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TC Ord. No. 1997-11 Amending Title 8 of the Avon Muni Code Declaring Odor PollutionORDINANCE NO. 97 - 11 AN ORDINANCE AMENDING TITLE 8 OF THE MUNICIPAL CODE OF THE TOWN OF AVON; DECLARING ODOR POLLUTION TO BE A PUBLIC NUISANCE; PROVIDING REGULATIONS WITH RESPECT THERETO; AND PROVIDING PENALTIES FOR THE VIOLATION HEREOF BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON AS FOLLOWS: Section 1. Amendment. Title 8, Municipal Code of the Town of Avon, is amended by the addition of a Chapter 8.31 as follows: ODOR POLLUTION 8.31.010 Legislative findings and intent. (a) The Town Council finds that air pollution in the form of odor and particulate contaminants presents a threat to the health, safety and welfare of the inhabitants of the Town. (b) It is the intent of the Town Council to regulate activities contributing to the degradation of the air quality within the Town limits in order to preserve the health, safety and welfare of its inhabitants. 8.31.020 Definitions. The following words and phrases have the following meanings unless the context clearly indicates otherwise: (1) Atmosphere means all space outside of buildings, stacks or exterior-ducts. (2)--Odor or odorous air contaminants shall mean any fume, smoke, vapor, gas, suspended solid or liquid matter, or any combination thereof which contains properties or elements detectable by the sense of smell. (3) Particulate air contaminants means visible, man- made or process -made dusts with an aerodynamic diameter not more than a nominal ten (10) microns (PM -10). (4) Person means any person, firm, association, organization, partnership, business, trust, corporation, company, contractor, supplier, installer, user or owner or any representative, officer or employee thereof. Any person or entity or combination of persons or entities may be jointly or severally liable for causing air emissions above currently permitted levels. 8.31.030 Odor Violations. (a) It shall be deemed an unlawful nuisance for any person to cause or permit the emission of odorous air contaminants or particulate air contaminants from any source such as to result in detectable odors and /or particulate emissions within the Town as defined above which leave the premises upon which they originated and which interfere with the reasonable and comfortable use and enjoyment of property. An odor shall be deemed to interfere with reasonable and comfortable use and enjoyment of property if it is detectable by a trained observer and which meets or exceeds any of the following limits: (1) It is a violation if odorous contaminants are detected when one (1) volume of the odorous air has been diluted with 5 or more volumes of odor - free air, as measured by the Barnaby Chaney Scentometer or any other instrument or device designated by the Colorado Air Pollution Control division, as so shown by a certificate from the Division, which said certificate_ shall be admitted in evidence as a self- authentication document. Personnel shall be certified and equipment shall be certified and maintained in accordance with the manufacturer's specifications and recommendations and the Colorado Air Pollution Control Division. (2) It is a violation to continuously emit particulate air contaminants above levels allowed in the U.S. EPA National Ambient Air Quality Standards (NAAQS) and /or Colorado Department of Health Air Standards, whichever is more strict, and then at no more than twenty percent (20 %) opacity. (3) A violation exists and is considered an odor alert condition when the Town is in receipt of three (3) or more calls from individuals representing separate properties within the Town within a six -hour period relating to a single odor description. The Town shall provide a designated phone number to call to report an odor complaint. The complaints shall be recorded by a staff member or by electronic means and shall be considered as an individual odor complaint when the following information is provided: E a. Name, address and phone number of complainant. b. Time and date of call. C. Description of odor nuisance, including estimated location or source of complaint and any prevailing wind or weather conditions observed. The Town shall investigate all complaints to verify the source of the odor nuisance and take appropriate corrective action. (b) Exceptions. Violation of the odorous air contaminant standard may not be subject to penalty if any of the following circumstances is deemed to exist: (1) Upset conditions or the breakdown of a device, facility or process that causes an odorous emission if the upset condition or breakdown could not be reasonably anticipated and prevented and if immediate action is taken to eliminate the upset condition and /or repair the equipment. The Town shall be verbally notified of the upset condition or breakdown within eight (8) hours of the occurrence and a written plan detailing the upset condition or breakdown and measures taken to correct it shall be submitted within three (3) working days of the event and the work concluded within the time established by the plan. (2) The routine start -up, shutdown, cleaning, maintenance or testing of: a. Machinery or equipment causing the emission. b. Machinery or equipment designated to control, reduce or eliminate emissions, where persons undertaking such activities notify the Town in writing forty -eight (48) hours in advance, and the procedure is not conducted during a high- pollution alert. Such notice shall include the date, duration and approximate time that the repair or maintenance activity shall be engaged in. Approval of the activity must be provided in writing by the Town, which may add limitations to the proposed actions if deemed necessary to best address the public welfare. After receipt of said notice, the Town may, if deemed necessary, issue 3 public service advisories that odor conditions may exist (3) Odorous air contaminants existing solely within residences, or solely within commercial and industrial plants, works or shops, or to affect the relations between employers and employees with respect to or arising out of any condition of air pollution, provided that such odors do not penetrate the atmosphere and extend beyond the property boundary so as to become a public nuisance. 