Bio­gas firm sues Weld County

Com­pany claims com­mis­sion­ers’ de­ci­sion to shut down plant was “ir­ra­tional”

The Denver Post - - NEWS - By Kirk Mitchell Kirk Mitchell: 303-954-1206, kmitchell@den­ver­ or @kirk­mitchell or den­ver­­cases

A com­pany that con­verts cow ma­nure into gas en­ergy has sued Weld County com­mis­sion­ers in fed­eral court claim­ing their “ir­ra­tional” de­ci­sion to shut down the re­new­able en­ergy com­pany’s $115 mil­lion plant was based on a rel­a­tively small num­ber of com­plaints even though it is in com­pli­ance with county odor lev­els.

The law­suit was filed Tues­day in Den­ver U.S. Dis­trict Court on be­half of Heart­land Bio­gas of San Diego against five Weld County com­mis­sion­ers. It claims the of­fi­cials abused the com­pany’s con­sti­tu­tional due process rights when they sus­pended its spe­cial re­view per­mit on Dec. 19.

Heart­land is seek­ing mone­tary dam­ages against the county and re­in­state­ment of its spe­cial re­view per­mit. The law­suit claims the govern­ment de­ci­sion could cost the com­pany $29.4 mil­lion in shut­down costs, $3.2 mil­lion a month in prof­its, and per­ma­nently dam­age its con­tracts with lo­cal ranch­ers and gas com­pa­nies.

Mes­sages left with county of­fi­cials on Wed­nes­day were not im­me­di­ately re­turned.

On its web­site, of­fi­cials tout Weld County as the third-largest county in Colorado with thou­sands of acres of prime agri­cul­tural land. Heart­land uses an anaer­o­bic di­gester sys­tem to con­vert cow ma­nure and food waste from lo­cal ranches into nat­u­ral gas. Af­ter the gas is cleaned and com­pressed, it is in­jected into the Colorado In­ter­state Gas Com­pany pipe­line.

The fa­cil­ity, which em­ploys 39 full-time-equiv­a­lent em­ploy­ees, is one of the largest anaer­o­bic fa­cil­i­ties in the United States. Its out­put is com­pa­ra­ble to a 20-megawatt elec­tri­cal plant and also gen­er­ates com­post for lo­cal farms, the law­suit says.

Heart­land’s plant, which be­came fully op­er­a­tional in Novem­ber of 2015, emits a bad smell.

But the com­pany has only ex­ceeded odor lim­its es­tab­lished by its Weld County per­mit once, on April 27, it claims. Sub­se­quently, Heart­land spent mil­lions of dol­lars on stud­ies and new ap­pa­ra­tus to re­duce odors, ac­cord­ing to the law­suit. Although 800 tests have been per­formed by county and state of­fi­cials since April, the plant never has ex­ceeded lim­its set by the county’s op­er­a­tional per­mit, the law­suit says.

De­spite the com­pany’s mit­i­ga­tion ef­forts, Weld County com­mis­sion­ers lim­ited the fa­cil­ity’s gas pro­duc­tion by 60 per­cent af­ter a Sept. 19 hear­ing. On Nov. 10, Heart­land en­tered a “com­pli­ance or­der and con­sent” deal, agree­ing to abate “al­leged odor con­cerns” by in­vest­ing $3 mil­lion in smell mit­i­ga­tion equip­ment. The com­pany has com­mit­ted to go even fur­ther by spend­ing $4.2 mil­lion, the law­suit says.

The law­suit filed by at­tor­neys from the Den­ver law firm of Hol­land & Hart claims Weld County com­mis­sion­ers were just go­ing through the mo­tions when they con­vened the lat­est of a se­ries of pub­lic hear­ings on the mat­ter on Dec. 19.

That was ob­vi­ous, the law­suit says, when Com­mis­sioner Bar­bara Kirk­meyer opened the meet­ing by say­ing: “So, I’m cu­ri­ous as to why do I need to have any fur­ther pub­lic hear­ing or pub­lic tes­ti­mony, or even any tes­ti­mony what­so­ever … I was won­der­ing why I can’t make a mo­tion right now to sus­pend.”

Kirk­meyer is on va­ca­tion and could not be reached for com­ment Wed­nes­day.

The law­suit says the out­come of the Dec. 19 hear­ing was pre­de­ter­mined.

Board mem­bers made an “ar­bi­trary, ir­ra­tional and hos­tile de­ci­sion to sus­pend Heart­land’s re­new­able en­ergy op­er­a­tion,” the law­suit says. Their de­ci­sion was based on per­sis­tent com­plaints largely by 10 peo­ple who made 80 per­cent of all the com­plaints against the plant, the law­suit says.

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