Ordinance 1197 - Air Pollution ControlORDINANCE NO. 1197
AN ORDINANCE ENACTING AN EMISSION CONTROL PLAN FOR THE CITY OF
KALISPELL TO MEET ENVIRONMENTAL PROTECTION AGENCY STANDARDS (PM-10
STANDARDS) BY REQUIRING DUST ABATEMENT AND CONTROL IN THE CITY OF
KALISPELL AND WITHIN AN AREA AND WITHIN THAT AREA OF LAND WITHIN
FLATHEAD COUNTY, SHOWN IN APPENDIXC "C" AND DESCRIBED IN APPENDIX
"D"; REPEALING ORDINANCE NO. 1139 AND RESOLUTION NO. 3908,
PRESCRIBING A PENALTY; AND DECLARING AN EFFECTIVE DATE.
WHEREAS, on July 1, 1987 the Environmental Protection Agency
promulgated new ambient air quality standards for particulate
matter with an aerodynamic diameter of 10 microns or less (PM-10),
and
WHEREAS, on August 7, 1987 the Environmental Protection Agency
designated Kalispell as a Group I area for the PM-10 standards, and
WHEREAS, the Environmental Protection Agency has concluded that
fine particulate (PM-10) presents the largest danger to human
health because fine particulates can penetrate deeply into oxygen
exchanging areas of the lungs and are more difficult for the human
body to expel, and
WHEREAS, the City Council of the City of Kalispell considers good
air quality to be a valuable resource, important to the public
health, and essential to the economic well-being of the valley.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
KALISPELL, AS FOLLOWS:
SECTION I. SHORT TITLE
These regulations shall be known and may be cited as the Air
Pollution Control Program.
SECTION II. DECLARATION OF POLICY AND PURPOSE
It is hereby declared to be the public policy of the City of
Kalispell, and purpose of this program, to preserve, protect,
improve, achieve and maintain such levels of air quality of
the City of Kalispell, Flathead County and the State of
Montana, as will protect human health and safety, and to the
greatest degree practicable, prevent injury to plant and
animal life and property, foster the comfort and convenience
of the inhabitants of the City of Kalispell, facilitate the
enjoyment of the natural attractions of the City of Kalispell,
and promote the economic and social development of the City of
Kalispell. To this end, it is the purpose of this program to
require the use of all available practicable methods to
reduce, prevent and control air pollution in the City of
Kalispell. To prevent, abate or control air pollution in the
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City of Kalispell, the regulations contained herein are hereby
established for the City of Kalispell by the City Council.
SECTION III. AUTHORITIES FOR PROGRAM
1) The authority to enact this Program and the regulations
contained herein is provided in Section 75-2-301, et seq. MCA.
2) Unless otherwise provided, the provisions of this program
shall not apply to air contaminant sources or classes of air
contaminant sources and operations over which exclusive
jurisdiction and control is retained by the Montana Board of
Health and Environmental Sciences under provisions of the
Montana Clean Air Act or the finds and determinations of the
Montana Board of Health and Environmental Sciences at the time
of approval of this program.
SECTION IV. ADMINISTRATION
There is created an Air Pollution Control Board, which shall
be responsible for the administration of this Program. The
Flathead City -County Board of Health shall be the Air
Pollution Control Board.
SECTION V. CONTROL BOARD, MEETINGS -DUTIES -POWERS
1) The Chairperson of the Board of Health or their designee
shall be the Chairperson of the Control Board.
2) The Control Board shall hold meetings as necessary and
keep minutes of its proceedings. Special meetings may be
called by the Chairperson of the Control Board or upon request
of two members of the Control Board.
3) The Control Board may:
a) Recommend to the City Council of the City of
Kalispell and, Board of Commissioners of Flathead County
the adoption, the amendment, or the repeal of any
regulations necessary to implement the provisions of this
Program.
b) Hold hearings related to any aspect of the Program,
and compel the attendance of witnesses and the production
of evidence at such hearings.
c) Issue orders necessary to effectuate the purpose of
this Program, and enforce them by appropriate judicial or
administrative proceedings.
d) Instruct the Department to measure pollution levels
and take samples of air pollution at designated sites.
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e) Instruct the Department to conduct surveys,
investigations and research related to air contamination
in the City of Kalispell.
f) Instruct the Department to collect and disseminate
information and conduct educational and training programs
related to prevention of air pollution.
g) Adopt a schedule of fees required for permits and
administrative penalties under this Program.
h) Hear and decide appeals from decisions of the
Department issuing, denying, suspending, revoking
amending or modifying any permits required by this
program.
i ) Establish policy to be followed by the Department in
implementing this Program.
j) Perform any and all acts which may be necessary for
the successful implementation of this Program.
SECTION VI. AIR QUALITY STAFF
There shall be an air quality staff within the Flathead City -
County Health Department. This staff shall consist of such
employees as deemed necessary by the Control Board.
1) The Department shall employ personnel who shall possess
such training and qualifications as are commensurate with the
financial budget and the technical and administrative
requirements of the Control Board.
