HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 08/21/2018 - FIRST READING OF ORDINANCE NO. 108, 2018, AMENDINGAgenda Item 13
Item # 13 Page 1
AGENDA ITEM SUMMARY August 21, 2018
City Council
STAFF
Cassie Archuleta, Senior Environmental Planner
Jody Hurst, Legal
SUBJECT
First Reading of Ordinance No. 108, 2018, Amending Chapter 12, Article X, of the Code of the City of Fort
Collins to Remove the Small Scale Source Definition and Warning Requirements for Fugitive Dust.
EXECUTIVE SUMMARY
The purpose of this item is to amend the City Code, Chapter 12, Article X, Particulate Matter Emissions, to
remove small source written warning requirements for violations, and instead apply the City’s standard citation
procedure for civil infractions, which allows the option for written warnings (Sec 19-65. - Commencement of
action; citation procedure). This would simplify education, outreach and enforcement related to the Ordinance.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on First Reading.
BACKGROUND / DISCUSSION
Fugitive dust is defined as solid particulate matter emitted into the air by mechanical process or natural forces.
Examples of dust-generating sources include saw cutting, construction activities, unpaved roads and
mechanical blowing. Dust emissions are a concern because inhaling fine dust particles can be a health hazard,
and visible dust can also be considered a safety hazard and a nuisance.
The fugitive dust ordinance was adopted unanimously by City Council on May 3, 2016, with enforcement
beginning on November 1, 2016. The ordinance requires the use of reasonable control measures if off-
property transport of visible dust is observed. A provision of the ordinance (Section 12-160) states that small
sources, defined as sources less than 5 acres in size, be provided two written warnings prior to being issued a
citation for a violation.
Following the first year of implementation, which concluded on November 1, 2017, staff reviewed the
effectiveness of the fugitive dust requirements including the small source size threshold. Attached is the 1-Year
Impacts Report, provided to Council on March 28, 2018. A key recommendation in the report was the removal
of the small source distinction and associated warning requirements from the ordinance language, and instead
using the City’s standard citation procedures. Per justification:
• This would simplify understanding of the ordinance and implementation, as staff often encountered
confusion regarding whether the ordinance applies to small sources. The only distinction related to
small sources is the requirement that two written warnings be issued prior to being issued a citation.
• In practice, all complaints received since Ordinance adoption (55 as of July 2018) have been provided
with initial education and outreach (regardless of size), and resolved with voluntary compliance (i.e.,
no written warnings or citations have been issued). Given the voluntary compliance success rate, it
seems that continuing the small source distinction is not necessary.
• Removal of the warning requirements from this ordinance would not remove the standard practice of
Agenda Item 13
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outreach and written warnings, but it would provide more consistent requirements for all sources.
• Please note that the proposed amendments would also remove Section 12-153(a) and (b) because
those sections were initially added to ensure off-vehicle transport and saw cutting activities for small
scale sources would be treated the same as large scale sources (no additional warnings were given
for those two activities). Because the small scale source distinction is being removed, those two
subsections are now unnecessary.
Next steps if adopted:
The Fugitive Dust Implementation and Enforcement Plan, which was developed as guidance to assist with
implementation, will be updated to remove the small source distinction, and instead provide guidance for levels
of complaint response for all sources to include, at minimum:
• Initial education and outreach, notifying the sources of the requirements and resources available
(warning #1)
• Notice of Violation (NOV) with an opportunity to correct (warning #2)
• Issuance of a citation for a violation
Additionally, the Dust Prevention and Control Manual, which outlines standards for control measures, will be
updated administratively to remove references to small source distinctions.
BOARD / COMMISSION RECOMMENDATION
The Air Quality Advisory Board heard a staff update on September 18, 2017. While no formal action was taken
by the AQAB, Board members supported removing the 5-acre threshold (September 18, 2017 minutes
attached), and noted that the Board did not support inclusion of the threshold distinction when the Ordinance
was initially adopted in 2016.
PUBLIC OUTREACH
No public outreach was conducted beyond the AQAB meeting, as no changes are planned in implementation
practices. All sources will continue to be provided with initial outreach and education, with a focus on voluntary
compliance.
ATTACHMENTS
1. Air Quality Advisory Board Meeting Minutes - September 18, 2017 (PDF)
2. Fugitive Dust Impacts Report (PDF)
WĂŐĞϯ
banker can be a C-PACE lender.
i CSU Green Revolving Fund (GRF) - CSU will use a portion of its endowment to create a self-funded
revolving fund to pay for upgrades on campus buildings using their own capital and repaying
themselves from savings. Calculations suggest that they should be able to outperform their current
endowment and pay interest to themselves.
i Efficiency Loan Programs - The Clean Energy Credit Union (CECU) is the first of its kind to provide
loans solely for energy efficiency upgrades.
i Crowd Funding - It is hoped that this will be more of a way to get people personally involved, rather
than a significant source of income.
i Environmental Impact Bonds - major financiers that are interested in certain performance outcomes
will reduce the interest on bonds in exchange for meeting certain environmental metrics.
