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HomeMy WebLinkAboutItem 4.02 Const & Demolition Debris Ordor 19 82 /ii � 111 DATE: TO: STAFF REPORT CITY COUNCIL September 16, 2014 Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager �?14 " SUBJECT: Construction and Demolition Debris Ordinance Amendmen s Prepared by Martha Aja, Environmental Coordinator EXECUTIVE SUMMARY: CITY CLERK File #810 -30 The City's Construction and Demolition (C &D) Debris Ordinance requires that projects with a valuation of $100,000 or more recycle 100% of all concrete & asphalt and 50% of all other materials. The City Council will consider amendments to the City's C &D Debris Management Ordinance to increase the diversion rate to 65% for tenant improvements and to 75% for new development, modify exemptions that impact the exclusivity provisions of the City's agreement with Amador Valley Industries (AVI) and add a protocol for handling unauthorized containers. FINANCIAL IMPACT: None. RECOMMENDATION: Staff recommends that the City Council waive the reading and adopt the Ordinance Amending Chapter 5.32 (Solid Waste Management) and Chapter 7.30 (Waste Management Plan) relating to Construction and Demolition Debris. F _ . Submitted By- Assistant to the City Manager DESCRIPTION: \ Reviewed By Assistant City Manager The City's Construction and Demolition Debris Ordinance was adopted by the City Council in 2000 and applies to all projects that have a valuation of $100,000 or more. Projects that have a valuation of $1,000,000 or more are required to post a bond that they receive back upon submittal of their final paperwork. The current ordinance requires that all covered projects recycle 100% of all concrete and asphalt debris generated by a construction or demolition project undertaken within the City and at least 50% of all other materials. Page 1 of 2 ITEM NO. 4.2 The City has not made any changes to the recycling thresholds in the C &D Debris Ordinance since the ordinance was adopted. Staff is proposing several amendments to the City's C &D Debris Ordinance to achieve greater waste reduction and to address some current challenges /loopholes. The amendments that Staff is proposing will not have any impact on the rates. The proposed changes to Chapter 7.30 and 5.32 are intended to achieve several goals, which include the following: increase the diversion rate of C &D debris generated within the City, provide Staff with flexibility in the administration of the ordinance, ensure that final paperwork is submitted for all projects subject to the ordinance, establish a protocol for handling illegal containers and close a loophole that impacts the exclusivity provision of the City's agreement with AVI. On September 2, 2014, the City Council waived the reading and introduced the Ordinance amending Chapter 5.32 (Solid Waste Management) and Chapter 7.30 (Waste Management Plan). Please refer to the September 2, 2014 City Council Staff Report for a complete discussion of the amendments to the Ordinance (Attachment 1). The City Council is being asked to waive the second reading and adopt the Ordinance (Attachment 2). NOTICING REQUIREMENTS /PUBLIC OUTREACH: None. ATTACHMENTS: 1 City Council Staff Report dated September 2, 2014 (without attachments) 2. Ordinance amending Chapter 5.30 (Solid Waste Management) and Chapter 7.30 (Waste Management Plan) relating to Construction and Demolition Debris Page 2 of 2 or 19 82 /ii � 111 DATE: TO: STAFF REPORT CITY COUNCIL September 2, 2014 Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager " SUBJECT: Construction and Demolition Ordinance Amendments Prepared by Martha Aja, Environmental Coordinator EXECUTIVE SUMMARY: CITY CLERK File #810 -30 The City's Construction and Demolition (C &D) Debris Ordinance requires that projects with a valuation of $100,000 or more recycle 100% of all concrete & asphalt and 50% of all other materials. The City Council will consider amendments to the City's C &D Debris Management Ordinance to increase the diversion rate to 65% for tenant improvements and to 75% for new development, modify exemptions that impact the exclusivity provisions of the City's agreement with Amador Valley Industries (AVI) and add a protocol for handling unauthorized containers. FINANCIAL IMPACT: No financial impact. RECOMMENDATION: Staff recommends that the City Council conduct the public hearing, deliberate, waive the reading and INTRODUCE an Ordinance Amending Chapter 5.32 (Solid Waste Management) and Chapter 7.30 (Waste Management Plan) relating to the Collection and Recycling of Construction and Demolition Debris. AMENDING CHAPTER 5.32 (SOLID WASTE MANAGEMENT) AND CHAPTER 7.30 (WASTE MANAGEMENT PLAN) RELATING CONSTRUCTION AND DEMOLITION DEBRIS F _ . Submitted By- Assistant to the City Manager DESCRIPTION: Background '\ Reviewed By Assistant City Manager Page 1 of 5 ITEM NO. 6.2 At the April 1, 2014 City Council meeting, the City Council directed Staff to prepare an ordinance amendment updating the City's C &D Debris Management Ordinance (Attachment 1). The ordinance was adopted by the City Council in 2000 and applies to all projects that have a valuation of $100,000 or more. Projects that have a valuation of $1,000,000 or more are required to post a bond that they receive back upon submittal of their final paperwork. The current ordinance requires that all covered projects recycle 100% of all concrete and asphalt debris generated by a construction or demolition project undertaken within the City and the recycling of at least 50% of all other materials. Within the City of Dublin, C &D debris accounts for approximately 20% of the waste generated annually. Construction of a typical residential home produces approximately 17,000 pounds of C &D waste. Therefore, the recycling of C &D waste is especially critical to the City of Dublin as it contributes significantly to its diversion and Climate Action Plan goals since the City is still growing. Recycling C &D waste not only keeps it from ending up in the landfill, but also reduces what is known as the upstream energy consumption that would have occurred from the manufacture of new construction materials derived from virgin sources. The City has not made any changes to the recycling thresholds in the C &D Debris Ordinance since the ordinance was adopted. Staff is proposing several amendments to the City's C &D Debris Ordinance to achieve greater waste reduction and to address some current challenges /loopholes. The amendments that Staff is proposing will not have any impact on the rates paid by Dublin residents and businesses. Anticipated Impacts to homeowners: It is anticipated that the impact the ordinance amendments will have upon the Dublin residents will be minimal. As shown in Table 1 below, in the past four and a half years, there have been a total of seven residential projects that had a valuation of over $100,000 and were required to submit a Waste Management Plan. Out of those seven projects, only three building permits were pulled by a homeowner. The other four projects were done by a contactor. Between 2010 and 2014 (to 8/15/14), the City issued 9,784 building permits and only three were pulled by a homeowner. The number of residents who have been impacted by the C &D Debris Ordinance in the last four and a half years is approximately .03 %. Since the City is not proposing to lower the valuation threshold, it is not anticipated that the proposed ordinance amendments will impact Dublin homeowners. Table 1: Residential Proiects Subiect to the C &D Ordinance Calendar Year No. of projects Type of Work Owner Builder or Contractor 2010 1 Fire Restoration Owner /Builder 2011 3 2 Additions and 1 second unit Additions were Owner /Builder Second unit was by a Contractor 2012 1 Addition Contractor 2013 1 Remodel Contractor 2014 (to 8/15/14) 1 Addition Contractor Amendment Proposals The proposed changes noted below are intended to achieve several goals, which include the following: increase the diversion rate of C &D debris generated within the City; provide Staff with Page 2 of 5 flexibility in the administration of the ordinance; ensure that final paperwork is submitted for all projects subject to the ordinance; establish a protocol for handling illegal containers and close a loophole that impacts the exclusivity provision of the City's agreement with AVI. To require that a greater percentage of construction materials be recycled: • Increase the recycling requirement of materials (excluding concrete and asphalt) from 50% to 65% for remodels and to 75% for new construction. In 2008, the City Council adopted a goal to divert 75% of all solid waste generated within the City away from the landfill. The proposed increase is consistent with the City's diversion goal. According to the City's Chief Building Official, new construction projects in the City are currently recycling upwards of 80% to 90% of construction related materials. • The California Building Standards Commission (CBSC) is proposing to increase the C &D recycling standard from 50% to 65 %. This proposed change is moving the current tier 1 voluntary measure of 65% to the mandatory measure. This particular code measure has gone un- amended for the past three years in the State Building Code. Increasing the diversion requirement in the City's C &D Ordinance to 65% for remodels and to 75% for new construction would allow the City to stay out in front of the C &D recycling requirements in the State Code. To provide Staff with greater flexibility in administering the ordinance: • Include exceptions in the ordinance to give discretion to the Waste Management Compliance Officer to waive the requirement for the bond and /or the report. These exceptions would apply to projects that are non -waste generating projects and produce a de minimis amount of waste. For example, an office building in Dublin recently installed a new HVAC system, which had a valuation over $1,000,000; therefore, per our C &D Debris Ordinance, the business was required to create a waste management plan and post a bond. The only waste that was generated from this project was the plastic wrap that the equipment was wrapped in. Allowing Staff some latitude to exercise judgment over the need for the submittal of a Waste Management Plan and the posting of a bond would allow the City to provide better customer service when projects come along that meet the letter of the law but do not rationally meet its intent. To close a loop hole in ordinance administration to ensure greater compliance with recycling requirements: • The City is finding that, while the ordinance requires the submittal of a plan to recycle waste at project outset, permits are being finalized without verification of compliance with the plan. Simply, closeout documentation is not required for projects valued more than $100,000 and less than $1,000,000. The draft ordinance includes a requirement that projects that do not post a bond submit all documentation prior to the issuance of a certificate of occupancy. This would address the problem of the City not receiving the final paperwork for the projects that are not required to post a bond (projects valued over $1,000,000 must post a bond). • Require that all new buildings post a bond to ensure that developers are complying with the ordinance. Page 3 of 