2) The Department's Air Quality Staff, under the direction
of the Control Officer or their designated representative
shall:
a) issue, deny, modify, revoke, and suspend permits
provided for or required under this Program;
b) issue written notices of violation, orders to take
corrective action, and citations, and by appropriate
administrative and judicial proceedings, enforce the
provisions of this Program;
c) measure pollution levels and take samples or air
pollution at designated sites in the City of Kalispell;
conduct investigative surveys, and research related to
air contaminants in the City of Kalispell; and collect
and disseminate information and conduct educational and
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training programs related to the prevention of air
pollution;
d) accept, receive and administer grants or other funds
from public or private agencies for the purpose of
carrying out any provisions of the Program;
e) provide necessary scientific, technical,
administrative, and operational services to the Control
Board;
f) establish an inventory of sources of air pollution
under the Program's jurisdiction within the County;
g) perform such other acts and functions designated by
the Control Board for the successful implementation of
this Program;
h) investigate complaints; and
i) administer this Program.
SECTION VII. INSPECTIONS
1) Any duly authorized officer, employee, or representative
of the Control Board or the Department, upon the showing of
identifying credentials, may enter and inspect any property
except for a private residence, at any reasonable time, for
investigating or testing any actual or suspected source of
air pollution or ascertaining the state of compliance with
this Program and regulations in force pursuant thereto.
2) No person shall refuse entry or access to any authorized
member or representative of the Control Board or Department,
who requests entry for the purposes mentioned in (1) above, or
obstruct, hamper, or interfere in any manner with any such
inspection.
SECTION VIII. AIR POLLUTION CONTROL PLAN
DEFINITIONS:
1) "Air Contaminant" means dust, ash, fumes, gas, vapor,
mist, smoke, odor or any particulate matter or
combination thereof present in the outdoor atmosphere.
2) "Air Pollution" means the presence in the outdoor
atmosphere of one or more air contaminants, or any
combination thereof in sufficient quantities, and of such
character and duration as is or is likely to be injurious
to the health or welfare of human, plant, animal life, or
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property, or which will unreasonably interfere with the
enjoyment of life or property or the conduct of business.
3)
"Kalispell Air Pollution Control District" means that
area of land within Flathead County, shown in Appendix
"C" and described in Appendix "D", attached hereto and
thereby made a part hereof.
4)
"Ambient Air" means that portion of the atmosphere,
external to buildings, to which the general public has
access.
5)
"Animal Matter" means any product or derivative of animal
life.
6)
"Board of Health" means the Flathead City -County Board of
Health.
7)
"Chairperson" means the chairperson of Board of Health
and the Air Pollution Control Board.
8)
"Contingency Plan" means specific measures which would be
implemented if a non -attainment areas` State
Implementation Plan fails to timely attain National
Ambient Air Quality Standard (NAAQS) or make reasonable
progress.
9)
"Control Board" means the Flathead City -County Board of
Health.
10)
"Control Officers" means the Health Officer for the
Flathead City -County Health Department, or any employee
of the Department designated by the Health Officer.
11)
"Department" means the Flathead City -County Health
Department.
12)
"Emission" means a release of an air contaminant into the
outdoor atmosphere.
13)
"EPA" means the United States Environmental Protection
Agency.
14)
"Kalispell Air Pollution Control District" means a
special air quality district within Flathead County
defined as the area within the City limits of Kalispell
and within an area commensurate with the limits of the
Kalispell City -County Master Plan.
15)
"Odor" means that property of an emission which
stimulates the sense of smell.
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16) "Opacity" means the degree, expressed in percent, to
which emissions reduce the transmission of light and
obscure the view of an object in the background. Where
the presence of uncombined water is the only reason for
failure of an emission to meet the applicable opacity
limitation contained in this chapter, that limitation
shall not apply. For purposes of this chapter, opacity
determination shall follow all requirements, procedures,
specifications, and guidelines contained in 40 CFR Part
60, Appendix A, Method 9 (July 1, 1987 ed.) or by in -
stack transmissometer which complies with all
requirements, specifications, and guidelines contained in
40 CFR Part 60, Appendix B, performance specification 1
(July 1, 1987 ed.).
17) "Open Burning" means combustion of any material directly
in the open air without a receptacle or in a receptacle
other than a furnace, multiple chambered incinerator, or
wood waste burner, with the exception of small
recreational fires, construction site heating devices
used to warm workers, or safety flares used to dispose of
dangerous gases at refineries, gas sweetening plants, or
oil and gas well.
18) "Particulate Matter" means any material, except water in
uncombined form, that is or has been airborne and exists
as a liquid or a solid at standard conditions.
19) "Person" means any individual, partnership, firm,
association, municipality, public or private corporation,
subdivision or agency of the state, trust, estate, or any
other legal authority.
20) 11PM--10" means particulate matter with an aerodynamic
diameter of less than or equal to a nominal 10
micrometers as measured by a reference method based on 40
CFR Part 50, Appendix J, (52 FR 24664, July 1, 1987) and
designated in accordance with 40 CFR Part 53 (54 FR
24727, July 1, 1987), or by an equivalent method
designated in accordance with 40 CFR Part 53 (52 FR
24727, July 1, 1987).
21) "Premises" means any property, piece of land, real
estate, or building.
22) "Public Nuisance" means any condition which endangers
health or safety, is offensive to the senses or obstructs
the free use of property so as to interfere with the
comfortable enjoyment of life or property by an entire
community or neighborhood or by any considerable number
of persons.
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23) "Salvage Operation" means any operation conducted in
whole or in part for the salvaging or reclaiming of any
product or material.
24) "Source" means any property, real or personal, or person
contributing to air pollution.
25) "State Implementation Plan or SIP" means a state-wide
emission control plan required by the Federal Clean Air
Act.
26) "Stack or Chimney" means any flue, conduit, or duct
arranged to conduct emissions.
27) "Trade Waste" means solid, liquid, or gaseous material
resulting from construction or the operation of any
business, trade, industry, or demolition operation
including but not limited to wood, wood products,
plastic, cartons, grease, oil, chemicals, and cinders.
26) "Wood -Waste Burners": devices commonly called tepee
burners, silos, truncated cones, wigwam burners, and
other such burners commonly used by the wood products
industry for the disposal or burning of wood waste.
SECTION IX. OPEN BURNING
A) DEFINITIONS
1) "Best Available Control Technology" (BACT) means
those techniques and methods of control emissions
of pollutants from an existing or proposed open
burning source which limit those emissions to the
maximum degree to which the department determines,
on a case -by -case basis, is achievable for that
source, taking into consideration impacts on energy
use, the environment, and the economy, and other
costs, including the cost to the source. Such
techniques and methods may include the following:
scheduling of burning during periods and seasons of
good ventilation, applying dispersion forecasts,
utilizing predictive modeling results performed by
and available from the department to minimize smoke
impacts, limiting the amount of burning to be
performed during any one period of time, using
ignition and burning techniques which minimize
smoke production, selecting fuel preparation
methods that will minimize dirt and moisture
content, promoting fuel configurations which create
an adequate air to fuel ratio, prioritizing burns
as to air quality impact and assigning control
techniques accordingly, and promoting alternative
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treatments and uses of material to be burned. In
the case of essential agricultural open burning
during September and October, or prescribed
wildland open burning during December, January, and
February, BACT includes burning during the times
specified by the department.
2) "Essential Agricultural Open Burning" means any
open burning conducted on a farm or ranch for the
purpose of:
a) Eliminating excess vegetative matter from an
irrigation ditch where no reasonable alternative
method of disposal is available.
b) Eliminating excess vegetative matter from
cultivated fields where no reasonable alternative
method of disposal is available.
c) Improving range conditions when no reasonable
alternative method is available.
d) Improving wildlife habitat when no reasonable
alternative is available.
3) "Major Open Burning Source" means any person,
agency, institution, business, or industry
conducting any open burning within Kalispell Air
Pollution Control District which on a District wide
basis will burn more than 100 acres of forestry
slash or emit more than 500 tons per calendar year
of carbon monoxide or 50 tons per calendar year of
any other pollutant regulated by Chapter 16 of the
Administrative Rules of Montana.
4) "Minor Open Burning Source" means any person,
agency, institution, business or industry
conducting open burning which is not a major open
burning source.
B) MATERIAL PROHIBITED
1) 40 CFR Part 261, (identifying and defining
hazardous wastes) is hereby adopted and
incorporated.
2) The following material may not be disposed of by
open burning:
a) Any wastes which is moved from the premises
where it was generated, including that moved to
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solid waste disposal site, except as provided for
in SECTION G and SECTION H.
b) Food wastes.
c) Styrofoam and other plastics.
d) Wastes generating noxious odors.
e) Wood and wood by --products other than trade
wastes unless a public or private garbage hauler,
or rural container system is unavailable.
f) Poultry litter.
g) Animal droppings.
h) Dead animals or dead animal parts.
i) Tires.
j) Rubber materials.
k) Asphalt shingles, except as provided in
SECTION F.
1) Tar paper, except as provided in SECTION F.
m) Automobile bodies and interiors.
n) Insulated wire, except as provided in SECTION
F.
o) Oil and petroleum products, except as provided
in SECTION F.
p) Treated lumber and timbers.
q) pathogenic wastes.
r) Hazardous wastes as defined by 40 CFR Part
261.
s) Trades wastes, except as provided in SECTION G
and SECTION H.
t) Any materials from salvage operation.
u) Chemicals.
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C) MINOR OPEN BURNING SOURCE REQUIREMENTS
A minor open burning source need not obtain an air
quality open burning permit, but must:
1) Comply with all rules within this SECTION and burn
only clean, dry material.
2) Comply with restrictions and times specified by the
Montana State Airshed Group monitoring unit for
major open burning sources or the department when
the Montana State Airshed Group monitoring is not
in operation.
3) Comply with any requirements or regulations
relating to open burning established by any public
agency responsible for protecting public health
and welfare, or which is responsible for fire
prevention or control.