8.31.040 Enforcement. (a) The odor pollution control program established by this Chapter shall be implemented, administered and enforced by the Town's Community Development Department or other Town departments and /or divisions as determined by the Town Manager. (b) To implement and enforce this Subchapter, the Town code enforcement officer may: (1) Conduct research, monitoring and other studies related to odor pollution. (2) Review public and private projects, including those subject to mandatory review or approval by other departments, for compliance with this Chapter, if these projects are likely to cause odor pollution in violation of this Chapter. (3) Upon presentation of proper credentials, and after reasonable notice, enter, inspect and test any property or place regarding which complaints have been filed or which has been designated as a significant odor generator and inspect any reports, records or equipment deemed necessary at any time. An administrative search warrant may be obtained as provided in this Code upon failure of the owner or his or her authorized representative to permit such inspection upon request. (c) If an odor alert condition is verified by the Town code enforcement officer, that officer shall then: (1) Determine the location of the complaints which result in the establishment of the odor alert condition. 4 (2) Prepare a summary of the odor descriptions contained in the establishment of the odor alert condition. (3) Determine the prevailing weather condition at the time of the alert including but not limited to, wind direction, temperature, wind velocity, humidity and general weather conditions. (4) Visit the general area from which the majority of complaints were generated in order to characterize the nature of the complaint. (d) Following such action, the Town code enforcement officer shall attempt to make a determination as to the industry or source of origin of the odor alert. (e) If the determination is made as to the origin of the odor alert, the code enforcement officer shall notify the owner operator or manager of the facility or other responsible party that the facility has been designated as the point source or origin of the odor alert. Such notification shall contain the following: (1) The date, times and locations of the occurrence of the odor nuisances. (f) If the determination is made as to the origin of the odor alert, the Town code enforcement officer shall: (1) Notify the owner, operator or manager of the facility or other responsible party that the facility has been designated as the point source or origin of the odor alert and is in potential violation of this Chapter. (2) Inspect the facility's operating log books pertaining to odor control, the instrumentation monitoring the odor control and process equipment, any processes and equipment that may relate to odor generation and control, and any other equipment and processes that are determined necessary by the Town code enforcement officer. (g) Suspension and revocation of permit. Section 2. Severability. If any part, section, sentence, clause or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity 5 of the remaining portions of this Ordinance; and the Town Council for the Town of Avon hereby declares it would have passed this Ordinance and each part, section, sub - section, sentence, clause or phrase thereof, irrespective of the fact that any one or more parts, sections, sub - sections, sentences, clauses or phrases be declared invalid. Section 3. Penalty. It is unlawful for any person to violate any provision of, or to fail to comply with any of the requirements of, this Ordinance. Any person who violates any provisions of this Ordinance shall be punished by a fine of not more than one thousand dollars or by imprisonment for a period of not more than one hundred eighty days or by both such fine and imprisonment; provided, no person under the age of eighteen years shall be punished by imprisonment. Each day the violation continues shall be deemed to be a separate offense. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, this 9th day of September, 1997 and a public hearing on this Ordinance shall be held at a special meeting of the Town Council of the Town of Avon, Colorado on the 30th day of September, 1997 at 5:30 P.M. in the Municipal Building of the Town of Avon, Colorado. Jack F wcett Mayor Attes , Patty Lambe4, CMC, Town Clerk INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED this 30th day of September 1997. Jack Fawcett, Mayor At Patty Lambkert, CMC, Town Clerk APPROVED AS TO FORM: 4 To vin Attorney STATE OF COLORADO; ) COUNTY OF EAGLE ) SS TOWN OF AVON ) NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO AT 5:30 P.M. ON THE 30TH, DAY OF SEPTEMBER, 1997, AT THE TOWN MUNICIPAL BUILDING FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO. 97 -11 SERIES OF 1997: AN ORDINANCE AMENDING TITLE 8 OF THE MUNICIPAL CODE OF THE TOWN OF AVON; DECLARING ODOR POLLUTION TO BE A PUBLIC NUISANCE; PROVIDING REGULATIONS WITH RESPECT THERETO; AND PROVIDING PENALTIES FOR THE VIOLATION HEREOF A copy of said Ordinance is attached hereto, and is also on file at the office of the Town Clerk, and may be inspected during regular business hours. Following this hearing, the Council may consider final passage of this Ordinance. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado Dated this 12th day of September, 1997. TOWN OF VON, COLORADO BY: Patty La ert,_CMC Town Clerk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON SEPTEMBER 12, 1997; EAGLEBEND APARTMENTS - CLUBHOUSE LAUNDRY; CITY MARKET IN THE MAIN LOBBY COASTAL MART, INC.; AND AVON MUNICIPAL BUILDING IN THE MAIN LOBBY