5 To address the problem of residents hiring companies other than Amador Valley Industries (AVI) to collect C &D materials: • Staff is recommending that language be added to the ordinance to establish a protocol for dealing with illegal dumpsters (i.e., when a resident or business uses a company other than AVI for their C &D waste hauling). Currently it is somewhat difficult to enforce the ordinance, and having a mechanism to deal with this problem is important since AVI has an exclusive right to the C &D waste generated in the City. Staff proposes that language be added to Chapter 5.32 (Solid Waste Management) to give the City the ability to tag the illegal dumpsters. The resident or business would have a set amount of time (72 hours) to get rid of the dumpster before a fine or impounding was to occur. • Staff is proposing a new section to Chapter 5.32 to establish a protocol for dealing with unauthorized containers. As outlined in the proposed section, the hauler that violates the City's exclusive agreement with AVI would be liable to the City for all fines and charges levied in connection with the collection, transportation, storage and handling of the container by the City. If the unauthorized container is not retrieved by the hauler within 14 days of being impounded, it would become the property of the City. To address concerns with exemptions within our ordinance, which undermine the exclusivi provisions of the City's agreement with the AVI: • Staff is proposing a few modifications to the exclusive exemptions (Section 5.32.130). Most notably, the proposed ordinance removes the exemption within the ordinance that allows anyone to collect C &D waste as long as they claim that they are diverting 95% of their waste. The ordinance, in its current form, does not require any reporting or documentation to support the claim, so as long as they say they are diverting 95% of their waste, there is really no proof. Additionally, clarifying language was added to Section 5.32.130 that states that when C &D debris is removed from a construction site by a construction contractor or demolition contractor that the contractor's own employees and equipment be used and not third party collectors. On April 1, 2014, the City Council considered possible amendments to the C &D Ordinance and directed Staff to proceed with the proposed ordinance amendments. The City Council also provided direction to Staff to hold an outreach meeting with the development community to discuss Staff's recommended changes to the C &D Ordinance. The April 1, 2014 City Council Staff Report is included as Attachment 1. The draft ordinance amending Chapter 5.30 and Chapter 7.30 is included as Attachment 2. The proposed changes to the chapters are shown in strikeout and red -lined (Attachments 3, 4 & 5). NOTICING REQUIREMENTS /PUBLIC OUTREACH: Staff held an informational meeting on May 15, 2014 with the development community. The purpose of the meeting was to allow the development community an opportunity to weigh in on the proposed amendments and express any concerns. The City invited the developers, a subset of contractors, and homeowners who had completed a large remodel to the meeting. The meeting was attended by representatives from the development community and from AVI. Staff took the feedback received at this meeting and made some modifications to the proposed ordinance. Staff was originally proposing that the diversion requirement be increased from 50% Page 4 of 5 to 75% for all projects (excluding concrete and asphalt). As a result of the feedback received at the meeting, Staff proposes to increase the diversion requirement of materials (excluding concrete and asphalt) from 50% to 65% for remodels and to 75% for new construction. A Public Notice was sent to the individuals that were invited to the outreach meeting and also published in the Valley Times and posted at several locations throughout the City. ENVIRONMENTAL REVIEW: The California Environmental Quality Act (CEQA), together with State Guidelines and City Environmental Regulations require that certain projects be reviewed for environmental impacts and that environmental documents be prepared. Pursuant to CEQA, Staff is recommending that the proposed Ordinance be found exempt from CEQA per CEQA Guidelines Section 15061(b)(3). Section 15061(b)(3) states that CEQA applies only to those projects that have the potential to cause a significant effect on the environment. The adoption of this Ordinance is exempt from CEQA because the Ordinance does not, in itself, allow the construction of any building or structure, but it sets forth the thresholds for recycling construction and demolition waste that shall be followed if and when a building or structure is proposed to be constructed or a site is proposed to be developed. This ordinance of itself, therefore, has no potential for directly resulting in significant physical change in the environment. ATTACHMENTS: 1. City Council Staff Report dated April 1, 2014 (without attachments) 2. Ordinance Amending Chapter 5.32 (Solid Waste Management) and Chapter 7.30 (Waste Management Plan) relating to the Collection and Recycling of Construction and Demolition Debris Page 5 of 5 ORDINANCE NO. xx -14 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN AMENDING CHAPTER 5.32 (SOLID WASTE MANAGEMENT) AND CHAPTER 7.30 (WASTE MANAGEMENT PLAN) RELATING CONSTRUCTION AND DEMOLITION DEBRIS The City Council of the City of Dublin does hereby ordain as follows: Section 1: Compliance with California Environmental Quality Act ( "CEQA "): This Ordinance is exempt from CEQA per CEQA Guidelines Section 15061(b) (3). Section 15061(b) (3) states