TC Minutes 01-09-2001MINUTES OF THE REGULAR MEETING OF THE TOWN COUNCIL
HELD JANUARY 9, 2001
A regular meeting of the Town of Avon, Colorado was held in the Municipal Building,
400 Benchmark Road, Avon, Colorado in the Council Chambers.
The meeting was called to order by Mayor Judy Yoder at 5:30 PM. A roll cal l was taken
with Councilors Mike Brown, Debbie Buckley, Peter Buckley, Mac McDevitt and Mayor
Protem Buz Reynolds present. Councilor-Rick Cuny was absent. Also present were
Town Manager Bill Efting, Assistant Town Manager Larry Brooks, Town Clerk Kris
Nash, Human Resources Director Jacquie Halburnt, Finance Director Scott Wright,
Police Chief Jeff Layman, Town Engineer Norm Wood, Public Works employee Gary
Padilla, Transportation Director Harry Taylor.as well as members of the public.
Second Reading of Ordinance No. 00-14, Series of 2000, An Ordinance Amending
Chapter 8.31 of the Avon Municipal Code Relating to Odor Pollution.
Mayor Yoder stated this is a public hearing.
Mr. Jim Collins, general counsel for the Eagle River Water and Sanitation District
approached the Council. Mr. Collins stated they have been trying to work with Avon to
control the odor issues. He felt'that good progress has , been made. He stated, for the
record, that the Water District would like the Council n_ot to pass this ordinance, but
would like to have an ordinance that does more for the town and for the subject of odor
control.
Mr. Collins referred to a Phase I Report of an Evaluation of the Design and Operation of
Odor Control Systems at the Avon and Edwards Wastewater Treatment Plants. (a copy of
the report in part is attached to these minutes). He stated that the consultant reviewed the
old ordinance and the proposed ordinance and made three points. 1.) The definition of
odor nuisance and verification of odor complaints are considered to be essential elements
of a reasonable odor ordinance that should be maintained as the Town now has some
standards. 2.) Most other similar ordinance, in the consultants opinion, nationwide
require more than three complaints over a longer period of time than did the older
ordinance. The old ordinance pushed the envelope but did provide for. 3.) Eliminating
the criteria as proposed is unreasonable and inconsistent with accepted practices. Finally,
in the judgement of the consultant, amending the ordinance represents a step backwards
in the development of a fair and equitable odor control ordinance for the Town.
Mr. Collins concluded by saying whatever the Council decides tonight, the Water District
will work with the Town to remove the odors from Avon.
Councilor McDevitt stated it is his hope that the Town never has to bring this ordinance
up. He stated that ordinances are not the way to stop the odor pollution. Even if the
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Town won every case it really wouldn't help us. He stated it is not the ordinance, it is
getting rid of the odor. That is the key issue. This is' simply a means of bringing it to the
public's attention. He stated that, hopefully, we are moving in the right direction and
won't have to worry about odors any longer.
Councilor Peter Buckley stated that he would like to reinforce Councilman McDevitt's
opinion. He stated that this was a campaign issue for him when he got elected. He said
that people came to him and considered the odor a problem, and that they still consider it
an ongoing problem. Mr. Buckley added that the Council does not have any direct
control over the Water District, but through the ordinances they can make it more forcible
for the Town. He stated that they would like to get the odor problem solved permanently
and quickly.
CouncilorBrown agreed as well. He stated that he lives in Sunridge Phase I and it is a
serious lifestyle issue when the odor occurs. Something must be done.
Mayor Yoder stated that this ordinance has been done in response to the constituents, not
to try to beat up the District.
There being no further comments, Mayor Yoder closed the public hearing.
Councilor Debbie Buckley motioned approval of Ordinance No. 00-14, Series of 2000 on
second reading. Councilor McDevitt seconded the motion.
Mayor Yoder asked for a roll call.
The motion carried unanimously.
Town Manager Report:
Town Manager Efting stated that there will be no work session next Tuesday.
