HomeMy WebLinkAboutordinance.council.018-91 ORDINANCE NO. /~ (Series of 1991)
AN ORDINANCE ~ENDING ARTICLE V OF CHAPTER 7 OF THE M-JNICIPAL
CODE OF THE CITY OF ASPEN RELATING TO THE MUNICIPAL BUILDING CODE
BY ADDING REGULATIONS AND PERMITTING PROCEDURES FOR EXCAVATIONS
AND DEVELOPMENT IN THE SMUGGLER ~OUlqTAIN SUPERFUND SITE.
~fHEREAS, the United States Environmental Protection Agency
("EPA") has identified and designated an area within the munici-
pal limits of the City of Aspen known as the Smuggler Mountain
Superfund Site ("Site") as being contaminated with mining wastes
containing high concentrations of lead and cadmium and has
consequently placed such Site on the EPA's National Priorities
List for cleanup and remediation under the Comprehensive
Environmental Response, Compensation, and Liability Act, 42
U.S.C. Section 9601, et ~.; and
~HEREAS, the currently defined Smuggler Mountain Superfund
site is approximately ninety (90) percent developed as a residen-
tial area and includes two large condominium complexes, several
smaller condominium developments and approximately 160 individual
homes; and
~HEREAS~ the EPA has determined that the concentrations of
lead and cadmium on the Site pose a potential health risk to
humans, especially small children and pregnant women; and
WHEREAS, the risk or potential risk to public health and
safety from the lead and cadmium concentrations in the Site is
increased through the unregulated excavation or other physical
disturbance of sozls covering or integrated into the areas of
contamination; and
~HEREAS, on or about June 25, 1985, the Environmental
Protection Agency issued an Administrative Order, Docket No.
CERCLA VIII-85-05, pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, directing that
certain parties and persons refrain and be prohibited from
moving, treating, sampling, or disturbing any soil in excess of
one cubic yard ~Tithin the Site absent advance notice to and
permission of the EPA, and further requiring such persons to
provide information identifying the nature of the material to be
moved or disturbed, the plans for handling, storing or removing
such materials, and any proposed or planned storage site for
same; and
WHEREAS, in order to implement and ensure compliance with
its Adninlstrative Order Docket No. CERCLA VIII-85-05, the EPA
has become involved in the review, issuance and monitoring of
excavation and building permits for routine construction activi-
ties within the Site associated with home construction and
remodeling; and
~HEREAS, the review and issuance of excavation and building
permits for construction activities within the Site can be and
should be administered cooperatively between the City of Aspen
and EPA at the local level given adequate and appropriate stan-
dards and regulations applicable thereto; and
WHEREAS, the EPA has advised the City that the demand upon
its personnel and resources in the review and issuance of local
excavation and building permits is burdensome, results in ineffi-
ciencies and time delays, and is unnecessary in the face of the
city's ~¢illingness and expertise to undertake the permitting
process at the local level; and
WHEREAS, the EPA has consulted with the City of Aspen in
regard to the review, issuance and monitoring of excavation and
building permits within the Site; and
WHEREAS, the implementation and enforcement of institutional
controls by the city of Aspen regulating excavation and building
activities within the sits could minimize the disturbance, trans-
fer, inhalation, and ingestion of contaminated soils, thus,
lessening the risks posed by the Site to the public health and
safety; and
~EREAS, the Environmental Protection Agency and the City of
Aspen have conferred and agreed that the adoption and enforcement
of this ordinance will provide the appropriate mechanism by which
the review and permitting of excavation and building activities
within the site can be efficiently and appropriately carried out
at the local level; and
WHEREAS, the City of Aspen would not engage in or attempt to
assune regulatory authority over matters reserved to the EPA by
and through Federal law, regulation or order absent the request
and advice of the EPA; and
WHEREAS, the city Council has determined that this ordinance
is necessary to further the public health, safety and welfare.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO, AS FOLLOWS:
Section 1
That the Municipal Cods of the City of Aspen, Colorsdo, is
hereby amended by adding new Sectlon 7-143, "SPECIAL REGULATIONS
- SMUGGLER MOUNTAIN SUPERFUND SITE", to Article V of Chapter 7,
which section shall read as follows:
SECTION 7-143. SPECIAL REGULATIONS - SMUGGLER MOUNTAIN
SUPERFUND SITE.
(1) APPLICABILITY.
(a) These regulations shall apply to and govern any
development or other activity which may cause or
contribute to the movement or disturbance of con-
taminated soil or other hazardous material within
the boundaries of the Smuggler I(ountain Superfund
Site as those boundaries are identified and desig-
nated by the United States Environmental Protec-
tion Agency. An official map prepared by the
Environmental Protection Agency depicting the
current boundaries of the site shall be maintained
in the office of the Chief Building Inspector for
the City of Aspen. Additional maps of the site
shall be maintained in the offices of the City
Clerk, City Engineer, the Aspen/Pitkin Planning
office and the Aspen/Pitkin Environmental Health
Department. All maps shall be available to the
public during regular business hours.
(b) The standards and regulations as contained in this
section may be amended from time to time so as to
address changes at the Site and/or the federal
laws and regulations applicable thereto.
(c) Nothing contained in this section is intended or
shall be construed to supersede or limit the legal
power and authority vested in the Environmental
Protection Agency under the Comprehensive Environ-
mental Response, Compensation, and Liability Act,
42 U.S.C. Section 9601, et sec., or any other
Federal law, rule or regulation.
(2) DEFINITIONS. As used in this Section, the following
terms shall have the meaning specified unless the
context requires otherwise:
(a) "Activlty" means any action occurring on, above or
below the surface of the ground within the boun-
daries of the Site which results or may result in
a disturbance of one (1) cubic yard of soil within
the Site.
(b) "CERCLA" means the Comprehensive Environmental
Response, Compensation, and Liability Act, 42
U.S.C. Section 9601, et seq., as amended.
(c) "Contaminated soil or material" means soil or
material containing lead concentrations of 1000
parts per million (ppm) or greater.
(d) "Development" means any construction or man-made
change in the use or character of land including,
but not limited to, building, grading, excavating,
digging, paving, drilling, planting or landscap-
ing.
(e) "Director" means the Chief Building Inspector of
the Aspen/Pitkin Regional Building Department.
(f) "EPA" means the United States Environmental Pro-
tectlon Agency.
(g) "Hard surface cover" means a non-permeable or
semI-permeable barrier overlaying the ground sur-
face such as paving, asphalt, concrete, stone or
wood, and including buildings and other permanent
structures.
(h) "Permanent repository" means that portion of the
site as designated by the Environmental Protection
Agency to be utilized for the permanent storage of
contaminated soil and material originating within
the boundaries of the Site.
(i) "Person" means an individual, partnership, cor-
poration, association, company, landowner, tenant,
occupant, contractor, subcontractor or any public
body or political subdivision.
"Site" means those areas within the City of Aspen
that are within the boundaries of the Smuggler
Mountain Superfund Site as designated by the Unit-
ed States Environmental Protection Agency (EPA)
pursuant to the Comprehensive Environmental Re-
sponse, Compensation, and Liability Act, 42 U.S.C
Section 9601, et seq., as amended, and as depicted
on the official map maintained by the Aspen/Pitkin
Regional Building Department and signed by an
official of the EPA.
(k) "Vegetative cover" means plant life, including but
not limited to grass, trees, shrubs, vines and
sod, planted or installed in such a manner so as
to prevent or minimize the exposure of ground
soil.
PROHIBITED ACTIVITY -- EXCEPTION FOR UNITED STATES
GOVERNMENT. No person shall undertake or conduct or
cause to undertake or conduct any activity or develop-
ment within the Site without first complying with the
procedures and performance standards as provided in
this section, except that, in accordance with Section
9621(e) of Title 42 of the United States Code, nothing
contained in this section shall require or be construed
to require the obtaining of a permit by any agency,
employee or contractor of the United States for activi-
ties conducted entirely within the Smuggler Mountain
Superfund Site carried out in compliance with the
provisions of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Section
9601, ~_~ seq.
(4) PE~ITS REQUIRED. No person shall undertake or conduct
any activities or development within the Site involving
the excavation or exposure of more than one (1) cubic
yard of soil without first obtaining a permit from the
Director. Activities or development involving excava-
tion of less than one (1) cubic yard of soil shall not
require a permit, but shall be subject to the require-
ments es set forth in subsection (6) of this Section 7-
143.
(5) PE~{IT PROCEDURES.
(a) Application. All permits shall be applied for on
forms provided by the Director. A fee shall be
assessed in accordance with the building permit
fee schedule as adopted in Chapter 7 of the Munic-
ipal Code. Each applicant for a permit shall, at
a minimum, provide the follo%;ing information:
(i) The location and nature of the proposed ac-
tivity or development,
(ii) The depth of any proposed excavation and
volume of soil or material to be excavated or
disturbed.