that CEQA applies only to those projects that have the potential to cause a significant effect on the environment. The adoption of this Ordinance is exempt from CEQA because the Ordinance does not, in itself, allow the construction of any building or structure, but it sets forth the thresholds for recycling construction and demolition waste that shall be followed if and when a building or structure is proposed to be constructed or a site is proposed to be developed. This Ordinance of itself, therefore, has no potential for resulting in significant physical change in the environment, directly. Section 2: Section 5.32.130, "Exclusive and nonexclusive franchises — Exemptions" is hereby amended to read in its entirety as follows: A. Franchise Required. No persons other than the holder of the exclusive franchise granted pursuant to subsection C of this section or persons granted a nonexclusive franchise agreement with the city pursuant to subsection D of this section shall collect, transport or convey, or cause or permit to be collected, transported or conveyed, on any city street any solid waste for a fee or any consideration whatsoever. B. Exemption from Franchise Requirement. Notwithstanding the foregoing, the following shall be exempt from the franchise requirement set forth in subsection A of this section- 1 . The collection of materials source - separated for recycling for which compensation is provided to the waste generator. 2. Materials source - separated for recycling that the generator donates to youth, civic, or charitable organizations, no matter how the materials are transported. 3. Solid waste and source - separated materials for recycling transported to a processing or disposal facility by the owner or occupant of the premises on which the materials were generated or by the owner's or occupant's full -time employees, provided such transport is consistent with Section 5.32.150. 4. Lawn and garden trimmings and dead leaves removed from a site by a gardening, landscaping or tree trimming contractor, as an incidental part of a total service offered by that contractor rather than as a hauling service, if such waste is transported in a manner which ensures no spillage or litter of highways or city streets. 5. Large items removed from a premises by a property clean -up or maintenance company as an incidental part of cleanup or maintenance service offered by the company and not as a separate hauling service. 1 6. The collection and transport of animal wastes and remains for tallow; provided, that a permit for such collection and transport has been issued by the Alameda County Health Officer. 7. Containers delivered for recycling under the California Beverage Container Recycling Litter Reduction Act, Public Resources Code Sections 14500 et seq., no matter how delivered. 8. Hazardous waste. 9. The collection and removal of construction and demolition debris from a construction site by the construction contractor; provided, that the hauling is performed by the contractor itself using its own employees and equipment and not by a subcontracted hauling company. 10.The collection and removal of construction and demolition debris from a demolition site by a licensed demolition contractor using its own employees and equipment and not by a subcontracted hauling company, under the authority of a currently valid demolition permit issued by the city of Dublin, when such removal is accomplished through the use of a fixed body vehicle. C. Exclusive Franchise. The city may enter into an exclusive franchise agreement granting to one (1) person the exclusive right to collect or transport, or cause to be collected or transported for a fee, all solid waste within the city or any portion thereof. The franchise agreement shall provide detailed requirements for the management and disposal of solid waste in the city and provide for regulation of the fees to be collected under the exclusive franchise. D. Nonexclusive Franchises. The city may enter into nonexclusive franchise agreements granting to a person the right to collect or transport, or cause to be collected or transported for a fee, solid waste within the city or any portion thereof, if the collection and transport of such waste is not subject to the exclusivity provisions of the exclusive franchise or if the generator is exempted by law from complying with the requirement in Sections 5.32.080 and 5.32.090 that all generators of solid waste within the city deliver such waste to and contract with the collector for solid waste collection and disposal services. The nonexclusive franchise agreement shall provide detailed requirements for the management and disposal of solid waste in the city. The franchise agreement shall not regulate the fees collected under the nonexclusive franchise Section 3: Section 5.32.365, "Unauthorized Containers" is hereby added to the Dublin Municipal Code to read in its entirety as follows: A. No unauthorized containers. Except as expressly authorized by this chapter, no person other than a franchisee may place a container within the city for collection of solid waste, recyclable, or compostable materials. B. Notice, Violation. The city shall notify, in writing, any person who violates this section that the prompt and permanent removal of the container from the premises is required. Notice should be delivered by prominently posting on the container. The notice shall state the time within which the container must be removed, which time shall be not less than 24 hours, and not more than 72 hours after posting of the notice. If the container is identified with the name and telephone number of the solid waste or recycling enterprise, the city shall also attempt to contact the enterprise by phone. Failure to notify the owner telephonically shall not invalidate the posted notice. Once the city posts a written notice of violation on the unauthorized 2 container, the customer using the unauthorized container shall immediately cease placing solid waste or recyclable materials in it. C. Remedies. The city may impound or cause to be impounded any such container if it is not permanently removed from the premises within the time set forth in the notice. A person who violates this section is liable to the city for all fines and charges levied in connection with the collection, transportation, storage and handling of the container by the city. The container's owner or his or her representative shall retrieve the container immediately after all applicable fines and charges have been paid. The City Manager, or his or her designee, has the authority to impound unauthorized containers and to collect the fines and charges levied by the city. If the unauthorized container is not retrieved by the hauler within 14 days of being impounded, it shall become the property of the city. D. Enforcement. Violation of Section 5.32.365 shall constitute an infraction punishable by a fine not to exceed one hundred dollars ($100) for the first violation, a fine not to exceed two hundred dollars ($200) for the second violation within one year, and a fine not to exceed five hundred dollars ($500) for each additional violation within one year. There shall be a separate infraction for each day on which a violation occurs. The city shall recover costs and attorney's fees incurred in connection with enforcement of this chapter. Section 4: Chapter 7.30, "Waste Management Plan" is hereby amended to read in its entirety as follows: 7.30.010 Definitions. For the purposes of this chapter, the following definitions shall apply: "Applicant" means any individual, firm, limited liability company, association, partnership, political subdivision, government agency, municipality, industry, public or private corporation, or any other entity whatsoever who applies to the city for the applicable permits to undertake any construction, demolition, or renovation project within the city. "Construction" means the building of any facility or structure or any portion thereof including any tenant improvements to an existing facility or structure. "Construction and demolition debris" means used or discarded materials resulting from construction, remodeling, repair or demolition operations on any pavement, house, commercial building, or other structure and such other materials as may be removed during the normal cleanup process of such construction, remodeling, repair, or demolition operations. "Conversion rate" means the rate set forth in the standardized conversion rate table approved by the city pursuant to this chapter for use in estimating the volume or weight of materials identified in a waste management plan. "Covered project" shall have the meaning set forth in Section 7.30.020(A) of this chapter. "Deconstruction" means the process of carefully dismantling a building or structure in order to salvage components for reuse and recycling. 3 "Demolition" means the decimating, razing, ruining, tearing down or wrecking of any facility, structure, pavement or building, whether in whole or in part, whether interior or exterior. "Diversion requirement" means the diversion of at least sixty -five percent (65 %) for remodels and seventy -five percent (75 %) for new construction by weight of the total construction and demolition debris generated by a project via reuse or recycling excluding asphalt and concrete debris of which one hundred percent (100 %) must be diverted, unless the applicant has been granted an infeasible exemption pursuant to Section 7.30.070 of this chapter, in which case the diversion requirement shall be the maximum feasible diversion rate established by the WMP Compliance Official for the project. "Divert" means to use material for any purpose other than disposal in a landfill or transformation facility. " Noncovered project" shall have the meaning set forth in Section 7.30.020(B) of this chapter. "Non -waste generating project" means a project that produces a de minimis amount of waste. Qualification as a non -waste generating project may be subject to the discretion of the WMP Compliance Official. "Performance security" means any performance bond, surety bond, money order, letter of credit, or certificate of deposit submitted to the city pursuant to Section 7.30.040 of this chapter. "Project" means any activity which requires an application for a building or demolition permit or any similar permit from the city. "Recycling" means the process of collecting, sorting, cleansing, treating and reconstituting materials that would otherwise become solid waste, and returning them to the economic mainstream in the form of raw material for new, reused or reconstituted products which meet the quality standards necessary to be used in the marketplace. "Renovation" means any change, addition or modification in an existing structure. "Reuse" means further or repeated use of construction or demolition debris. "Salvage" means the controlled removal of construction or demolition debris from a permitted building or demolition site for the purpose of recycling, reuse or storage for later recycling or reuse. "Total costs" means the total construction value of the project as calculated by the Building and Safety Division using the city's standard commercial and residential valuation formulas. "Waste management plan" means a completed WMP form, approved by the city for the purpose of compliance with this chapter, submitted by the applicant for any covered or noncovered project. "WMP Compliance Official" means the designated staff person(s) authorized and responsible for implementing this chapter. 51 7.30.020 Threshold for covered projects. A. Covered Projects. All construction, demolition, and renovation projects within the city, the total costs of which are greater than or equal to one hundred thousand dollars ($100,000) ( "covered projects "), shall comply with this chapter. Failure to comply with any of the terms of this chapter shall subject the project applicant to the full range of enforcement mechanisms set forth in Section 7.30.090 of this chapter. B. Noncovered Projects. Applicants for construction, demolition, and renovation projects within the city whose total costs are less than one hundred thousand dollars ($100,000) ( "noncovered projects ") shall be encouraged to divert at least sixty -five (65 %) of all project - related construction and demolition debris. C. City- sponsored Projects. All city- sponsored construction, demolition, and renovation projects, whose total costs are equal to or greater than one hundred thousand dollars ($100,000), shall be considered "covered projects" for the purposes of this chapter and shall submit a waste management plan ( "WMP ") to the WMP Compliance Official prior to beginning any construction or demolition activities and shall be subject to all applicable provisions of this chapter. 7.30.030 Submission of waste management plan. A. WMP Forms. Applicants for a plan check involving any covered project shall complete and submit a waste management on a WMP form approved by the city for this purpose. The WMP shall be submitted for review with the first plan check of an individual project or at the first check of a residential master plan in the case of a residential project. The completed WMP shall indicate all of the following- 1 . The estimated volume or weight of project construction and demolition debris, by materials type, to be generated; 2. The maximum volume or weight of such materials that can feasibly be diverted via reuse or recycling; 3. The vendor or facility that the applicant proposes to use to collect or receive that material; 4. The estimated volume or weight of construction and demolition materials that will be landfilled; and 5. The total square footage of the project. B. Calculating Volume and Weight of Debris. In estimating the volume or weight of materials identified in the WMP, the applicant shall use the standardized conversion rates approved by the city for this purpose. C. Deconstruction. In preparing the WMP, applicants for a plan check involving the removal of all or part of an existing structure shall consider deconstruction, to the maximum extent feasible, and shall make the materials generated thereby available for salvage prior to landfilling. 5 7.30.040 Performance security. A. Time and Amount of Security. The applicant for any new commercial building (regardless of valuation) or for any covered project with a total project value greater than or equal to one million dollars ($1,000,000) shall submit a performance security before the issuance of a building or demolition permit. For residential projects, a performance security shall be submitted for each phase and shall be calculated using the following formula: (project square footage) x (60/2000) x ($35) + $2,738. This means that the total square footage of the project shall be multiplied by the average waste generation for all projects types per ton, which is sixty (60) pounds per square foot of project. That number shall then be multiplied by thirty -five dollars ($35) which is the cost of landfilling one (1) ton of material. (This thirty -five dollars ($35) can be increased annually on July 1st, beginning on July 1, 2001, by the increase in the Engineering News Record Cost Construction Index (twenty (20) city average) over the preceding July 1st rate.) That number shall then be increased by the project's portion of the estimated fine per day that the city would incur for violation of AB 939, which is two thousand seven hundred thirty -eight dollars ($2,738). This number results from the fact that construction and demolition waste equals thirty percent (30 %) of waste disposed in landfill, based on four hundred (400) completed projects per year, with a ten thousand dollar ($10,000) per day fine that the city will pay for the violation of AB 939 for three hundred sixty - five (365) days before achieving sixty -five (65 %) diversion for remodels or seventy -five (75 %) diversion for new construction [.30 x ($10,000 x 365)/400]. B. Form of Security. Acceptable forms of performance security include the following: performance bonds; surety bonds; money orders; letters of credit; certificates of deposit; and cash. F &IOXIMIJ:Z 7C3, o itTA T,1 a A. Approval. Notwithstanding any other provision of this code, no plan check shall be approved for any covered project unless and until the WMP Compliance Official has approved the WMP. Approval shall not be required, however, where an emergency demolition is required to protect public health or safety. The WMP Compliance Official shall only approve a WMP if he or she first determines that all of the following conditions have been met: 1. The WMP provides all of the information set forth in Section 7.30.030 of this chapter; and 2. The WMP indicates that the diversion requirements will be met. If the WMP Compliance Official determines that all of the conditions set forth in this section have been met, he or she shall mark the WMP "approved," return a copy of the WMP to the applicant, and notify the Building and Safety Division that the WMP has been approved. B. Nonapproval. If the WMP Compliance Official determines that the WMP is incomplete or fails to indicate that at least sixty -five percent (65 %) for remodels or seventy -five percent (75 %) for new construction of all construction and demolition debris generated by the project will be reused or recycled, he or she shall either: 1. Return the WMP to the applicant marked "denied," including a statement of reasons, and so notify the Building and Safety Division, which shall then immediately stop processing the plan check; or 2. Return the WMP to the applicant marked "further explanation required." 