Discussion
Ɣ What does the organization look like now?
ż The City is still building out tools, bylaws and determining best practices. He is hoping that it will
be a significant revenue source, particularly the technology testing aspect of the plan.
Ɣ How much money was expected to come from taxpayers and what, specifically, would the money be
invested in?
ż Ideally, the City (taxpayers) wouldn’t have to invest any money in this effort, but rather, funding
would come from private businesses and organizations. Funding would go towards windows,
insulation and other building efficiency upgrades such as LED lighting, electric car infrastructure,
and other home/community improvements. These are things that may occur on their own, but the
government has an enabling role to play by creating an environment that will allow the private
sector to benefit and creating financial tools to help move the process along.
Ɣ It was noted that bigger businesses are already taking steps toward efficiency and sustainability and cited
King Soopers’ disposal of organic waste. Interest was expressed in helping to facilitate such practices in
small businesses that may not have the budget to consider their impact on the CAP.
ż That is precisely what this plan would help us to do.
Ɣ While the connection between money and climate change helps to incentivize the issue for people, what
funding would go towards helping reach CAP goals?
ż The biggest emissions sources in Fort Collins include: heating/cooling in houses (largest source),
transportation, and waste. This is why most of the instruments that are part of the Climate
Economy Plan focus on these three first.
AGENDA ITEM 3: Fugitive Dust Ordinance Implementation
Jenna Channel, Associate Environmental Planner, presented an update regarding the implementation of the
City’s Fugitive Dust Ordinance, which took effect in November 2016. The purpose of the presentation was to
review the impacts of the Fugitive Dust Ordinance over the past year, present a draft of potential ordinance
revisions, present a draft questionnaire which will be submitted for feedback to local businesses, and to solicit the
AQAB’s unofficial feedback on each of these items.
Presentation
Ɣ Implementation of the Fugitive Dust Act
- The process for investigating fugitive dust is complaint driven. Dust complaints are routed to the
City’s Environmental Services Department (to Jenna, specifically). Jenna then contacts the source
directly to find a resolution. If a resolution cannot be reached in this manner, or if the complaint is too
vague, then an inspector will be deployed to the source area. The inspection is conducted based on
best management practices, and information is formally documented.
Ɣ How many complaints did the City receive during the first year?
- 49 complaints since 2016 (2016 - 25, 2017 - 24)
- All complaints were addressed through outreach and no written warnings or citations were issued.
Air Quality Advisory Board Meeting Minutes
September 18, 2017 ATTACHMENT 1
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Ɣ Proposed Draft Revisions:
- Under the current ordinance, sites less than 5 acres are not subject to the dust control manual until
they have received 2 warnings; proposed revision would be to remove the structured warning process
and leave the decision of whether to issue warnings to field staff based on their field observations and
inspections.
- Data analysis from the past year has revealed that 90% of permits related to fugitive dust activities
were for sites less than 5 acres; these projects are scattered throughout the city in areas of dense
population and cause the most impact. The other 10% is made up of sites 5 acres or larger, and many
of these were outliers that tended to be more on the outskirts of town with fewer residents, causing
less impact. There were almost as many complaints relating to sites less than 5 acres in size as for
sites greater than 5 acres. Other projects or activities are difficult to measure in acres such as
trackout, roads, and hauling truck activity. Based on this, the City would like to remove the 5 acre
threshold from the ordinance to better address fugitive dust in Fort Collins and make all sites of all
sizes subject to the same requirements at all times.
Ɣ A draft questionnaire was presented for Board feedback and is intended for businesses that must obtain a
building permit from the City to gauge how the Fugitive Dust ordinance has affected them over the past
year.
Discussion
Ɣ There was discussion about the fact that sites that received dust complaints in the past year were only
required to show that they had performed best management mitigation practices, regardless of whether
they were effective or not.
- Jenna indicated that there is no explicit language in the ordinance that specifies that practices have to
be done effectively. From her experience, she believes that best management practices are too vague
(for example, the manual suggests the use of water to help manage dust, but does not state how much
must be used for a certain surface area to be effective).
Ɣ What about post-complaint follow-up?
- Complaints are always followed up to inform the party that submitted the complaint of the actions
taken toward resolution.
Ɣ What is the nature of the source sites that received complaints over the past year?
