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Home My WebLink AboutCOUNCIL - AGENDA ITEM - 09/04/2018 - SECOND READING OF ORDINANCE NO. 108, 2018, AMENDINAgenda Item 4 Item # 4 Page 1 AGENDA ITEM SUMMARY September 4, 2018 City Council STAFF Cassie Archuleta, Senior Environmental Planner Jody Hurst, Legal SUBJECT Second 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 This Ordinance, unanimously adopted on First Reading on August 21, 2018, amends the City Code, Chapter 12, Article X, to remove small source written warning requirements for violations, and instead applies the City’s standard citation procedure for civil infractions, which allows the option for written warnings. This simplifies education, outreach and enforcement related to fugitive dust. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, August 21, 2018 (w/o attachments) (PDF) 2. Ordinance No. 108, 2018 (PDF) Agenda 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 ATTACHMENT 1 Agenda Item 13 Item # 13 Page 2 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) -1- 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. -2- 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.” 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) 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. (b) 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. (c) 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. 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 -3- Passed and adopted on final reading on the 4th day of September, A.D. 2018. __________________________________ Mayor ATTEST: _______________________________ City Clerk