4) If it desires to conduct essential agricultural
open burning during September through November or
prescribed wildland open burning during September,
through November, adhere to the time periods set by
the Department.
5) If it desires to conduct prescribed wildland open
burning during December through February, adhere to
the time period set by the Department.
D) MAJOR OPEN BURNING SOURCE REQUIREMENTS
Major open burning sources need not apply for and obtain
an air quality open burning permit from the department if
the source has obtained a permit from the Montana
Department of Health and Environmental Sciences (DHES)
pursuant to ARM 16.8.1304 (1989) and where no other
provisions of these regulations is violated. A permit
issued by DHES to burn will be valid in Kalispell Air
Pollution Control District only when the Montana State
Airshed Group monitoring unit is in operation. Major
open burning sources issued a permit pursuant to ARM
16.8.1304 (1989) shall be required to obtain a permit
from the department when the Montana State Airshed Group
monitoring unit is not in operation and adhere to the
conditions of the permit.
E) SPECIAL OPEN BURNING PERIODS
1) Prescribed wildland open burning, open burning
performed to train fire fighters under SECTION F,
open burning authorized under the emergency open
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burning permit provision set forth in SECTION I,
and for the purpose of thawing frozen ground to
allow excavation of utilities may be conducted
during the entire year.
2) Open burning other than those categories listed in
(1), above, may be conducted only during the months
of March through November.
F) FIRE FIGHTER TRAINING
Asphalt shingles, tar paper, or insulated wire which is
part of a building, and oil or petroleum products may be
burned in the open for purposes of training fire
fighters, if the fire is restricted to a building or
structure or a permanent training facility, in a site
other than a solid waste disposal site, and if the
material to be burned is not allowed to smolder after the
training session has terminated, and not public nuisance
is created. A permit must be obtained from the
department prior to each burn unless the training occurs
at a permanent training facility.
G) OPEN BURNING DISPOSAL OF CHRISTMAS TREE WASTES
1) The department may issue an open burning permit to
dispose of waste accumulated from the normal
operation of Christmas tree farms, if:
a) The wastes are generated on the owner or
operators property; and
b) Open burning constitutes the BACT; and
c) Emissions from such open burning would not
endanger public health and welfare or cause or
contribute to a violation of any Montana or Federal
ambient air quality standard.
2) The department may place any reasonable
requirements in the open burning permit that it
determines will reduce emissions of air pollutants
or will minimize the impact of said emissions, and
the recipient of such a permit must adhere to those
conditions. In the case of a permit granted
pursuant to (1), above:
a) BACT for the period covered by the permit
shall be set out within the conditions of the
permit; and
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b) with the provisions that the source may be
required, prior to each burn, to receive approval
from the department of the date and time of the
proposed burn to ensure that good ventilation
exists and to assign priorities if necessary.
Approval will be obtained by calling the
department.
3) The applicant for this type of permit shall notify
the public of its application by posting a public
notice provided by the department on the property
where the open burn is to occur. Posting shall be
made near the closest public right-of-way to the
property and be clearly visible. The posted sign
is to convey the information supplied on the
application. The notice shall remain on the
property in a visible condition for a period of 15
days prior to proposed permit issuance. The notice
shall include a statement that public comments may
be submitted to the department during the time
period specified on the public notice.
4) The department's decision to approve or deny any
application for this type of open burning permit
shall be posted at the department for 3 working
days. The department's decision may be reviewed by
the Board in accordance with the following
provisions:
a) A person who has submitted written comments
and who is adversely affected by the department's
final decision may request a hearing before the
Control Board within 3 days after the department's
final decision. The request must be made in
writing. The request for hearing must state
specific grounds why the permit should not be
issued or why it should be issued with particular
conditions and why the complainant is adversely
affected. The Control Officer shall determine,
within ten (10) days, if a hearing need be held by
the Control Board. If the Control Officer
determines no hearing need be held, the decision of
the department is affirmed, and said Officer shall
notify the complainant of the action. The Control
Board may conduct a hearing within 30 days after
receipt of such request upon due notice to the
applicant and to the public. Within 10 days
following the hearing the Control Board shall
instruct the department to issue, issue with
conditions, or deny the open burning permit.
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b) The filing of a request for a hearing
postpones the effective date of the department's
decision until the conclusion of the hearing and
issuance of the final decision by the Board.
H) CONDITIONAL AIR QUALITY OPEN BURNING PERMITS
1) The department may issue a conditional air quality
open burning permit for disposal of:
a) Wood and wood by-products trade wastes by any
business, trade, industry or demolition project if
it is determined that:
i) Open burning constitutes the BACT; and
ii) Emissions from such open burning would
not endanger public health and welfare or
cause a violation of any State or Federal
ambient air quality standard.
b) Untreated wood waste at a licensed landfill
site if:
i) Alternative methods of disposal would
result in extreme economic hardship to the
solid waste management system owner or
operator; and
ii) Emissions from such air quality open
burning would not endanger public health and
welfare or cause a violation of State or
Federal ambient air quality standard; and
iii) Prior to issuance of a conditional air
quality open burning permit, the wood waste
pile is inspected by the department and no
prohibited materials listed in ARM 16.8.1302,
other than wood wastes, are present.
2) A conditional air quality open burning permit
issued under this rule is valid for the following
periods:
a) Wood and wood by-product trade waste - one
calendar year.
b) Untreated wood wastes at licensed landfill
sites - single burn. A new permit must be obtained
for each burn.
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3) The department may place any reasonable
requirements in a conditional air quality open
burning permit that it determines will reduce
emissions of air pollutants or will minimize the
impact of said emissions, and the recipient of such
a permit must adhere to those conditions. In the
case of a permit granted pursuant to (1) (a),
above, BACT for the year covered by the permit will
be set out within the conditions of the permit,
with the provision that the source may be required,
prior to each burn, to receive approval from the
department of the date of the proposed burn to
ensure that good ventilation exists and to assign
priorities if necessary. Approval may be obtained
by calling the department.
4) An application for a conditional air quality open
burning permit must be made on a form provided by
the department. The applicant must provide
adequate information to enable the department to
determine that the application satisfies the
requirements for a conditional air quality open
burning permit contained in this rule. Proof of
publication of public notice, as required in (5),
below, shall be submitted as part of the
application.
5) The applicant for a conditional air quality open
burning permit shall notify the public of its
application for a permit by means of legal
publication in a newspaper of general circulation
in the area affect by the application. The notice
shall be made not sooner than 10 days prior to
submittal of an application and not later than 10
days after submittal of an application. Form of
the notice shall be provided by the department and
shall include a statement that public comments may
be submitted to the department concerning the
application within 20 days after publication of the
notice or filing of the application, which ever is
later.
6) A conditional air quality open burning permit
granted pursuant to (1) (a) above is a temporary
measure to allow time for an entity generating the
trade waste to develop alternative means of
disposal.
7) The department's decision to approve or deny an
application for a conditional air quality open
burning permit shall be posted at the department
for 3 working days. The department's decision may
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be reviewed by the Board in accordance with the
following provisions:
a) A person who has submitted written comments
and who is adversely affected by the department's
final decision may request a hearing before the
Control Board within 3 days after the department's
final decision. The request must be made in
writing. The request for hearing must state
specific grounds why the permit should not be
issued or why it should be issued with particular
conditions and why the complainant is adversely
affected. The Control Officer shall determine,
within ten (10) days, if a hearing need be held by
the Control Board. If the Control Officer
determines no hearing need be held, the decision of
the department is affirmed, and said Officer shall
notify the complainant of the action. The Control
Board may conduct a hearing within 30 days after
receipt of such request upon due notice to the
applicant and to the public. within 10 days
following the hearing the Control Board shall
instruct the department to issue, issue with
conditions, or deny the conditional air quality
open burning permit.
b) The filing of a request for a hearing
postpones the effective date of the department's
decision until the conclusion of the hearing and
the issuance of the final decision by the Board.
I) EMERGENCY OPEN BURNING PERMITS
1) The department may issue an emergency air quality
open burning permit to allow the burning of a
substance not otherwise approved for burning under
this SECTION if the applicant demonstrates that the
substance poses an immediate threat to public
health, safety, plant or animal life, and that no
alternative method of disposal is reasonably
available.
2) Application for such a permit may be made to the
department by telephone or in writing and must
include:
a) Evidence why alternative methods of disposal
of the substance are not reasonably available.
b) Facts establishing that the substance to be
burned poses a immediate threat to human health and
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safety or plant or animal life if not disposed of
by burning.
c) The legal description or address of the site
where the burn will occur.
d) The amount of the material to be burned.
e) The date and time of the proposed burn.
J) PERMIT FEES
1) The Control Board shall establish a fee schedule
for the issuance of air quality open burning
permits and the inspection of open burning sites.
Such fees will be based on the costs associated
with conducting the service.
2) All fees collected shall be deposited in the
Flathead City -County Health Fund.
SECTION X. SOLID FUEL BURNING DEVISES
A) CURTAILMENT PROGRAM
1) For purpose of this rule, the following definition
applies:
a) "Air Pollution Alert" means a period when the
PM-10 levels exceed or are expected to exceed 100
micrograms per cubic meter as measured with tapered
element oscillating microbalance (TEOM) or other
department approved monitoring device.
2) Within the Control District, a voluntary
curtailment program for solid fuel burning devices
will be initiated by January 1, 1992.
3) It is the department's duty , when declaring an Air
Pollution Alert to take reasonable steps to inform
the public.
B) PROHIBITED MATERIALS
No person may cause or authorize the use of the following
materials to be combusted in any residential solid --fuel
burning device such as a wood, coal, pellet stove or
fireplace:
1) Food wastes.
2)
Styrofoam
and other plastics.
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3) Wastes generating noxious odors.
4) Poultry litter.
5) Animal droppings.
6) Dead animals or animal parts.
7) Tires.
8) Asphalt shingles.
9) Tarpaper.
10) Insulated wire.
11) Treated lumber or timbers including railroad ties.
12) Pathogenic wastes.
13) Colored newspaper or magazine print.
14) Hazardous wastes as defined by 40 CFR Part 261.
15) Chemicals.
SECTION XI. KALISPELL AIR POLLUTION CONTROL DISTRICT
It is the intent of this rule to establish a control plan
which will provide protection to the residents of the City of
Kalispell from air pollution levels in excess of the State and
Federal ambient air quality PM-10 standards. The provisions
of Sections XI through XVIII apply only to the Kalispell Air
Pollution Control District.
SECTION XII. MATERIAL TO BE USED ON ROADS AND PARKING LOTS -
STANDARDS
A) DEFINITIONS
1) "Parking Lot" means a parcel of land located off of
the public right-of-way not less than 5000 square
feet in size which is primarily used for the
temporary storage of motor vehicles.
2) "Road" means any road, street or alley which is
greater than 50 feet in length, and has a projected
traffic volume greater than 50 vehicles per day.
B) Within the Kalispell Air Pollution District, no person
shall place any sanding or chip seal material upon any
road or parking lot which has a durability, as defined by
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the Montana Modified L.A. Abrasion test of greater than
or equal to 7, or other testing methods deemed suitable
by the Control Board, and has a content of material
smaller than 200 mesh, as determined by standard wet
sieving methods, which exceeds 3.0% oven dry weight.
C) It shall be the responsibility of the person applying the
sanding or chip seal material to test the material and
provide the department representative data demonstrating
that the material meets the specifications listed in (B),
above, prior to application. Such data shall be obtained
by gathering a representative sample from the stockpile
or the material as it is produced and analyzing the
material in accordance with the methods identified in
(B), above.
SECTION XIII. CONSTRUCTION AND DEMOLITION ACTIVITIES
A) DEFINITIONS
1} "Construction/Demolition Activity" means any on -
site mechanical activity preparatory to or related
to building, alteration, maintenance, or
demolition of an improvement on real property
including, but not limited to: grading, excavation,
filling, transport and mixing of material, loading,
crushing, cutting, planing, shaping, breaking,
sandblasting or spraying.
2) "Exempt Activity" means any construction/demolition
activity consisting of:
a) A building or improvement with a combined
floor space of less than 4000 square feet.
b) A disturbed surface area of less than 4000
square feet.
3) "Reasonably Available Control Technology (RACT)"
means techniques used to prevent the emission
and/or the airborne transport of dust and dirt from
a construction/demolition site including:
application of water or other liquid, limiting
access to the site, securing loads, enclosing,
shrouding, compacting, stabilizing, planting,
cleaning vehicles as they leave the site,
scheduling projects of optimum meteorological
conditions, or other such measures the department
may specify to accomplish satisfactory results.
B) No person shall engage in any construction/demolition
activity, except for exempt activities, without first
ORDINANCE NO. 1197 18
applying for and obtaining a permit, which describes the
project and contains a dust control plan which
constitutes RACT, from the department.
C) An application for a construction/demolition permit must
be made on a form provided by the department. The
applicant must provide adequate information to enable the
department to determine that the application satisfies
the requirements for a construction/demolition permit
contained in this SECTION. Proof of publication of
public notice, as required in (D) of this SECTION, shall
be submitted as part of any application.
D) The applicant for a construction/demolition permit shall
notify the public of its application for a permit by
means of legal publication in a newspaper of general
circulation in the area affected by the application. The
notice shall be made not sooner than 10 days prior to
submittal of an application and not later than 10 days
after submittal of an application. Form of the notice
shall include a statement that public comments may be
submitted to the department concerning the application
within 20 days after publication of the notice whichever
is later. It is the responsibility of the applicant to
pay all costs associated with publication.
E) The department's decision to approve or deny an
application for a construction/demolition permit may be
reviewed by the Board in accordance with the following
provisions:
1) A person who has submitted written comments and who
is adversely affected by the department's final
decision may request a hearing before the Control
Board within 3 days after the department's final
decision. The request for hearing must state
specific grounds why the permit should not be
issued or why it should be issued with particular
conditions and why the complainant is adversely
affected. The Control Officer shall determine,
within ten (10) days, if a hearing need be held by
the Control Board. If the Control Officer
determines not hearing need be held, the decision
of the department is affirmed, and said Officer
shall notify the complainant of the action. The
Control Board may conduct a hearing within 30 days
after receipt of such request upon due notice to
the applicant and to the public. Within 10 days
following the hearing the Control Board shall
instruct the department to issue, issue with
conditions or deny the construction/demolition
permit.
ORDINANCE NO. 1197 19
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2) The filing of a request for a hearing postpones the
effective date of the department's decision until
the conclusion of the hearing and the issuance of
the final decision by the Board.
F) The department shall deny an application for a
construction/demolition permit unless:
1) in the opinion of the department, the RACT is
employed, and
2) prior written approval had been obtained from the
Kalispell Building Department.
SECTION XIY. PAVEMENT OF ROADS REQUIRED
A) DEFINITIONS
1) "Compliance Plan" means a plan and schedule of
implementation to improve an unpaved road by
routine application of dust suppressants, or other
effective measures to control fugitive dust until
the road is paved. This is an interim measure
until paving can occur.
