A hazy future

Was killing the permit for the Dowe Flats Quarry the end of operations at CEMEX Lyons Cement Plant, or an invitation to pollute for decades to come?

The CEMEX Lyons Cement Plant. Photo by Amanda Dumenigo.

For decades, residents in Lyons have raised concerns about the cement plant and its quarry located outside of town. 

“We’re the closest community to the plant and the mine, and I can tell you that the cement dust is everywhere,” says Hollie Rogin, mayor of Lyons. 

The CEMEX Lyons Cement Plant south of Highway 66, and its adjacent quarry at Dowe Flats north of the highway, has long been a focus of community concern around air quality, light and noise pollution, traffic impacts and negative effects on local property values.

In May, when CEMEX applied with Boulder County Parks and Open Space for a 12-year extension on the life of the Dowe Flats Quarry where the plant mined raw materials to make cement, some community members saw it as an avenue to end operations at both the mine and the plant.

“We’re just people who want the biggest polluter to go away,” says Kathleen Sands, who started the Lyons Climate Action Group and has focused on raising awareness around issues with the CEMEX plant. 

According to the Environmental Protection Agency (EPA), the plant is the top emitter of greenhouse gases in Boulder County, emitting 357,101 metric tons of CO2 equivalent a year (2020). The second highest pollution in the county is the CU Boulder Power Plant, with 55,263 metric tons of CO2 equivalent a year (2020). 

Sands and others hoped CEMEX couldn’t operate without the mine — at least not profitably. 

The mining permit application went through a public land use process with the Boulder County Board of County Commissioners over the summer, gathering testimonies from citizens and reviewing documents. Commissioner Claire Levy saw how important this decision was for the public. 

“We handled a lot of testimony,” Levy says. “This was something that was obviously of great public interest.”  

Thursday, Sept. 29, the County Commissioners voted 2-1 to deny CEMEX’s permit application to keep mining at Dowe Flats.

It looks like an environmental victory — one step closer to getting the biggest polluter in the county off Lyons’ doorstep. 

But some believe the decision could lock in the county’s largest CO2 polluter for decades to come. 

The deal

The Lyons Cement Plant — located 20 miles from Rocky Mountain National Park — was built in 1969 and acquired by Mexico-based CEMEX in 2000. The building materials company acquired a 25-year permit to mine at Dowe Flats, which expired on Sept. 30. 

The raw materials mined at Dowe Flats were sent south over Highway 66 to the plant, where they were heated in a kiln to produce portland cement. 

“CEMEX believes renewing the permit for Dowe Flats Quarry is the most efficient method to obtain materials to produce cement that is vital for the growth of Colorado,” the company states on its website. CEMEX did not respond to multiple interview requests.

CEMEX can no longer mine at Dowe Flats Quarry after County Commissioners voted 2-1 to let their 25-year mining permit expire on Sept. 30. Photo by Wylie Hobbs.

The original mining extension application submitted to the County, co-signed by Parks and Open Space, stipulated that Parks and Open Space would acquire about 1,800 additional acres of open space (the county has been paying for 700 of those acres since 1997). CEMEX also proposed an increased lease payment (400 times more than payments under the previous permit) to the County, and the closure of both the mine and the plant after 15 years. 

In the final hearing before the Commissioners voted, CEMEX sweetened the deal by lowering the proposal from 15 to 12 years and offsetting 5% of their annual greenhouse gas emissions through renewable energy credits. 

Commissioner Levy, who voted to deny the permit, simplified CEMEX’s proposal as an “attempt to simply throw some money at it.”

Now that the proposal is denied, the mine ceased operations on Sept. 30 and will undergo a three-year reclamation process. The County will get 774 acres of open space, and CEMEX will remain owner of the land. 

In a May 2 press release announcing CEMEX’s mining-extension proposal, Boulder County Parks and Open Space wrote that CEMEX could operate its plant “indefinitely even after the mine closes.”  

A difficult decision

Boulder County Commissioner Matt Jones says he wants the CEMEX plant gone as much as anyone else — but he voted to approve CEMEX’s mining proposal. He says it was a hard decision. 

“The guaranteed shutdown at 12 years. Over 1,000 acres of open space. That’s the nugget, really,” he says.

Jones also drew on County staff, who recommended approval of the permit. 

On the other hand, the County’s Planning Commission unanimously voted to recommend the commissioners deny. 

Commissioner Levy voted with Commissioner Marta Loachamin against the mining extension. Levy says she didn’t feel like the additional acres of open space in the proposal would do anything to offset the direct impacts of mining, like reported fugitive dust clouds. She also says she didn’t see enough data showing impacts from or comparisons between proposed scenarios.  

“There wasn’t any fresh analysis based on current circumstances as to whether [CEMEX is] still compatible [with its original permit],” Levy says.