- Complaints were received for a variety of sources, but most of them were construction sites. The City
has trained almost 100 local contractors on best management practices.
Ɣ It was pointed out that the AQAB previously made recommendations regarding the 5-acre clause, but they
were not considered when the ordinance was passed a year ago.
- Jenna explained that, at the time, it was thought that it would be over-burdensome to small
businesses. After a year, there is little evidence that it will overburden small businesses.
Ɣ A discussion followed on the complicated nature of jurisdiction with regards to dust complaints.
- Jenna stated that the City’s jurisdiction only covered sources within City limits, excluding agricultural
sources and a few others, which are covered by state regulations. It was noted that while a source may
not be within City limits, its dust can certainly affect residents. Jenna explained that she has
developed good working relationships with both the county and state and will continue to work with
them on mitigation.
Ɣ What about public outreach, since it’s likely that many citizens are unaware of their own contributions to
the fugitive dust issue?
- Jenna responded that public outreach will be included in the plan to address fugitive dust in Fort
Collins; however, since the dust ordinance is still new to the City, it is her goal to get industry in line
first, then get citizens on board. In addition to enforcement, she’s been working with construction
management classes at CSU and hopes to increase the presence of the Fugitive Dust website to
improve public awareness.
Ɣ The Environmental Service Department needs to provide a report on the effects of the Fugitive Dust
Ordinance to City Council (as prescribed upon the implementation of the ordinance a year ago). The
department would like to get the thoughts of Board members prior to writing a formal memo to Council.
WĂŐĞϱ
- While no formal vote was made or formal action taken by the AQAB, Board members generally
agreed on removing the 5-acre threshold. The individual opinions of the members present suggest
that they support the direction that the Environmental Service Department is moving with regards
to the proposed recommendations related to the ordinance.
Staff Follow-Up: Cassie will collect unofficial feedback from Board members on the questionnaire by Friday,
9/29/17.
Ɣ Mark requests to extend the meeting until 8:30 and the Board agrees.
Board Updates
Ɣ Vara volunteered with the Poudre Valley Rural Electric Association, Inc. to help install solar panels at the
new Coyote Ridge Community Solar Farm, which will generate electricity for low-cost housing, non-
profits and co-op members. Private citizens, instructors from CMC and CSU students all volunteered to
help with the installation.
Ɣ Arsineh recently travelled to Carlsbad to analyze methane emissions from natural gas and found that
pipelines are a significant source of emissions. She feels that the Board should consider pipelines as an
emission source in future discussions.
Ɣ Mark attended Transportation Board, Energy Board and Zoning Board meetings last month and informed
them of AQAB’s desire to coordinate with them. He plans to attend the Natural Resources Board this
week with the same intent.
Ɣ Mark attended a workshop on 8/31/17 which demonstrated the EPA’s Energy Star Portfolio Manager
Tool for benchmarking building energy use.
Ɣ Salud Family Health purchased the old Forney Industries building on Laporte and wants to make it into a
community health hub. They’ve had 2 work sessions to decide what to do with the site; they are
considering everything from a basic health center to a community health/education center. Mark plans to
go to the final workshop to make suggestions about radon education and a few other significant items
discussed during AQAB meetings.
Ɣ Mark and Chris attended an AWMA meeting on 9/12/17 at which Cassie presented an overview of the
City’s air quality program and Bryan Bibeau from Air Resource Specialists highlighted a new ozone
monitoring site coming online in Fort Collins in late 2017, and a Sky Quality Monitor system, which will
support the City's Dark Sky program initiatives.
Ɣ Mark has asked for suggestions on how to keep the time in check during meetings, as the Board
frequently runs over time. He suggests presenters sending out their slides in advance.
Staff Updates
Ɣ Cassie is coordinating with Larimer County to discuss the NCAR FRAPPE study. She will keep the
Board updated.
