When Boulder County told high-polluting Cemex it had to shut down a month ago for violating its land use permits, it cited a study by Cemex showing truck traffic more than doubled in the past year.
Cemex’s response at the 30-day deadline for appeal? Don’t use our study!
While CDOT engineers praised the Cemex study for its frankness in emails to Cemex and Boulder County, Cemex is now saying its study is misleading and shouldn’t be used against them because it only accounted for a few days of observation.
CDOT’s conclusion, relied upon by Boulder County land use regulators in canceling Cemex’s ability to operate, “did not take into account the historical trucking of material to and from the Lyons cement plant, relying instead on a study Cemex voluntarily undertook for the Colorado Department of Transportation for a different purpose and that considered only three days of traffic data in each of two consecutive years,” Cemex spokesperson Maryssa Silva said in an email late Thursday.
A month ago, Boulder County said increased truck traffic was a violation of Cemex’s nonconforming use permit to conduct industrial operations in an agricultural zone, and the company had 30 days to refute the contentions, shut down or formally appeal.
“The determination also failed to apply applicable precedent that a nonconforming use does not terminate when traffic occurring off-site changes,” Cemex said. The cement producer argues it was forced to truck in more materials from offsite after Boulder County in 2022 refused to renew a mining permit for materials at Cemex’s onsite Dowe Flats quarry.
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Neighborhood activists opposing Cemex point to the company’s own study as the best proof that truck traffic has increased to dangerous and detrimental levels, alongside continuing state-cited air pollution violations from the Cemex kiln and dust from operations.
The growth in traffic joins with the company’s periodic violations and fines with the state Air Pollution Control Division to show a “pattern of negligence,” plant opponent Sarah Lorang said. Cemex opinion pieces published in local media claiming a commitment to public safety “contrasts with Cemex’s inaction, such as failing to implement CDOT’s safety-enhancing traffic pattern changes, as well as the plant’s decades-long problems with highly toxic fugitive dust emissions that remain unresolvedtoday,” Lorang said.
“Cemex has consistently chosen to not implement measures to prevent regulatory violations,” Lorang said.
Cemex said it has filed the required response to Boulder County’s 30-day termination notice, but did not respond to a request to share it. Boulder County officials forwarded the Cemex response to some of the neighborhood opponents.
The Cemex-commissioned traffic study turned over to CDOT and county officials showed that daily truck trips attributed to the company on and near Highway 66 reached about 1,300 in 2023. Those levels were about 600 a day in 2022, when Cemex was still bringing in cement-making materials from just next door at the Dowe Flats mine.
In its Thursday response to the Boulder County termination notice, Cemex said records show truck traffic has fluctuated greatly for years while the Dowe Flats mine was still open, and that the county erred in citing a large increase for the termination.
“The volume of traffic following the closure of Dowe Flats is no different than the historical volume of traffic supplying materials to the operations on the property prior to and even during the use of Dowe Flats,” Cemex’s nine-page response said. “Thus, a fundamental premise of the determination — an increase in traffic — is incorrect.”
Even if Boulder County determines there has been an increase, though it shouldn’t, Cemex argues, county land use laws do not allow a change in traffic alone to be declared an “impermissible enlargement or alteration of use.”
“The determination sets forth no basis for the conclusion that increased offsite traffic ‘intensifies the use of the land,’ ” the Cemex response says.
A Boulder County spokesperson said, “Cemex is exercising its option of providing evidence to the director that the director’s determination was in error. The director will review that additional evidence and issue an additional determination. If that determination is adverse to Cemex, they will have the option of appealing it to the Board of County Commissioners. The board does not comment on quasi-judicial matters prior to a proceeding.”
To recap the last two years of events surrounding Cemex at Lyons:
Cemex has long operated one of only three cement kilns in Colorado at the location surrounded by Boulder County and Lyons open space. The plant is a big target of environmental groups for pumping out about 300,000 tons of greenhouse gases a year, one of the largest single sources in the state, and for repeatedly violating state rules on controlling dust and other local pollutants from the site.
Cemex offered Boulder County officials a deal in 2022: If the county approved an extension for the mine operating permit, the company would donate about 1,000 acres of open space for local parks and agree to close the mine and the kiln itself within 15 years. After months of public comment and deliberation, the county commissioners declined to renew the mining permit, and Dowe Flats shut down, while the kiln increased trucked materials from outside the area.
Since then, state air pollution officials have announced two consent agreements with Cemex to settle ongoing violations of its air pollution permits, with the latest fine hitting $1.3 million.
Neighborhood activists joined with some local officials in continuing to oppose the kiln’s operation and permit. Boulder County land use officials apparently agreed, announcing the termination notice April 10 and demanding a response from Cemex, or a shutdown.
The Cemex-commissioned report by Stantec traffic engineers that the county is relying on now, Cemex said, “is based on extremely limited and select data related to traffic not on the Cemex plant premises.”
Cemex noted its original deal on donating open space was negotiated with county open space officials and the county attorney. Terminating plant operations is both a violation of Cemex due process rights and an illegal taking of assets by the government, without compensation.