Consent Agenda:
a.) Approval of the December 12, 2000 Council Meeting Minutes
b.) Resolution No. 01-01,_Series of 2001, A Resolution Approving the Final
Plat, A Resubdivision of Lot 22, Block 3, Wildridge; Town of Avon,
Eagle County, Colorado
c.) Resolution No. 01-02, Series of 2001; For a Resolution Declaring the
Intent of the Town of Avon, Colorado to Issue Multifamily Housing
Revenue Bonds to Provide Financing of a Multifamily Residential Facility
for Low and Middle Income Persons and Families; Prescribing Certain
Terms and Conditions of Such Bonds, and Containing Other Provisions
Relating to the Proposed Issuance of Such Bonds
Regular Council Meeting
January 9, 2001
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d.)
Resolution No. 01-03, Series of 2001, A Resolution Approving the Final
Plat, A Resubdivision of Lot 62, Block 4, Wildridge, Town of Avon,
Eagle County, Colorado ,
e.)
Intergovernmental Agreement' for 800 MHz Wide Area Smartzone
Trunking Radio Services
f.)
Eaglebend Drive Streetscape Improvements Design Services Agreement
g.)
Pentamation Software Mitigation Agreement
h.)
ASCAP Licensing Agreement
i.)
CASTA and Colorado Transit Coalition Agreement
Mayor Protem Reynolds motioned approval of the Consent Agenda. Councilor Debbie
Buckley seconded the.motion. The motion carried unanimously.
There being no further business to come before the Council, Councilor Debbie Buckley
motioned to adjourn the meeting. Councilor own seconded the motion. The motion
carried unanimously and the meeting adjourn at 5:35 PM.
RESPECTFULLY SUBMITTED:
ash, Town
APPROVED:
Michael Brown
Debbie Buckley
Peter Buckley
Rick Curly
Mac McDevitt
Buz Reynolds
Judy Yoder
Regular Council Meeting
January 9, 2001
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PHASE I REPORT
EVALUATION OF 'rHE RESIGN AND OPERATION
OF ODOR CONTROL SYSTEMS
AT THE
AVON AND EDWARDS
WASTEWATER TREATMENT PLAN'T'S
Prepared for:
EAGLE RIVER WATER AND SANITATION DISTRICT
846 Forest Road
Vail, CO 81657
Prepared by:
BOWKER & ASSOCIATES, INC.
CONSULTING ENGINEERS
477 Congress Street, Suite 1004
Portland, ME 04101
December, 2000
eceived Time-Jan. 5.- 5:21P
JAN-05-01 16:09 FROM:E.R.W.&S.D. ID:9704764089 PAGE 3/B
• Allowable exposure levels for workers can be over 10,000 tunes the concentration that
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can be detected by the human nose.
• Objectionable odors can cause symptoms such as nausea, headaches, itchy eyes,. etc,
However, these symptoms disappear when the odor is gone.
• Although residual ozone would be expected to be removed in downstream wet scrubbers,
no data are available on whether or not ozone is present in the exhausts from the chemical
scrubbers.
AVON ODOR CONTROL ORDINAIVCE
• The Avon ordinance existing as of December 15, 2000 is well constructed and contains
most of the elements considered to be important for a good odor regulation. The one
exception is the lack of any provision for the odor generator to _appeal the notice of
violation.
• The ordinance provides for. the Town to notify the potential odor generator of a possible
violation. but no time frame is specified. The District has maintains, that it had not been
' notified of odor complaints soon enough for them to take appropriate action or to
adequately assess operating conditions at the time of the complaint. More recently, the
Town bias improved its communications with the District. .
' The original ordinance prior to its amendment in July, 2000 had an exception for
conducting mainance or repair of odor control equipment as long as the Town
received prior notification. This was a reasonable provision in the judgment of Bowker
& Associates.
• The use of an ambient odor concentration for which an exceedence constitutes a violation
is fairly common in odor regulations and in not unreasonable. However, 5 D/T cannot be
' measured with a Scentometer. Fuathm, there is no specification of the number and
frequency of measurements by the inspector to document the ambient odor concentrati on.
• The complaint violation criteria, of three complaints in a six hour period is overly
f restrictive' when compared to complaint criteria in other ordinances (e.g., 10 validated
complaints in 9 months).
• The Avon ordinance states that "an odor shall be deemed to interfere with reasonable and
comfortable use and enjoyment of property if it is detectable by a trained observer
(emphasis added and which meets or exceeds any of the following. limits-' Based on
' review of police reports, the trained observer designated by the Town of Avon did not
consistently . verify the. odor complamts or document the odor levels using the
Scentometer that he was trained to use.
• The current Avon ordinance essentially staws that any odor release that results in odor
complaints constitutes a violation punishable by a $1,000 fare or 90 days in jail. In the
judgment of Bowker & Associates, this is not reasonable and does not recognize the
realities of operating and maintaining a complex wastewater treat rent facility that has
significant public benefit in protecting public health and improving waxer quality.
A second amendment of tine odor ordinance proposed in December, 2000 removes arty
definition of an odor nuisance and eliminates the regtrkeunent for verification of odor
complaints by the Town of Avon. These are essemial elements of an odor control
ordinance that should be manotaioied.
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definitions
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identification of jurisdiction
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complaint verification
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standards and limits
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description of notice of violation
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remedies.
appeal process
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exclusions
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limitations
Complaint verification is one of the more important elements of a good odor regulation.
Virtually all regulations reviewed by Bowker & Associates, Inc. included this provision.
A good odor regulation attempts to define a nuisance. In general, the regulations provide some
degree of acceptance of odor. That is, the public is. expected to accept some odor, noise, or air
pollution that is deemed non-hammful to the normal population and which does not unreasonably
interfere with their enjoyment of life and property. The occurrence of occasional odor does not
necessarily constitute a nuisance.
7.2 Avon Odor Ordnance
The original Avon ordinance is based on two violation criteria:
• ambient odor - 5 dilutions to 6resbold as measured by Bameby-Cheney Scentometer
• complaints - 3 or more calls within a six-hour period
The use of an odor "concentration" such as 5 dilutions to threshold (DM is not uncommon in
odor regulations. Five dilutions to threshold means that the odor must be diluted five times
before it is no longer detectable. Unfortunately, the Scentometer can only measure ranges of
® odor concentration. These ranges are as follows:
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<2 D/T
2-7 D/T
8-15 D/T
16-31 D/T
32-170 D/T
171-350 D/T
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Thus, the Scentometer cannot measure 5 D/T. Some states that specify use of the Scentometer
use 7 D/T as the violation threshold. The Scentometer is regarded by many as an unreliable tool
for measuring odor. It is difficult to use and the results are dependent on the sensitivity of the
user. Most regulations define the number of observations made by the inspector and the time
frame of the observations, e.g. "three samples or observations in one hour period separated by 15
minutes each. " The Avon ordinance does not address number of observations.
The complaint criteria in the Avon odor ordinance is "3 or more calls from individuals
representing separate properties within the Town within a six hour period relaxed to a single odor
description." A single odor episode apparently constitutes a violation. The ordinance does
indicate that "17he Town shall investigate all complaints to verify the source of the odor nuisance
and take appropriate corrective action."
Most complaint criteria specify a certain number of complaints, but over a much longer time
period. For example, the Minnesota draft odor rule states "at least 10 independent complaints---
and the total number of complaints include at least 5 different households (or places of
business)-all of the independent complaints were made within a 90 day period-at least 5 of
the independent complaints were conflimed (verified) through an inspection by a representative
or agent..." The Bay Area Management District in California uses the criteria of "10 validated
complaints within a 90-day period to trigger the ordinance." The violation criteria of. 3
complaints in a 6-hour period appears overly restrictive in that it essentially defines a nw- ance as
one odor event of unspecified duration.
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In terms of the structure of the ordinance, it contains most of the essential elements previously
discussed. The original 1997 ordinance had an "exceptions" clause that allowed for some odor
release caused by 1) unanticipated upset conditions or equipment breakdown provided that the
Town be verbally notified followed by a written plan to correct it, and 2) startup, shut-down,
cleaning or testing of machinery provided the Town be notified in writing 48 hours in advance
and that the Town approve the repair or maintenance activity in writing. These exceptions were
removed from the ordinance in June, 2000.
