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HomeMy WebLinkAboutordinance.council.012-83 RECORD OF PROCEEDINGS 100 Leaves ORDINANCE NO.12 (Series of 1983) AN ORDINANCE OF THE CITY COUNCIL OF ASPEN, COLORADO, AMENDING CHAPTER 11 OF THE ASPEN MUNICIPAL CODE, AS FOLLOWS: RENUMBERING THE PRESENT WATER QUALITY SECTIONS OF CHAPTER 11; RENUMBERING THE PRESENT RUBBISH, WEEDS AND BRUSH SECTIONS OF CHAPTER 11; RENUMBER- ING AND AMENDING THE PENALTIES AND RELIEF SECTION OF CHAPTER 11, INCLUDING THE IMPOSITION OF CRIMINAL PENALTIES; AND AMENDING CHAP- TER 11 TO INCLUDE SECTIONS ON AIR POLLUTION, SETTING FORTH THE CITY OF ASPEN'S PUBLIC POLICY WITH RESPECT TO AIR POLLUTION, SET- TING FORTH DEFINITIONS WITH RESPECT TO AIR POLLUTION REGULATIONS, SETTING FORTH RESTRICTIONS ON THE NUMBER AND KINDS OF SOLID-FUEL BURNING DEVICES PERMITTED WITHIN THE CITY OF ASPEN, SETTING FORTH RESTRICTIONS ON THE TYPES OF RESTAURANT GRILLS AND RESTAURANT GRILL EMISSIONS-CONTROL DEVICES PERMITTED WITHIN THE CITY OF ASPEN IN ORDER TO CONTROL EMISSIONS FROM COOKING OF HAMBURGER AND OTHER HIGH-FAT-CONTENT MEAT IN COMMERCIAL FOOD SERVICE ESTABLISHMENTS AND SETTING FORTH ENFORCEMENT AND COMPLIANCE PROCEDURES AND ESTAB- LISHING PENALTIES. WHEREAS, the City Council of the City of Aspen has and obliga- tion to protect the health, welfare and safety of the citizens and community of Aspen; and WHEREAS, the City Council finds that levels of air pollution measured in and around the City of Aspen, Colorado, for the past six (6) years have exceeded levels that the U.S. Environmental Protection Agency (EPA) has determined to the healthful levels; and WHEREAS, the City Council finds that the use of solid fuel burning devices, including, without limitation, coal-burning stoves, fireplaces and airtight wood stoves has contributed signi- ficantly to the degradation of air quality within the City of Aspen; and WHEreAS, the EPA has determined that airtight wood stoves, as commonly operated to heat a home, emit significantly more carbon monoxide and particulate matter than do coF~on open fireplaces, for a given amount of wood burned, and so should be included in any solid fuel burning device control ordinance; and RECORD OF PROCEEDINGS 100 Leaves WHEREAS, residential coal-burning devices cause more air pollution than other types of solid fuel burning devices; and WHEREAS, the City Council therefore believes that it is in the best interests of public health, safety and welfare, that the number of such solid fuel burning devices should be limited and the type and operation of such devices should be regulated; and WHEREAS, the 1977 Aspen Area Emissions Inventory showed that conventional charbroiler-type grills used for cooking of hambur- gers and other high-fat~content meats in food service establish- ments are the second-leading source of overall air pollution in the Aspen area; and WHEREAS, the City Council has determined that there has been no Substantial change in the levels of this source of air pollution since 1977 and this source of air pollution is a present danger to the health, welfare and safety of the citizens and community of Aspen; and WHEREAS, the City Council of the City of Aspen, Colorado, desires to limit the air pollution caused by conventional char- broiler grilling of hamburger and other high-fat-content meat in food service establishments within the City of Aspen; and WHEREAS, the City Council finds that the pollution caused by both solid fuel burning devices and conventional charbroiler-type meat grills is exacerbated by the altitude, topography, climate and meteorology of the City of Aspen; and WHEREAS, the City Council finds that both of these sources of air pollution may be minimized by presently-existing, practical and economical technologies; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: 2 RECORD OF PROCEEDINGS 100 Leaves Section 1 That the title of Chapter 11, Aspen Municipal Code, be repealed and reenacted to read as follows: "HEALTH - WATER QUALITY, AIR QUALITY AND CONTROL OF RUBBISH, WEEDS AND BRUSH." Section 2 That Sections 11-1 to 11-10, Aspen Municipal Code, consecu- tively and inclusively, be renumbered to read Sections 11-1.1, 11-1.2, 11-1.3, 11-1.4, 11-1.5, 11-1.6, 11-1.7, 11-1.8, 11-1.9 and 11-1.10, consecutively and inclusively. Section 3 (a) That the reference to "Section 11-3" in new Section 11-1.2 be amended to read !'Section 11-1.3". (b) That the references to "Section 11-3" and "Section 11-2", consecutively, in new Section 11-1.4 be amended to read "Section 11-1.3" and "Section 11-1.2", consecutively. (c) That the references to "Section 11-3" in new Sections 11-1.5, ii-l.7(b), 11-1.8 and 11-1.10 all be amended to read "Section 11-1.3". Section 4 That Sections 11-11 to 11-13, Aspen Municipal Code, consecu- tively and inclusively, be renumbered to read Sections 11-3.1, 11-3.2 and 11-3.3, consecutively and inclusively. Section 5 That the reference to "Section 11-12" in new Section 11-3.3 be amended to read "Section 11-3.2". Section 6 That a new Section 11-2, et seq., Aspen Municipal Code, be enacted as follows: "Section 11-2.1 Air q~ality, .declaration of policy.. The City Council hereby finds and declares that air quality is anJ. important component of the