operations

Tyler Silvy
tsilvy@greeleytribune.com

A federal judge denied a Heartland Biogas request for a temporary restraining order against Weld County, and county officials are still waiting for the company, whose operations they suspended in late December, to stop working.

The Board of Weld County Commissioners on Dec. 28 voted to suspend operations for Heartland Biogas, a renewable energy company southeast of Greeley near Weld County Road 49, citing the company's violation of 10 state and county rules.

In response, Heartland Biogas filed a lawsuit that is essentially an appeal of the board's decision. Heartland says the commissioners' decision was arbitrary and capricious, and the county did not give the company due process.

Along with the lawsuit, Heartland asked for a temporary restraining order that would allow it to operate until the rest of the case was settled. At $30 million, the cost of shutting down is steep, the company argued. Company officials say it will cost $3 million per day every day the company is shut down.

But a federal judge denied the temporary restraining order Jan. 9 and the company continues to operate.

Biogas Group Vice President Al Kurzenhauser said in a prepared statement the company knew it would be difficult to get a temporary restraining order.

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"We made the attempt because the stakes are so high," Kurzenhauser said.

Nearing a month of operations after commissioners voted to suspend it, Heartland Biogas may soon find itself facing further legal action.

"We will be filing an action in federal district court to go ahead and enforce against them," Weld County attorney Bruce Barker said. "The county will be asking for an injunction to stop them from operating."

Among the violations Heartland has racked up is a single documented odor violation — in April. Still, residents have called in more than 600 complaints about the company's smell, a result of the breakdown of cow manure and food waste that the company converts into natural gas.

Before the final decision, commissioners held a handful of hearings, starting in July, in which company officials, expert witnesses, county staffers and angry residents testified.

County officials have recently discovered another violation: the company's apparent lack of a certificate of designation.

A certificate of designation is required by the state for companies dealing with solid waste, and Heartland Biogas had apparently never gotten the certificate transferred or renewed after acquiring the operation from a similarly named company in 2013. The commissioners have the power to approve certificates of designations, and Barker on Wednesday said county officials didn't know Heartland Biogas didn't have one.

The county received a legal opinion letter Nov. 8 from the state attorney general saying the certificate doesn't automatically transfer when ownership transfers.

But the letter was one of the last things the county heard from the state regarding the certificate of designation, according to the letter itself on file with U.S. District Court.

County officials had numerous telephone conversations with state officials, and there was even an Oct. 20 conference call between county officials and state officials related to the certificate of designation.

Barker said the state contacted county officials first. In its letter, the state acknowledged it was made aware of the transfer of ownership and failed to notify Heartland Biogas of the need to apply for a new certificate of designation.

Just two days after the county received the state letter, Heartland Biogas signed an order of consent with the Air Pollution Control Division requiring Heartland to spend $3 million to complete a variety of odor mitigation efforts with a variety of deadlines, including a complete analysis of its odor capture and control systems. The order was based on April 27 odor readings done by a county employee, and the timeline for completion of Heartland's various required mitigation efforts stretched into the summer of 2017.

Heartland argued in the lawsuit it had done everything required of it when it comes to dealing the odor problem. It claims county commissioners already had their minds made up about the company and that the county went beyond typical protocol in sending people to check up on the facility seven times in a 36-day period.

"We believe that we have met all the standards required of us by the state and county and are highly confident that our legal position is sound," Kurzenhauser said in his Wednesday statement. "The Board of County Commissioners set a bad precedent by voting to shut down a business in good standing and without due process."

A judge will be the final arbiter of whether the county gave Heartland Biogras due process, and Kurzenhauser said he expects a long court battle.

Heartland is suing not only the Board of Weld County Commissioners, but also the five commissioners individually. Representatives want the court to allow the company to keep operating, revoke the suspension, have the county cover all attorney and court fees covered and pay as much compensation for Heartland's losses as the court will give them.

The company employs 36 people, and has argued shutting down would also negatively impact local farmers who use the facility to dispose of manure.

County officials say just a few farmers use the facility, compared to the more than 200 others in the county that dispose of manure in other ways.

Tyler Silvy covers city and county government for The Greeley Tribune. Reach him at tsilvy@greeleytribune.com. Connect with him at Facebook.com/TylerSilvy or @TylerSilvy on Twitter.

Up next

If Weld County goes forward with its promise to file an injunction against Heartland Biogas, a federal judge will have to rule on that. The injunction would essentially force the company to cease operations, per the Board of Weld County Commissioners’ Dec. 28 decision. However, the company’s lawsuit against the county is still active.

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