The June, 2000 amendment also requires the person responsible for the odors to take immediate
action to correct the problem, verbally notify the Town Manager within 8 hours as to why the
violation occurred, and submit a written statement to the Town within 3 days detailing the reason
I for the violation and a plan to ensure that the problem will not recur-
One element present in many regulations but missing in the Avon ordinance is the provision for
appeal by the odor generator. 1n the Avon ordinance, the decision on whether or not a nuisance
l condition has occurred and the source of that nuisance is left up to the odor inspector designated
by the Town of Avon. However, the only documentation of odors appears to be in police logs,
t and in the cases reviewed by Bowker & Associates, odors were not verified or measured by the
Town's trained odor inspector-
In December, 2000 the Avon Town Council passed the first reading of an amendment to the odor
ordinance that i) eliminated any definition of what constitutes an odor nuisance (odor
concentration by Scentometer, number of complaints in a specified time internal), and
2) removed the requirement that odor complaints be verified by the Town of Avon. The
proposed amendment was a direct result of the Town losing a case that it brought against the
Sanitation District because the court ruled that the Town failed to satisfy certain requirements of
the ordinance. If implemented, this latest amendment will remove two elements that are
considered essential to a good odor control ordinance. In the judgment of Bowker & Associates,
this represents a major step backwards in the development of a fair and equitable odor control
ordinance for the Town of Avon.
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Based on review of the Avon ordinance, the available literature on odor regulation, and selected
' examples of other odor ordinances, the following ctm,n,arir~c the conclusions of Bowker &
Associates:
' • the- Avon ordinance existing as of December 15, 2000 is well constructed and
contains most of the elements considered to be important for a good odor regulation.
' The one exception is the lack of any provision, for the odor generator to appeal the
notice of violation.
' • the ordinance provides for the Town to notify the potential odor generator of a
possible violation, but no time frame is specified. The District had maintained that it
' had not been notified of odor complaints or the presence of odors soon enough for
them to take appropriate action or to adequately assess operating conditions at the
' time of the complaint More recently, the Town has improved its communication
with the District when odors are detected.
' • the original ordinance had an exception for conducting maintenance or repair of odor
control equipment as long as the Town received prior notification. This was a
E reasonable provision in the judgment of Bowker & Associates.
• the use of an ambient odor concentration for which an exceedence constitutes a
violation is fairly common in odor regulations and in not unreasonable. However, 5
D/T cannot be measured with a Sceutometer_ Further, there is no specification of the
number and frequency of measurements by the inspector to document the ambient
' odor concentration.
• the complaint violation criteria of three complaints in a six-hour period is overly
' restrictive when compared to complaint criteria in other ordinances (e.g.,10 validated
complaints in 9 months).
the Avon ordinance states that "an odor shall be deemed to interfere with reasonable
and comfortable use and enjoyment of property if it is detectable by a trained
observer (emphasis added) and which meets or exceeds any of the following
limits..." Based on review of police reports, the trained observer designated by the
Town of Avon did not consistently verify the odor complaints or document the odor
levels using the Scentometer that he was trained to use.
E
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• the current Avon ordinance essentially states that any odor release that results in odor
complaints constitutes a violation punishable by a $1,000 fine or 90 days in jail. In
the judgment of Bowker & Associates, this is not reasonable and does not recognize
the realities of operating and maintaining a complex wastewater treatment facility that
has significant public benefit in protecting public health and improving water quality.
• A second amendment of the odor ordinance proposed in December, 2000 . that
removes any definition of an odor nuisance and eliminates the requirement for
verification of odor complaints by the Town of Avon is an inappropriate modification
of the existing ordinance.
• The removal of both the definition of odor nuisance and the requirement to verify
odor complaints eliminates two crucial elements of a good odor control ordinance. In
the Judgment of Bowker & Associates, this represents a step backward in the
development of a fair and equitable ordixmce.
I Received Time Jan. 5• 5:21PM 32