Heartland Biogas, Weld County file competing injunctions
February 3, 2017
A legal battle between Weld County, Colo., and a renewable energy company continues to work its way through U.S. District Court, with both sides asking the judge to use force in their favor.
Heartland Biogas, which breaks down various waste materials to create natural gas, has been under fire for more than a year, with dozens of neighbors filing about 400 odor-related complaints.
When the Board of Weld County Commissioners on Dec. 28 suspended Heartland's special use permit for a variety of alleged violations, including odor, the company sued. Heartland continued to operate on Weld County Road 49 near LaSalle in violation of the commissioners' order. On Feb. 2, company officials said in an email, they had stopped operating.
In Heartland's lawsuit, filed the same day as the resolution, the company's lawyers paint a dramatic picture of commissioners hostile to Heartland and its "constitutional rights," and irrationally bent on destroying the company.
A judge rejected the company's request for a temporary restraining order, and now the judge must decide on a preliminary injunction. In both cases, Heartland is asking the judge to allow the company to stay open until the case works its way through the legal system. It says shutting down will cost it millions of dollars and millions more each month it doesn't operate.
Weld County lawyers argue, simply, any negative consequences related to a shutdown are the company's own fault.
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Weld County on Feb. 1 filed an official answer to the lawsuit and included an injunction of its own. This one asks the judge to enforce what the county says is a legitimate county order to shut down the company.
"Enforcement of the compliance order is reasonable and necessary to protect the authority of a governmental body and to protect the interests of the citizens of Weld County served by the (Board of County Commissioners)," the county argued in court documents.
STAKES ARE HIGH
There's a lot at stake for the three-year-old company, which began operations in Weld to much fanfare, including warm optimism in public statements from county commissioners.
The company's goal: To create a renewable source of natural gas while helping farmers and others get rid of waste, including manure.
It has done both, but for homeowners surrounding the company and its six, large digester tanks, the cost of the foul smell has so far outweighed the benefits.
A Greeley Tribune open records request revealed more than 400 odor-related complaints from Nov. 10, 2015, to Oct. 5, 2016.
Many people called multiple times, but complaints came from more than two-dozen people, who described a stench ranging from "rotted food" to "wretched."
Despite the complaints, Weld officials were able to verify just one violation — a stench exceeding the 7:1 ratio — on April 27, 2016.
Heartland claims, among other things, it wasn't given due process.
The lack of verified odor violations, combined with a show-cause hearing featuring myriad new complaints from residents led to some of Heartland's lawyers' most colorful court passages in the lawsuit.
"The show cause hearing was a kangaroo court at which the commissioners entertained evidence from the public that Heartland had no time to review or rebut, failed to properly review Heartland's submissions, and prejudged all of the evidence that was submitted," according to court documents.
Weld County officials don't deny the dearth of provable odor violations, but commissioners went beyond odor in suspending Heartland's permit.
Commissioners cited 10 state and county violations, including the idea that the company is operating without a valid certificate of designation. Such a document is required by the state for companies dealing with solid waste, and Heartland had apparently never obtained the certificate transferred or renewed after acquiring the operation from a similarly named company in 2013.
In its lawsuit, Heartland argues it has a valid certificate. It's one of many disagreements in the case to date.
The two parties will continue to see each other in court.❖