2) "Existing street or road" means any street, road,
or alley which is greater than 50 feet in length,
has an average traffic volume greater than 200
vehicles per day, and was in existence on January
1, 1990.
3) "New street or road" means any street, road, or
alley which is greater than 50 feet in length, has
a projected average traffic volume greater than 50
vehicles per day, and on which construction
commenced or will commence after January 1, 1990.
B) Within the Kalispell Control District, no person shall
allow the construction of a new street or road unless it
is paved.
C) Within the Kalispell Control District, no person shall
allow the operation, use, or maintenance of any unpaved
existing street or road unless a compliance plan has been
filed with and approved by the department. The
compliance plan must be filed with the Department by
January 1, 1992 and implemented by September 30, 1992.
the department may approve a compliance plan as submitted
or amend the plan to include any additional reasonable
dust control measures.
SECTION XV. PAVEMENT OF PARKING LOTS REQUIRED
ORDINANCE NO. 1197 20
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A) DEFINITIONS
1) "Parking Lot" means a parcel of land located off
the public right -of --way not less than 5000 square
feet in size which is primarily used for the
temporary storage of motor vehicles.
2) "Existing Parking Lot" means any parking lot which
was in existence and use on January 1, 1990.
3) "New Parking Lot" means any parking lot which
construction commenced after January 1, 1990.
4) "Compliance Plan" means a plan and schedule of
implementation to improve an unpaved parking lot by
routine application of dust suppressant or other
effective measures to control fugitive dust until
paving can occur.
B) Within the Kalispell Air Pollution Control District, no
person shall construct any new parking lot which has a
parking area greater than 5000 square feet or private
drive through business lane, or a parking capacity
greater than 15 vehicles or a traffic volume of more than
50 vehicles per day, unless the parking lot is paved.
C) Within the Kalispell Control District, no person shall
allow the operation, use, or maintenance of any unpaved
existing lot which has a parking area greater than 5000
square feet or private drive through business lane, or a
parking capacity of greater than 15 vehicles or a traffic
volume of more than 50 vehicles per day unless a
compliance plan has been filed with and approved by the
department. A compliance plan must be filed with the
department within 60 days of notification that paving is
required. The department may approve the compliance plan
as submitted or amend the plan to include any additional
reasonable control measure.
SECTION XVI. STREET SWEEPING AND FLUSHING
A) DEFINITIONS
1) "Prioritized Street Sweeping and Flushing" means a
schedule of street sweeping and/or flushing which
cleans streets with the highest traffic volumes
first and proceeds in descending order of traffic
volume to streets with the lowest traffic volume.
When all ice -free streets have been cleaned, the
cycle is immediately repeated. In the event that
streets become iced and sanding material is re -
ORDINANCE NO. 1197 21
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applied, the process will begin with the highest
traffic volume streets.
2) "Reasonable available control technology" means:
a) During Winter months, prioritizing street
sweeping and flushing shall commence on the first
working day after any streets become either
temporarily or permanently ice -free and
temperatures are above 32 degrees Fahrenheit, and
b) During the summer months, streets sweeping and
/or flushing shall be accomplished on an as -needed
basis with priority given to streets with the
highest traffic volume.
3) "Summer Months" means the months of May, June,
July, August, September and October.
4) "Winter Month" means the months of November,
December, January, February, March and April.
B) Within the Kalispell Air Pollution Control District, no
person shall allow the operation, use, or maintenance of
any paved street unless RACT is utilized.
SECTION XVII. CLEARING OF LAND GREATER THAN 1/4 ACRE IN SIZE
A) DEFINITIONS
1} "Reasonable Available Control Technology (RACT)"
means techniques used to prevent the emission
and/or airborne transport of dust and dirt from any
disturbed or exposed land including: planting
vegetative cover, providing synthetic cover, water
and/or chemical stabilization, covering with coarse
aggregate, installing wind breaks,or other
equivalent method or technique approved by the
department.
B) Within the Kalispell Air Pollution Control District, the
owner or operator of any land greater than 1/4 acre in
size that has been cleared or excavated, with the
exception of fire breaks approved by the Kalispell Fire
Department and the City Council, or land cleared solely
for agricultural purposes, shall employ RACT to control
dust emissions within 30 days after notification by the
department that visible emissions were observed leaving
the premises or that the premises have remained in an
uncontrolled state for over 90 days.
ORDINANCE NO. 1197 22
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C) If it is determined that any land cleared poses an
immediate threat to human health and welfare, the
department may order the owner or operator to immediately
employ RACT to control the dust emissions.
SECTION XVIII. CONTINGENCY PLAN
A) DEFINITIONS
1) "Extraordinary Circumstances" means a specific
period of time when the thickness of ice on a road
or the air temperature or when the slope of a road
would preclude the effective use of liquid de-icer.
2) "Liquid De-icer" means a departmentally approved
agent which lowers the melting point of ice.