health, safety and welfare of the citizens and community of the City of Aspen aha that the air quality in and around the City of Aspen is threatened 3 RECORD OF PROCEEDINGS 100 Leaves by various pollutants. The City Council finds and declares that it has a duty to protect and improve the air quality in and around the City of Aspen for the health, safety and general welfare of the City but also for the econcmic and aesthetic well-being of the City as a resort community and to preserve the scenic natural resources of the cc~mnnity. To this end, it is the p~rpose of ~his section to achieve the maxiu~m practical degree of air purity possible by requiring the use of all available practical methods and techniques to control, prevent and reduce air pollution thruoughout the City and to maintain a co-operative air quality program with the County of Pitkin and the State of Colorado. It is further declared that the control, prevention and abatement of air pollution within the City. s-is a matter if signigicant local interest and that the following regula- tions are enacted by the exercise of the City's police powers, inclu- ding those granted bo the City pursuant to Section 25-7-128, CoR.S. 1973, as amended. section 11-2.2 Definitions. (a) "Board'; shall mean the duly-constituted Aspen/Pitkin County Clean Air Advisory Board. (b) "Department" shall mean the Aspen/Pitkin Enviror~ental Health (c) "Director" shall mean the director of the Aspen/Pitkin Envircmental Health Department. (d) "Extensive remodel" shall mean construction, remodelling or reconstruciton projects in food service operations in which changes are made that substantially affect the flow of food in the kitchen operation or the manner or method of preparation of food, where new equipment is purchased ~d other equil~nent moved or rearranged, in which the square footage of the establishment or the kitchen alone is increased, in which the seating and/or~ the serving capacity is increased, or in which changes are made that put the existing facilities (includio~ restrocm facilities) at Or near their maximum operating capability. (e) "High-fat-content meat" shall mean any maeat and/or the meat portion of any meat product having a pre-cooked fat percentage equal to or greater than fifteen percent (15%) by weight according to established laboratory testir~ procedures as determined by the Department, such meat and/or meat products including, without limitation, hamburger, chopped beef, ground beef, beef sausage, beef ribs, pork sausage, pork ribs and sausage made frc~ any form of meat or combinations of meats. (f) "Oregon Method 7" shall mean tests prc~ulgated by the State of Oregon Department of Enivror~ental Quality in effect on the date of certification as provided herein. (g) "New establishment" shall mean a food service establis~uent beginning operation in a new location or one beginni~ operation in an existing establishment which has been closed for a period Of a month or more or beginning after a previously existing state food service license had been cancelled. 4 RECORD OF PROCEEDINGS 100 Leaves (h) "Solid fuel burning devices" shall mean a free-standing fireplace, air tight stove, Frai~klin stove, conventional masonry fireplace, a prefabricated zero-clearance fireplace, any similar fireplace whose operation requires it to be built into the structure as a component of the building, a fireplace insert or any other device intended for use to heat interior lm~bitable space in the installation of which requires a building permit. (i) "Zero clearance fireplace" shall mean a manufactured fireplace %hat is installed as a prefabricated unit and designed and insulated an such a way that it can be placed J~l direct contact with combustible materials with no significant risk of fire. Section 11.2.3 Solid fuel burqing devices. It shall be unlawful for any person to construct, install, maintain or operate any solid fuel burning device within the City of Aspen 3_n a manner not in cc~apliance with hhis section. (a) No building permit shall be issued for or including the installation of any solid fuel burning device(s) or component(s) thereof unless %he number of such device or devices in each structure is less than or equal ro the following: (1) A single-family dwelling may have one solid fuel burning device per d~lling. (2) A hotel, motel, inn or lodge may have one solid fuel burning device per lobby. Solid fuel burning devices in individual guest rocks are hereby prohibited. (3) A restaurant or bar may have one solid fuel burning device per restaurant or bar or restaurant/bar combined. (4) A duplex may have one solid fuel burning device per unit if the unit has 1,000 s~re feet or more of internal heated floor area. Solid fuel burning devices in duplex units s~aller than 1,000 square feet are hereby prohibited excep~ as provided in Subsection (b) below. (5) Multi-plexes and all other structllres n~y have one solid fuel burning device per structure. ~b) Any solid fuel _b~ning device having particulate emissions of less than 0.330 x 10- gm/joule of useful heat output, ayeraged over at least six tests, or no more than 0.65 x 10-~ gm/joule of useful heat output for any single test, shall be exempt from provision (a) of this regulation. NO building permit shall be issued for installation of any such exempted solid fuel burning device in any building of the City of Aspen unless the Aspen/Pitkin Environmental Health Departmen~ has first certified in writing that that device has particulate emissions less khan or equal to those specified above. The Depar~nent will so certify an~_~eef~£.togha~e~tha~r~quired e~nissions provided tests on that brand or class of device are conducted by an independent testing laboratory using the "Oregon Mef_b~d 7" and operating procedures as determined by the Oregon Department of Envircraental Quality or en equivalent procedure, as determined by the Department. Tests must be conducted at a low-medium or lower burn rate, as defined by "Oregon Method 7". 5 RECORD OF PROCEEDINGS 100 Leaves On or before June 1 of each year, the Department will publish a list of devices known to be certified, which list shall be available for inspection at the Department's office's (c) Ail solid fuel burning devices shall be constructed, installed, maintained, and operated in such a manner that their operation will result in a new increase in heating energy, i.e. that the heat energy supplied to the living area will be greater than that lost through air exchange during combustion; and, in addition, be constructed in conformance with design standards promulgated (or approved) by the City Engineer (as such standards now exist and as such st~nx~rds may be amended or updated frc~ time to time). (d) NO solid fuel burning device shall be allowed to burn coal except for those devices already being used to burn coal on June 1, 1983. Prima faci proof of such operation prior to June 1, 1983, shall be de~ned to be given if operators of such devices provide proof in writing to the Aspen/Pitkin Envirc~nental Health Department of such operation within three (3) months of the effective date of adoption of this ordinance. Section 11-2.4 Restaurant grills. It shall be unlawful for any person to construct, maintain or operate any restaurant grill in a coranercial food service operation within the City of Aspe2~ 1 a manner not in compliance with this section. (a) Any new food service establishment or a food service establishment proposing to conduct an extensive remodel within the City of Aspen, and which establishment has high-fat-content meat listed on the establishment's printed menu (or otherwise regularly servir~ such it~us), henceforth shall be required to install a grooved griddle or, if some other cooking device is used, to install alternate emissions control devices having ultimate emissions equivalent to a grooved griddle in proper working order, as determined by the Aspen/Pitkin Envirc~ntal Health Department, such alternate devices includir~, without limitation, afterburners and electrostatic precipitators. (b) All existing food service establishments having high-fat content meat listed on the establishment's printed menu (or otherwise regularly serving such irons), shall within two (2) years after the effective date of this ordinance, replace all charbroiler-type units (i.e. those units that allow fat from the meat to fall onto heated surfaces) with grooved griddles or, if sc~e other cooking device is used, install alternate ~nissions-control devices having ultimate emissions equivalent to that of a grooved griddle in proper working order, as determined by the Aspen/Pitkin Enviromentai Health Dpartraent, such alternate devices including, without limitation, afterburners and electrostatic precipators. RECORD OF PROCEEDINGS 100 Leaves Section 11-2.5. Compliance orders. (a) When the Department has reasonable evidence that a person is · n violation of these regulations, the Director shall issue an order to show cause why such violation should not be prose- cured hereunder. Such notice shall be served upon such person by first-class mail to its local business address or its last known address and ~ notice shall provide for a date of a show-cause hearin~ not later than ten (10) days after receipt of said notice. (b) At said show-cause hearing held before the Director, if the person fails to show cause why the violation should not be prosecuted or fails to appear at the hearing, the Director shall issue an order specifying a date for final cc~pliance with these regulations, which date shall be not less than ten (10) and not mOre than thirty (30) days frc~ the show-cause hearing date. (c) If any part of this section shall be found to be inconsistent with the requir~nents of Section 25-7-118, C.R.S. 1973, as amended, the stricter or more inclusive provisions shall apply hereunder. Section 11-2.6. Hearings. (a) All hearings under Section 11-2, e~t ~q., shall be before the Asper%/Pitkin Clean Air Advisory Board, which shall make such rules ar~ regulations for the conduct of its hearings not in- consistent with this section, the Municipal Code and applicable ordinances and state law. (b) At any time prior to the final ccmpliance date specified in the final compliance order, the person may request a public hearing in writing to %he Director for the purpose of a review of the Director's order, or to request a modified order or a delayed c~mpliance order. Within ~wenty (20) days after receipt of such a request, the Director shall forward %he request ~o the Board, which shall hold a public hearing thereon within sixty (60) days of its receipt of the request. The Board shall issue its decision and order within thirty (30) days of such hearing. (c) Grounds for a modified or delayed cc~pliance order may include: (1) Planned termination of operations of the polluting facility: (2) Planned replac~nent of the polluting facility; (3) A change in the operations of the polluting facility, including start-up and shut-down operations and excusable malfunction; and (4) Practical economic hardships. 7 RECORD OF PROCEEDINGS 100 Leaves (d) Notice of a hearing before the Board shall be published in a newspaper of general circulation in the area at least thirty (30) days prior to the date of such hearing. The Director shall appear on behalf of the City. All testimony before the Board shall be taken under oath and a complete record of the hearing shall be kept in like manner for City Council meetings. (e).. Any information relating to secret processes or methods of manufacture or production shall be heard an executive session if so requested by the party seeking such protection if the Board finds good cause for so doing. (f) persons with interests in the proceeding may be heard and ennitled to cross-examine witnesses and subject to cross-examination. (g) The Board shall issue written findings and order within thirty (30) days of the date of the hearing. (h) In all matters before the Board, except in subsection (e) above, the Department shall have the burden of proof. (i) No order of the Board shall take effect until forty-five (45) days after the dane on which it is issued, unless the Board grants application for a rehearing on the grounds of newly-discovered material evidence. (j) If any part of this section shall be found to be inconsistent with the requir~aents of Section 25-7-119, C.R.S. 1973, as amended, the stricter or mere inclusive provisions shall apply hereunder. Section 11-2.7. Judicial review. Judicial review of any order or proceedings under this regulation may be had pursuant ~o Section 25-7-120, C.R.S. 1973, as amended, or as otherwise provided by law. Section 11-2.8. Injunctions. Petitions for injunctions relating to any order or proceeding t~nder this regulation may be filed pursuant to Section 25-7-121, C.R.S. 1973, as amended, or as otherwise provided by law. Section 11-2.9. Interpretation. This section 11-2 et seq. shall be interpreted and construed consistent with the provisions of Section 25-7-128, CoR.S 1973, as ame3aded, and in the event of conflict between this ordinance and state statute, the stricter or more inclusive provisions shall apply hereunder. Section 7 A copy of the City Engineer design standards above referred to and prc~ulgated as of the effective date of this ordinance are attached as E~hibit "A". 8 RECORD OF PROCEEDINGS 100 Leaves Section 8 That Section 11-14 be renumbered 11-4 and repealed and reenacted to read as follows: Section 11-4. perk~lties and relief. (a) Any person, upon conviction of a violation of any provision of this chapter, shall be subject to a fine not to e~ceed three hundred dollars ($300.00) or imprisionment in the county jail for a period of not more than ninety (90) days, or both, at the discretion of the Court, for each seperate offense, and may be enjoined from any further or continued violation hereof. Each day any violation of this chapter shall continue, shall constitute a separate offense hereunder. (b) In addition to the penalties and relief provided for in subsection (a) hereof, any person fouox~ in violation of any provision of Sections 11-1.1 to 11-1.10 of this chapter shall reimburse the City for any expenses incurred in preventing pollution of the municipal water supplies caused by said person, any expenses incurred in restoring municipal water supplies to the standards set forth in Section 11-1.2, or any expense incurred in improving any intake, treatment facility or other part o~ the water works, which im~rov~nent is necessitated by the violation found hereunder." Section 9 The Director of the Aspen/Pitkin Enviror~ental Health Department is hereby directed to forward this ordinance to the Division of Admin- istration of the Colorado Department of Health for inclusion in the comprehensive state implementation plan, pursuant uo Section 25-7-105(lXa) (II) and Section 25-7-128(1), C.R.S. 1973, as an~nded; for administration of the local regulations as part of the state plan, pursumnt to Section 25-7-111, CoR.S. 1973 as amended; for enforcement of the local regulations as part of the state plan, pursuant to Section 25-7-115, C.R.S. 1973, as amended. Section 10 If any section, subsection, sentence, clause, phrase or portion of this ordinance Ks for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be de~aed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions thereof. '9 RECORD OF PROCEEDINGS 100 Leaves Section 11 A public hearing on the ordinance shall be held on the in the City Council Cha~ers, 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 /~ day · Her~n Ede~ ~0r kTTEST: Kathry~//S. Koch, City Clerk FINALLY adopted, passed and approved on this ~ "' day of ~ , 1983. ~TTES T: ~ch, ~ity Ci~rk