6 7.30.060 Compliance with WMP. A. Documentation. Projects that do not post a bond shall submit all documentation prior to the issuance of a certificate of occupancy. Projects that submit a bond shall submit all documentation within thirty (30) days after issuing the certificate of occupancy. Phased projects that submit a bond shall submit all documentation within thirty (30) days after issuing the last certificate of occupancy. The documentation shall be submitted by the applicant to the WMP Compliance Official demonstrating that the diversion requirement for the project has been met. The diversion requirement shall be that the applicant has diverted at least sixty -five percent (65 %) for remodels or seventy -five percent (75 %) for new construction of the total construction and demolition debris generated by the project via reuse or recycling excluding asphalt and concrete debris of which one hundred percent (100 %) must be diverted, unless the applicant has been granted an exemption pursuant to Section 7.30.070 of this chapter, in which case the diversion requirement shall be the maximum feasible diversion rate established by the WMP Compliance Official for the project. This documentation shall include all of the following: 1. Receipts from the vendor or facility which collected or received each material showing the actual weight or volume of that material; 2. A copy of the previously approved WMP for the project adding the actual volume or weight of each material diverted and landfilled; and 3. Any additional information the applicant believes is relevant to determining its efforts to comply in good faith with this chapter. B. Weight of Wastes. Applicants shall make reasonable efforts to ensure that all construction and demolition debris diverted or landfilled is measured and recorded using the most accurate method of measurement available. To the extent practical, all construction and demolition debris shall be weighed by measurement on scales. Such scales shall be in compliance with all regulatory requirements for accuracy and maintenance. For construction and demolition debris for which weighing is not practical due to small size or other considerations, a volumetric measurement shall be used. For conversion of volumetric measurements to weight, the applicant shall use the standardized conversion rates approved by the city for this purpose. C. Determination of Compliance and Release of Performance Security. The WMP Compliance Official shall review the information submitted under subsection A of this section and determine whether the applicant has complied with the diversion requirement as follows- 1 . Full Compliance. If the WMP Compliance Official determines that the applicant has fully complied with the diversion requirement applicable to the project, he or she shall cause the full performance security to be released to the applicant within thirty (30) days of the applicant's submission of the documentation required under subsection A of this section. 2. Good Faith Effort to Comply. If the WMP Compliance Official determines that the diversion requirement has not been achieved, he or she shall determine on a case -by- case basis whether the applicant has made a good faith effort to comply with this chapter. In making this determination, the WMP Compliance Official shall consider the availability of markets for the construction and demolition debris landfilled, the size of the project, and the documented efforts of the applicant to divert construction and demolition debris. If the WMP Compliance Official determines that the applicant has made a good faith effort to comply with this chapter, he or she shall release the performance security, or a percentage thereof, to the applicant within thirty (30) days 7 of the applicant's submission of the documentation required under subsection A of this section. 3. Noncompliance. If the WMP Compliance Official determines that the applicant has not made a good faith effort to comply with this chapter, or if the applicant fails to submit the documentation required by subsection A of this section within the required time period, then the performance security shall be forfeited to the city. All forfeited performance securities shall be deposited into a special account and used for the purposes of promoting recycling within the city. 4. Repeated Noncompliance for projects that do not post a bond- i. The first instance within a 36 month period where a contractor fails to divert sixty -five percent (65 %) for a remodel or seventy -five percent (75 %) for new construction of the total construction and demolition debris generated by the project via reuse or recycling (excluding asphalt and concrete of which one hundred percent (100 %) must be diverted) shall result in a verbal warning. ii. The second instance within a 36 month period where a contractor fails to divert sixty -five percent (65 %) for a remodel or seventy -five (75) for new construction of the total construction and demolition debris generated by the project via reuse or recycling (excluding asphalt and concrete of which one hundred percent (100 %) shall result in a written warning. iii. The third instance within a 36 month period where a contractor fails to divert sixty -five (65 %) for a remodel or seventy -five percent (75 %) for new construction of the total construction and demolition debris generated by the project via reuse or recycling (excluding asphalt and concrete of which one hundred percent (100 %) must be diverted shall result in a performance security being required for future jobs with a valuation between $100,000 and a million dollars. 