“I don’t think [CEMEX] should have a high degree of confidence that they’ll be able to continue operating that plant as long as they want to.”

The uncertainty surrounding the plant’s lifespan revolves around CEMEX’s permitting and legal nonconforming use status. 

The plant became legally nonconforming in 1994, which means it was built before current zoning laws and is therefore not permitted by current zoning laws. 

Because the plant is legal noncomforming, CEMEX has a vested property right to continue operations as long as it doesn’t increase the size of the plant or the plant’s footprint — CEMEX doesn’t have to abide by current zoning and special-use permit requirements. But, if CEMEX doesn’t follow these rules, the plant could be shut down. 

CEMEX is forced to bring materials to its Lyons plant from somewhere else now that the Dowe Flats mining permit has expired. Proponents of shutting the quarry down think the increased cost of trucking in materials will shutter the plant sooner rather than later. 

If CEMEX needs to build infrastructure on site to support increased truck traffic, thereby changing the plant’s size and footprint, it could cause CEMEX to lose legal nonconforming status.

Attorney James R. Silvestro, representing local environmental group Save Our Saint Vrain Valley, wrote in a memo to the Boulder County Board of County Commissioners that, “Without a formal administrative review, [County] Staff has incorrectly assumed that the cement plant is a legal nonconforming use and that it will not lose that status if the Application is denied and CEMEX is forced to supply the cement plant with imported raw materials.”

Jones voted in favor because he wanted to take the sure thing. The closing of both the plant and the quarry after 12 years would add more guaranteed pollution, but he valued knowing when the plant would close. He thinks CEMEX really could run the Lyons plant for decades to come. 

“Nobody knows how long that plant will be there. My guess was long beyond 12 years,” he says. “And we will have a lot more air pollution from it. Both greenhouse gasses and more direct pollution.” 

Boulder County’s climate goals include reducing greenhouse gas emissions 45% below 2005 levels by 2030, and 90% below 2005 levels in 2050. Both sides of the CEMEX debate believe their stance supports these goals.

“I think [extending the permit is] more likely to meet the greenhouse goals eventually,” says Jones.

Dale Case, director of Boulder County Community Planning and Permitting, says the mining permit expiring does not change any permitting for CEMEX’s cement plant. 

According to Case, CEMEX can continue operating the plant under state law unless the company makes changes that could trigger a lose of legal nonconforming status — and there are currently no proposed changes.

If CEMEX takes steps that lead to the loss of its legal nonconforming status, it could apply for a special use permit to continue operating under the current land use code. Without seeing an application, Case couldn’t say how difficult that permit would be to acquire. 

Right now, Case says, “it’s all speculation as to what is going to happen with the plant site.”

CEMEX and the community

In reviewing CEMEX’s mining application, Boulder County sent notices to property owners within a 1-mile radius of the Dowe Flats Quarry.

Of those who responded to the notices, 238 were in opposition to the County renewing the mining permit, and 10 were in support. 

On its website, CEMEX writes, “The [Lyons Cement Plant] has been recognized repeatedly for its environmental performance and community outreach accomplishments by organizations including Wildlife Habitat Council, Portland Cement Association, The National Association of Environmental Professionals and the U.S. Environmental Protection Agency.”

The company sponsors community events and works with schools on environmental education. 

A fugitive dust event documented from Hygiene Road. Photo by Amanda Dumenigo, executive director of Save Our St. Vrain Valley.

While the community health impacts from the plant are unknown, the EPA finds cement plants as “significant” sources of sulfur dioxide, nitrogen oxide and carbon monoxide. Cement plants also produce particulate matter that is regulated by the state.

At the state level, the Colorado Air Pollution Control Division (APCD) provides compliance oversight of CEMEX Lyons. Since 2000, CEMEX has been the subject of 12 formal enforcement actions. 

Based on observations during inspections, APCD also found CEMEX Lyons “not in compliance” with 12 permit requirements in 2018, “out of compliance” due to two violations in 2019, and “not in compliance” with six requirements in 2020.

CEMEX has also reached settlements with the EPA four times due to violations. In 2013, CEMEX paid a $1 million civil penalty to resolve violations of the Clean Air Act at the plant in Lyons. The most recent settlement between CEMEX and the EPA was in 2016.

A hazy future

Therese Glowacki, director of Boulder County Parks & Open Space, supports the Commissioners’ decision, and says the Commissioners did what they thought best for the community.

“700 acres will be coming to open space in three years, so that’s a good thing,” Glowacki says.

Mayor Hollie Rogin is proud her community showed up and voiced their opinions.

“It was so much work from so many people,” Rogin says. “So many people in our community banded together and worked so hard. I am very grateful to the County Commissioners for being able to see all the nuances of an incredibly complex situation.”

For the time being, we wait to see how CEMEX will move forward.  

Email: letters@boulderweekly.com

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