(iii) The dimensions of all surface areas to be
disturbed,
(iv) The volume of soil or other material to be
backfilled on site.
(v) The volume of soil or other material proposed
to be disposed of off the excavation site.
(vi) The identification of any facility outside
the Site to which contaminated soil or other
hazardous material are to be transported for
storage or disposal.
(vii) The duration of any exposure of soil or mate-
rial excavated.
(viii) The applicant's plans for identification and
segregation of clean fill or material from
contaminated soil and material during the
period of activity or development.
(ix) The applicant's plans for backfilling con-
taminated soil or material.
(x) The applicant's plans for insuring compliance
with the performance standards as set forth
in subsection (6) of this Section 7-143.
Such additional information as determined by
the Director or the Aspen/Pitkin Environmen-
tal Health Department to be reasonable and
necessary to evaluate the safety and
appropriateness of the proposed activity or
development.
(b) No permit shall be issued without it first having
been reviewed and aDproved by the Aspen/Pitkin
Environmental Health Department utilizing the
performance standards as set forth in subsection
(6) belo~,
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I6) PERFORStANCE STA/~DA=RDS. The following performance
standards shall be adhered to and applied to all activ-
ity or development within the Site.
(a) Excavation and construction. Any disturbed soil
or material that is to be stored above ground
shall be securely contained on and covered with a
durable non-permeable tarp so as to prevent the
leaching of contaminated material onto or into the
surface soil. Where such storage is to extend
beyond five (5) days, all excavated material may,
at the direction of the Director and/or the EPA,
be required to be fenced to a height of not less
than SlX (6) feet in addition to being covered as
herein provided. If available, all soil or mate-
rial not backfilled at an excavation site shall be
removed to a permanent repository within the Site
upon approval by the Aspen/Pitkin Environmental
Health Department. Disturbed soil or material
need not be removed to the permanent repository if
the Aspen/Pltkin Environmental Health Department
finds that: (1) the excavated material contains
less than 1,000 parts per million (ppm) of total
lead, or (2) that there exists a satisfactory
method of disposal at the excavation site, and (3)
that the remaining capacity of the repository
favors disposal of the disturbed soil and material
at the excavation site. Disturbed soil and mate-
rial may also be disposed of outside of the site
upon acceptance of the material at a duly licensed
and authorized receiving facility.
(b) Non-removal of contaminated material. No contami-
nated soil or hazardous material shall be removed,
placed, stored, transported or disposed of outside
the boundaries of the Site without having first
obtained any and all necessary state and/or feder-
al transportation and disposal permits.
(c) Dust suppression. Ail activity or development
shall be accompanied by dust suppression measures
such as the application of water or other soil
surfactant to minimize the creation and release of
dust and other particulates into the air. The
Aspen/Pitkin Environmental Health Department may
require air monitoring to insure the effectiveness
of dust suppression measures.
(d) Vegetable and flower gardening or cultivation. No
vegetables or flowers shall be planted or cultl-
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rated within the boundaries of the Site except in
garden beds consisting of not less than eighteen
(18) inches of soil containing no more than 999
parts per million (ppm) lead.
(e) Landscaping. The planting of trees and shrubs and
the creation or installation of landscaping fea-
tures requiring the dislocation or disturbance of
more than one (1) cubic yard of soil shall require
a permit as provided in Section 7-143(4) above.
(7) SOILS TESTING. The Director or the Aspen/Pitkin Envi-
ronmental Health Department may require any person
undertaking to conduct activity or development within
the Site to test any soil or material to establish its
total lead (Pb) content for purposes of determining the
application of any of the provisions of this Section 7-
143. All testing shall utilize and adhere to protocols
established or approved by the United States Environ-
mental Protection Agency.
(8) INSPECTION AND MAINTENANCE. In addition to all other
requirements as set forth in this Section 7-143, the
following additional requiremente shall apply to the
use and maintenance of all lands within the Site,
including but not limited to lawns, play areas and
parking lots.
(a) All areas within the Site shall be subject to
inspection by the Aspen/Pitkin Environmental
Health Department in order to enforce the provi-
sions of this Section 7-143. Inspections shall be
done with the consent of the property owner or
occupant. If consent is denied, inspection shall
be obtained pursuant to court order.
(b) All areas withln the Site shall be maintained with
a permanent vegetative or hard surface cover.
Except as allotted pursuant to a duly obtained
permit issued under this section, no person shall
alter any part of a permanent vegetative or hard
surface cover absent prior notice to the Aspen/
Pitkin Environmental Health Department.
(c) All areas within the Site shall be maintained in a
manner to minimize erosion, including adequate
provision for drainage and surface water run-off
so as to prevent the formatlon of standing pools,
ditches or gullies.
(d) Ail lawns and other vegetated areas within any
condominium or apartment common area shall be
conspicuously posted to notify all persons of tho
permitted use of such areas. Those areas not
intended for recreational use shall be restricted
against all other uses so as to prohibit or mini-
mize pedestrian and other traffic. Lawns and
vegetated areas may be fenced at the direction or
approval of the Aspen/Pitkin Environmental Health
Department. Ail fencing materials shall be ap-
proved by the Diroctor and may include live hedg-
es. Fencing shall not be loss than throe feet six
inches (3'6") nor more than six feet (6') in
height.
(e) Any fence, wall or other barrmer installed to
limit or prevent accoss to any area or location
within the site shall be maintained in such a man-
ner so as to insure its effectiveness against
trespass or other intrusion.
(f) Except as otherwise determined by the EPA and the
Aspen/Pltkin Environmontal Health Department, tak-
ing into consideration tho nature and size of any
given common area and its historical and antici-
pated uso, all homeowner associations or persons
charged with the maintenance of any common area
serving a condominium or apartment complox shall
submit to the Aspen/Pitkin Environmental Health
Department for its review and approval an annual
maintenance plan for such co~umon aroa(s) and a
corresponding budgot on or bofore January 1 of
each year.
(i) The Aspen/Pitkin Environmental Health Depart-
ment shall consult with the EPA in reviewing
and approving all maintenance plans.
(mi) Every maintenance plan shall include, at a
minimum, regular monthly inspection of all
vegetative cover, fertilization of vogetation
as nocessary, regular grass cutting, the
replacoment of dead sod, trees and shrubbery,
and tho repair or replacement of any damaged
fences, hedges or hard surface covers.
(mil) Every maintenance plan shall be secured by a
bond or other acceptable financial security
guaranteeing the timely and full performance
of all maintenance. Bonds or other security
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shall provide that the City of Aspen may draw
upon same to undertake required maintenance
in the event an approved maintenance plan is
not being fully implemented. The City of
Aspen shall provide written notice to cure
any deficiency no less than ten (10) days
prior to taking action as authorized herein
to enforce the terms of any maintenance plan.
(g) No new outdoor playing field, playground, or other
recreational area shall be established or con-
structed within the Sits, nor shall existing play-
ing fields, playgrounds or recreational areas be
expanded, without the prior review and approval of
the Director and the Aspen/Pltkin Environmental
Health Department.
(9) APPEALS. Any person adversely affected or aggrieved by
a decision of the Director or the Aspen/Pitkin Environ-
mental Health Department made pursuant to this Section
7-143 may appeal such decision to the Board of Appeals
and Examiners pursuant to the procedures as set forth
in Division 2 of Article II of Chapter 7 of the Muni-
cipal Code.
Section 2
The city Clerk is directed to file and have recorded a true
and accurate copy of this ordinance, along with a true copy of
the official map depicting the boundaries of the Smuggler
Mountain Superfund Site, in the office of the Pitkin County Clerk
and Recorder.
Section 3
This ordinance shall not have any effect on existing litiga-
tion and shall not operate as an abatement of any action or
proceeding now pending under or by virtue of the ordinances
repealed or amended as herein provided, and the same shall be
construed and concluded under such prior ordinances.
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Section 4
If any section, subsection, sentence, clause, phrase or
portion of this ordinance is for any reason held invalid or
unconstitutional in a court of competent jurisdiction, such
portion shall be deemed a separate, distinct and independent
provision and shall not affect the validity of the remaining
portions thereof.
Section 5
A public hearing on the ordinance shall be held on the
day of , 1992, in the City Council
Chambers, Aspen City Hall, Aspen, Colorado.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by
the city Council of the City of Aspen on the 28th day of May,
1991.
John S. Bennett, Mayor
ATTEST:
Kathryn S. Koch, City Clerk
FINALLY adopted, passed and approved this day of
, 1991.
John S. Bennett, I4ayor
ATTEST:
Kathryn S. Koch, city Clerk
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