Dear Editor,
Regarding the Mountain Mail’s editorial of 17 March, “Nestle must meet 1041 regulations,” it appears that MJB fails to understand what is required by those regulations and what it means to meet them.
The editorial dismisses opponents as “emotional,” but in fact, the 1041 regulations are indifferent to advocates’ emotions. The regulations do, however, contrary to the statement of the editorial, require the Board of County Commissioners to consider increased truck traffic on U. S. 285, insofar as such an increase in truck traffic might affect several indicia of the general welfare of Chaffee County.
For instance, paragraph 3-303(1)K(i) of the pertinent regulations requires that the project have no “significantly adverse net effect on any segment of the local economy” as measured by “changes to projected revenues generated from each economic sector (including recreation, tourism, agriculture, and mining).” I would be quite surprised if Front Range tourists don’t consider likely congestion and travel times to different recreation destinations when deciding which way to head out, and U. S. 285 could quickly get an unfavorable reputation with
Nestle’s projection of 25 tanker truck round trips per day.
And it’s not only the tourists’ time in long lines behind tanker trucks that the 1041 regulations regard as important. Paragraph 3-303(1)K(vi) of the regulations requires that “(t)he benefits accruing to the County and its citizens from the Project outweigh the losses …” This appears to call for a cost/benefit analysis. As an economist familiar with the practice of cost/benefit analysis, I suspect that Chaffee County citizens’ losses of time spent in lines of cars behind fully loaded tanker trucks struggling up Trout Creek Pass would weigh heavily on the cost side of such an analysis.
I haven’t conducted such a cost/benefit analysis, but the 1041 regulations are clear that neither I nor the County has to conduct such an analysis: Nestle does. The Mountain Mail’s editorial claims that under certain conditions the County Commissioners are “obligated” to permit Nestle’s project. I searched the regulations for this formulation, but found no such thing. Instead, I found that “the burden of proof shall be upon the applicant,” (2-303(3)) the requirement that an application “may not be approved unless the applicant satisfactorily demonstrates” compliance, (2-303(1)) and, in fact, if “there is not sufficient information,” the Board of County Commissioners may simply deny the application, or it may continue the hearing, waiting for the applicant to carry its burden of proof (2-303(2)). In any case, the review standards of the 1041 regulations are broad criteria involving the County Commissioners’ judgment, and while the regulations provide for denying an application when doubt exists, the County Commissioners are never “obligated” to approve an application when some list of requirements has been met.
Sincerely yours,
Richard Cabe, Ph.D.
Salida, Colorado
I would like to quote 3 paragraphs from the County’s consultant Felt, Monson & Culichia
1. “A permit application for a proposed project may not be approved unless the applicant satisfactorily demonstrates that the proposal, including all mitigation measures proposed by the applicant, complies with the applicable criteria set forth in these Regulations. If the Application does not comply with all of the applicable criteria, the permit shall be denied, unless the Permit Authority determines, in its discretion, that reasonable conditions can be imposed on the permit which will enable the applicant to comply with the criteria.”
2. “If the Permit Authority finds that there is not sufficient information concerning any material feature of a proposed project, the Permit Authority may deny the application or it may continue the hearing until the additional information has been received. However, no such continuance may exceed sixty (60) days unless agreed to by the applicant.”
3. “The burden of proof shall be on the applicant to show compliance with the provisions of the Guidelines and Regulations governing the area or activity of state interest involved.”
Excellent facts and logic supporting the conclusion that the burden of proof is on Nestle Waters and not on Chaffee County Commissioners.
The sheer lack of facts and evidence on the part of Nestle Waters should cause the Commissioners to deny this application outright. If this were a court matter, a judge would toss out the case and chastise Nestle Waters counsel for lack of preparation.
Nestle is wasting our time and County funds and just hoping to sneak one by. We read the papers and see what Nestle has done across the country. Do they think we are ignorant or just don’t care?