Meeting Adjourned: 8:28 pm
Next Meeting: October 16, 2017
______________________________
Signed by Chair
ATTACHMENT 2
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ORDINANCE NO. 108, 2018
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING CHAPTER 12, ARTICLE X, OF THE CODE OF THE CITY
OF FORT COLLINS TO REMOVE THE SMALL SCALE SOURCE
DEFINITION AND WARNING REQUIREMENTS FOR FUGITIVE DUST
WHEREAS, on May 3, 2017 City Council adopted Ordinance 044, 2016 enacting a new
Article X in Chapter 12 of the City Code (the “Dust Control provisions”), regulating particular
matter emissions, sometimes referred to as “fugitive dust,” and adopting the Dust Prevention and
Control Manual to protect the health, safety, and general welfare of the public; and
WHEREAS, following the first year of implementation of the Dust Control Provisions,
which concluded on November 1, 2017, staff reviewed the effectiveness of the Dust Control
Provisions and provided the 1-Year Impacts Report (the “Impacts Report”) to Council on March
28-2018; and
WHEREAS, a key recommendation in the Impacts Report was removal of the definition
of “small scale source” and associated warning requirements for violation by a small scale source
in order to simplify understanding and application of the Dust Control Provisions by removing
the distinction between a “small scale source” and any other “dust generating activity or source;”
and
WHEREAS, the only distinction related to a “small scale source’ and any other dust
generating activity or source is a requirement that two written warnings be issued prior to
issuance of a citation; and
WHEREAS, in practice, all complaints received since the Dust Control Provisions were
adopted have been resolved with voluntary compliance and in light of this record of effective
compliance, the addition of two written warnings prior to citing a small scale source appears to
be unnecessary; and
WHEREAS, removal of the distinction between small scale sources and other dust
generating activities or sources would not alter the enforcement practice of outreach, education
and written warnings, but would provide consistent requirements for any citation from all such
activities or sources; and
WHEREAS, for the foregoing reasons, staff recommends adoption of this Ordinance and
believes that modification of the Dust Control Provisions to eliminate distinctions based on a
small scale source will continue to effectively protect the health, safety, and general welfare of
the public in connection with fugitive dust.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
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Section 2. That Section 12-151 of the Code of the City of Fort Collins is hereby
amended by the deletion of the definition “Small scale source.”
Small scale source shall mean a dust generating activity or source occurring on real
property within the City that consists of a single lot or parcel with a total area of not more
than five (5) acres.
Section 3. That Section 12-153 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 12-153. - Prevention of fugitive dust emissions.
(a) Bulk materials transport: Any person who is an owner or lessee of property within
the City on which a dust generating activity or source is located and for which vehicles
are used to transport bulk materials to or from the property on a public or private road or
on a public right-of-way shall comply with and expressly require all contractors and
subcontractors to comply with the required best management practices and, to the extent
set forth therein, the additional best management practices in Section 3.6 of the dust
control manual.
(b) Saw cutting or grinding: Any person, owner or operator that cuts or grinds asphalt,
concrete, brick, tile, stone, or other masonry materials and whose operations are a dust
generating activity or source shall comply with and expressly require all contractors and
subcontractors to comply with the required best management practices and, to the extent
set forth therein, the additional best management practices in Section 3.10 of the dust
control manual.
(ca) Other dust generating activities or sources: Any person who conducts, or is an
owner or operator of, a dust generating activity or source shall comply with the
provisions of the dust control manual.
(db) Violation: It shall not be considered a violation of this section if off-property
transport of fugitive dust emissions occurs while dust control measures are being
implemented consistent with the dust control manual.
(ec) Best management practices: Educational materials regarding best management
practices for dust control shall be made available by the City to owners and operators of
dust generating activities, including but not limited to, a checklist or other descriptive
material.
Section 4. That Section 12-160 of the Code of the City of Fort Collins is hereby
deleted in its entirety.
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Sec. 12-160. - Limitations on violations and penalties—Small scale source.
No owner or operator of a small scale source is required to comply with the provisions of
Section 12-153(c) or is subject to prosecution under that provision, unless, within one (1)
year immediately preceding the date of the alleged violation:
(1) such owner or operator has been issued and served by personal service, served to
the registered agent, or by certified mail, a written warning and notice stating that the
subject property has yielded off-property transport of fugitive dust and that he or she
must prevent, mitigate, and minimize fugitive dust; and
(2) such owner or operator, after having been issued and served with the written
warning in Section 12-160(1), is issued and has been served by personal service, served
to the registered agent, or by certified mail, an additional written warning and notice that
the subject property has after the service of such prior warning and notice yielded off-
property transport of fugitive dust and that he or she must immediately comply with the
provisions of Section 12-153(c).
Section 5. Notwithstanding any provision of the Dust Control Provisions to the
contrary, the City Manager is hereby authorized to adopt conforming changes to the Dust
Control Manual to implement the changes approved in this Ordinance and, after such adoption,
shall deliver an updated copy of the Dust Control Manual to the City Clerk and the City Clerk
shall keep the updated Dust Control Manual on file in accordance with City Code Section 12-
152.
Introduced, considered favorably on first reading, and ordered published this 21st day of
August, A.D. 2018, and to be presented for final passage on the 4th day of September, A.D.
2018.
Introduced, considered favorably on first reading, and ordered published this 21st day of
August, A.D. 2018, and to be presented for final passage on the 4th day of September, A.D.
2018.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
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Passed and adopted on final reading on the 4th day of September, A.D. 2018.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk