LOWELL — The USA Metal Recycling site remains shut down as the company seeks to regain its conditional use permit.
With a 5-3 vote, the City Council on Tuesday affirmed the October revocation of the company’s conditional use permit by the city’s Planning Commission.
Steve Whitehead, Kendell Stucki, Eric Schein, Lisa DeGifford, and David Adams voted to affirm the revocation of the permit. Bill Adams, Bethany Rosenbaum, and Marin Miller voted against it.
Tom Smith with USA Metal Recycling said he would appeal the decision to Benton County Circuit Court.
The commission revoked the company’s permit on Oct. 3, ordering it to cease operations two months after a fire at its site.
Smith asked the council Tuesday to reinstate his permit and send the issue back to the commission for discussion.
He said “a barrage of misinformation” led to a rushed decision by the commission. He said he disagrees with the commission over what is required by his permit, arguing there were no conditions on the conditional use permit he received for the business in 2009.
According to Smith, the name of the business leads to the assumption that it only recycles metal – though its plan has been to also recycle byproducts like cardboard boxes and shrink wrap.
He also claimed deadlines given by the commission in September had been “virtually impossible” to meet, and city staff refused his attempts at communication.
Mayor Chris Moore said city staff has not been ignoring Smith and will respond promptly to emails when they are received.
David Adams said reinstating the permit did not seem tenable because the business had still not resolved all identified safety issues at its site.
The commission ordered USA Metal on Sept. 8 to clearly define fire lanes with permanent barriers. Fire Chief Pete Melnicki said he still had not seen fire lanes at the site that met legal standards. The fire lanes at the site had been correct when the permit was granted in 2009, according to Melnicki. Those original fire lanes need to be put back, he said.
Smith said the Fire Department has never told him what the fire lane requirements are.
Moore referred Smith to the International Fire Code, which he said Smith could read online.
Rosenbaum said she believed there were issues that needed to be addressed by the business, but the best course of action would be to reinstate the permit and send the matter back to the Planning Commission for cooperative discussion.
Schein proposed Smith apply for a new permit rather than appeal the revocation of his old permit, which he said will take more time. The process of applying for and receiving a conditional use permit takes less than a month, Community Development Director Karen Davis said.
Smith said he was open to making changes to his permit in cooperation with the Planning Commission but would not apply for a new one. He said his business should not have been shut down.
“At this point, I’ve got nothing to lose. I’m out of money and out of business. If you put someone in a corner like that, it’s a bad place to be,” he said.
PERMIT HISTORY
USA Metal has been under scrutiny by city officials and other agencies in the past following complaints of explosions, noise, and smells believed to be coming from the facility. Multiple fires have been reported at the facility over the years.
Smith said on Tuesday he has cooperated with the city when such issues have been brought up.
The Planning Commission granted USA Metal, formerly Lowell Iron & Metal, its conditional use permit at a meeting on July 20, 2009. The commission was told at the time that the business “will provide metal recycling services and sales for commercial industrial customers,” according to the meeting minutes. They also were told the hours of operation, that there would be no loud bangs or booms at the site, and other details about business operations.
On Nov. 1, 2011, the City Council met in a special session to consider complaints from residents ranging from hours of operation to odors, noise, and particulates in the air.
On Dec. 5, 2011, the Planning Commission determined the conditional use permit had placed limitations on USA Metal, including hours of operation from 8 a.m. to 5 p.m. Monday through Friday and 8 a.m. to noon Saturday, a three- to four-vehicle maximum height of stacked vehicles, noise within the bounds of the noise ordinance and no loud bangs or booms, Arkansas Division of Environmental Quality requirements for hazardous materials, no retail sales and minimal outside lighting.
In a February 2012 letter, the Planning Commission warned it would revoke USA Metal’s conditional use permit if it did not operate within the bounds of the permit and those specified limitations.
In a letter later that month, Smith replied that the business did not intend to violate those limitations, though he disagreed that the limitations had been placed on the conditional use permit when it was granted to the company.
AUGUST FIRE
According to Davis, the permit granted to the business at 721 S. Lincoln St. allowed the recycling of metal, but not other materials, which were documented at the scene of a fire earlier this year. The business presented itself as a metal recycling facility, according to an Aug. 5 cease and desist letter from Davis to Smith.
The Aug. 2 fire was located in material dumped on a lot just north of the 721 S. Lincoln St. address, according to Davis. That lot is a part of USA Metal’s permit, she said.
Materials that were intended to be recycled through USA Metal were also found on a third northernmost lot, which is not a part of the company’s permit or associated with any business license, she said. The site was being used to dump debris from Smith’s construction company, Redline Contractors, according to a Sept. 8 letter from Davis to the Planning Commission.
Fire crews were forced to access the fire through the north lot, because fire lanes were blocked in the south and middle lots, according to Davis.
Plastics, cardboard, rubber, batteries, trash, and construction debris were all documented at the site, according to a report by the Fire Department. Large piles of debris blocked fire crews’ access to the fire, the report states.
Lowell firefighters arrived at the site of the fire at 5:31 p.m. on Aug. 2 and left just after midnight, according to the report. During the event, runoff containing pollutants entered the city stormwater system and was eventually diverted to a city-owned detention pond.
The city ordered the business to halt operations on Aug. 5, stating records from the Arkansas Department of Energy and Environment showed USA Metal recorded construction materials at 721 S. Lincoln St. and reported a “change of business” to a construction demolition recycling facility in 2016.
The business’ conditional use permit never allowed materials like construction debris at the site, according to the cease and desist letter.
USA Metal continued operating even after the cease and desist, Davis said.
On the Planning Commission on Aug. 10 ordered the business to follow the conditional use permit, clean up construction and demolition debris at the site within a week and comply with state regulations to remediate the water in the pond.
The commission voted on Sept. 8 to recommend extending the conditional use permit with conditions through Oct. 3, giving the business a list of required actions. City staff at the time recommended revoking the permit if the business did not cooperate by the commission’s Oct. 3 meeting.
The list of actions ordered by the commission at the September meeting included moving all equipment and debris used for the business of USA Metal to the property of USA Metal, cooperating with the city’s stormwater management department to stabilize dirt mounds, cleaning up the site until it is in compliance with city code, cooperating with the Fire Department to clearly define fire lanes with permanent barriers, properly storing liquids in barrels and tires under a covered area and removing liquids from the property each month.
As of Oct. 3, USA Metal had moved all its equipment and debris onto its own property and communicated with the stormwater management department, but it did not show completion of any of the other tasks, city Special Services Director Richard Stone said at the time.