3) "Priority Route" means a roadway which must remain
in a safe driving condition for emergency or safety
purposes. Priority routes will be designated by
the appropriate governing body for that roadway to
the Control Board.
B) Within 60 days of notification by the EPA that the SIP
for the Kalispell nonattainment area failed to timely
attain the PM-10 National Ambient Air Quality Standards
or make reasonable further progress the following will
occur:
1) Within the Kalispell Air Pollution Control
District, only liquid de-icer shall be placed on
any road or parking lot with the exception of
priority routes with extraordinary circumstances
existing. During extraordinary events, priority
routes must use sanding material which has a
durability, as defined by the Montana Modified L.A.
Abrasion test of less than or equal to 7, or other
testing methods deemed suitable by the Control
Board, and has a content of material less than 200
mesh, as determined by standard wet sieving
methods, which is less than 3.0% oven dry weight.
2) The person applying the liquid de-icer must obtain
prior approval from the department for the
particular de-icer.
SECTION XIX. ENFORCEMENT, JUDICIAL REVIEW, AND HEARINGS
A) DEFINITIONS
Whenever the Department determines that there are
reasonable grounds to believe that a violation of any
ORDINANCE NO. 1197 23
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provision of this program or condition or limitation
imposed by a permit issued by the Department has
occurred, the Department may issue a written notice to be
served personally or by registered or certified mail on
the alleged violator or their agent. This notice shall
specify the provision of the program or permit condition
alleged to have been violated and the facts alleged to
constitute the violation. The notice may include an
order to take necessary corrective action within a
reasonable period of time specified in the order. The
order becomes final unless, within 30 days after the
notice and order is received, the person named requests
in writing a hearing before the Control Board. Upon
receipt of the request, the Board shall schedule a
hearing to be held at the next regular meeting. Each
hearing shall be tape recorded and the record maintained
for a period not to exceed 5 years.
B) If, after a hearing held under Section (1) of this
Chapter, the Control Board finds that the violations have
occurred, it shall either affirm or modify the previously
issued order or issue an appropriate order for the
prevention, abatement, or control of the emissions
involved, or for the taking of other corrective action it
considers appropriate. An order issued as part of a
notice or after a hearing may prescribe the date by which
the violation shall cease and may prescribe time limits
for particular action in preventing, abating, or
controlling the emissions. If, after hearing on a order
contained in a notice, the Control Board finds that no
violation has occurred, it shall rescind the order.
C) In connection with a hearing held under this Chapter, the
control board may, and on application by a party, shall
compel the attendance of witnesses and the production of
evidence on behalf of the parties.
D) A person aggrieved by an order of the Control Board may
apply for rehearing upon one or more of the following
grounds and upon no other grounds:
1) The Control Board acted without or in excess of its
powers.
2) The order was procured by fraud.
3) The applicant has discovered new evidence, material
which could not with reasonable diligence have been
discovered and produced at the hearing.
E) 1) Within 30 days after the application for rehearing
is denied, or if the application is granted, within
ORDINANCE NO. 1197 24
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30 days after the decision on the rehearing, a
party aggrieved thereby may appeal to the district
court of the judicial district which is the situs
of the property affected by the order.
2) The court shall hear and decide the cause upon the
record of the Control Board. The court shall
determine whether the findings of the Control Board
were supported by substantial evidence, and whether
the Control Board made errors in law prejudicial to
the appellant.
SECTION XX. CIVIL PENALTIES
A) Any person who violates any provision, rule, with the
exception of the voluntary solid -fuel burning device
rule, or order under this program, after notice thereof
has been given by the Department shall be subject to a
civil penalty not to exceed five hundred dollars ($500)
per violation. Each day of violation shall constitute a
separate violation. The department may institute and
maintain any enforcement proceedings hereunder. Upon
request of the Department the county attorney shall
petition the court to impose, assess, and recover the
civil penalty.
B) Monies collected hereunder shall be deposited in a
special fund for the purpose of administering these
regulations.
SECTION XXI. SEVERABILITY CLAUSE
A) If any section or part thereof of this program be
declared invalid by a court of competent jurisdiction,
such decision shall not affect the remainder of the act
or any part thereunder.
SECTION XXII. AMENDMENTS AND REVISIONS
A) The Flathead Board of County Commissioners and Kalispell
City Council may enact any amendments or revisions of
this program which have been approved by the Control
Board on public hearing upon due notice. Due notice
shall be given by public advertisement once a week for at
least two weeks before the public hearing in a weekly or
daily newspaper published in Flathead County.
SECTION XXIII. Ordinance No. 1138 and Resolution No. 3908 are
hereby repealed.
SECTION XXIV. This Ordinance shall take effect from and after 30
days of its passage by the City Council and approval by the Mayor.
ORDINANCE NO. 1197 25
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PASSED AND APPROVED BY THE CITY COUNCIL AND MAYOR OF THE CITY OF
KAL I SPELL THIS 1 Sth DAY OF October , 19 9 3 .
5-0-uglasqb. Rauthe, Mayor
ATTEST:
IG�y- H. Robertson, Finance Director
ORDINANCE NO. 1197 26