7.30.070 Exemptions. A. Non - generating waste projects. The WMP Compliance Official shall have the authority to waive the requirement for the bond and /or the WMP for projects that generate a de minimis amount of waste as determined by the WMP Compliance Official. B. Application. If an applicant for a covered project experiences unique circumstances that the applicant believes make it infeasible to comply with the diversion requirement, the applicant may apply for an exemption at the time that he or she submits the WMP required under Section 7.30.030 of this chapter. The applicant shall indicate on the WMP the maximum rate of diversion he or she believes is feasible for each material and the specific circumstances that he or she believes make it infeasible to comply with the diversion requirement. C. Meeting with WMP Compliance Official. The WMP Compliance Official shall review the information supplied by the applicant and may meet with the applicant to discuss possible ways of meeting the diversion requirement. Upon request of the city, the WMP Compliance Official may request that staff from the Alameda County Waste Management Authority attend this meeting or may require the applicant to request a separate meeting with Alameda County Waste Management Authority staff. Based on the information supplied by the applicant and, if applicable, Alameda County Waste Management Authority staff, the WMP Compliance Official shall determine whether it is possible for the applicant to meet the diversion requirement. 0 D. Granting of Exemption. If the WMP Compliance Official determines that it is infeasible for the applicant to meet the diversion requirement due to unique circumstances, he or she shall determine the maximum feasible diversion rate for each material and shall indicate this rate on the WMP submitted by the applicant. The WMP Compliance Official shall return a copy of the WMP to the applicant marked "approved for infeasible exemption" and shall notify the Building and Safety Division that the WMP has been approved. E. Denial of Exemption. If the WMP Compliance Official determines that it is possible for the applicant to meet the diversion requirement, he or she shall so inform the applicant in writing. The applicant shall have thirty (30) days to resubmit a WMP form in full compliance with Section 7.30.030 of this chapter. If the applicant fails to resubmit the WMP, or if the resubmitted WMP does not comply with Section 7.30.030 of this chapter, the WMP Compliance Official shall deny the WMP in accordance with Section 7.30.050(B) of this chapter. 7.30.080 Appeal. A. Appeals of a determination made under this chapter shall be made to the City Manager pursuant to Section 1.04.050 of this code and shall be limited to the following issues: (1) the granting or denial of an exemption; (2) whether the applicant has made a good faith effort to comply with the WMP; and (3) the amount of security to be released. 7.30.090 Enforcement. A. Violation of any provision of this chapter may be enforced by civil action including an action for injunctive relief. In any civil enforcement action, administrative or judicial, the city shall be entitled to recover its attorneys' fees and costs from a person who is determined by a court of competent jurisdiction to have violated this chapter. B. Violation of any provision of this chapter shall constitute an infraction punishable by a fine not to exceed one hundred dollars ($100) for the first violation, a fine not to exceed two hundred dollars ($200) for the second violation within one year, and a fine not to exceed five hundred dollars ($500) for each additional violation within one year. There shall be a separate infraction for each day on which a violation occurs. Where the violation is the failure to achieve the diversion requirement applicable to the project and the construction and demolition materials from the project have already been landfilled, the violation shall be deemed to have ceased after a period of ten (10) days. The city shall recover costs and attorney's fees incurred in connection with enforcement of this chapter. C. Enforcement pursuant to this section shall be undertaken by the city through its Community Development Director and the City Attorney. Section 5. Severability. The provisions of this Ordinance are severable and if any provision, clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or inapplicable to any person or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall not affect or impair any of the remaining provisions, clauses, sentences, sections, words or parts thereof of the ordinance or their applicability to other persons or circumstances. Section 6. Effective Date. This Ordinance shall take effect and be enforced thirty (30) days following its adoption. 9 Section 7. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED, APPROVED AND ADOPTED this 16th day of September, 2014. AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk 10