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HomeMy WebLinkAbout20071003 Staff Report CC WKS on Violations4-ROSEMOUNT EXECUTIVE SUMMARY CITY COUNCIL City Council Work Session: October 3, 2007 AGENDA ITEM: Spectro Alloy AGENDA SECTION: Discussion PREPARED BY: Eric Zweber, Senior Planner AGENDA NO. ATTACHMENTS: None APPROVED BY:fy RECOMMENDED ACTION: Provide Staff Direction ISSUE Dakota County Environmental Management (DCEM) has informed the City of a number of hazard waste disposal violations occurring at Spectro Alloy. These violations spur from the improper disposal of milling process water containing lead and cadmium and the improper storage and processing of aluminum dross containing PCBs and can generate hydrogen, methane and other gases when mixed with water. DCEM staff is recommending to revoke Spectro Alloy's hazardous waste generator's permit until these issues are resolved. The Dakota County Board of Commissioners will likely act on this recommendation at their November Board meeting. DISCUSSION DCEM staff has requested assistance in their enforcement efforts from the other regulatory agencies that have control over Spectro Alloy. DCEM will use these cooperative enforcement efforts as evidence to the County Board that it is not only DCEM staff that has issue with the way that Spectro Alloy operates. DCEM staff also hopes that multiple enforcement efforts will make Spectro Alloy managers aware that these are serious violations and that many eyes are watching them. The Environmental Protection Agency (EPA) has been pursuing Spectro Alloy for violations of air quality regulations, particularly dioxins emissions. DCEM staff has indicated that the EPA is considering serious penalties for Spectro Alloy, but they likely will not be issued until next year. DCEM staff has been in contact with Occupational Safety and Health Administration (OSHA) staff to discuss potential workplace health and safety violations. DCEM staff has stated that they have attempted to involve Minnesota Pollution Control Administration (MPCA) staff in the enforcement process, but have indicated that MPCA staff are deferring enforcement to the EPA. DCEM staff has requested that Rosemount staff contact the MPCA to try and convince the MPCA to become involved. On October 2, Rosemount staff made contact with a MPCA staff member in their stormwater division that was interested in pursuing an investigation at Spectro Alloy. If Rosemount was to pursue its own enforcement process, there are four likely options: working with the other regulatory agencies; enforcing the property maintenance code violations; work towards requiring Spectro Alloy to apply for a Conditional Use Permit; or pursuing abatement of the current environmental violations through a civil nuisance lawsuit. Rosemount can conduct any of these four alternatives or any combination of them. Work with other Regulatory Agencies Currently, DCEM and the EPA are pursuing enforcement measures against Spectro Alloy, and it appears promising that OSHA and the MPCA may begin independent investigations as well. These agencies all have staff with expertise in industrial regulations and enforcement that Rosemount staff does not possess. Also, these agencies have the ability to take more significant levels of enforcement, such as license revocation and /or fines in the thousands of dollars, than we have. Rosemount staff would stay in contact with the appropriate agencies' staff to ensure that enforcement is occurring. The downside to this option is that these agencies are not concerned with aesthetics of the Spectro Alloy operation, over which we have authority through our property maintenance and zoning ordinances. Also, we do not have direct control over what priorities the separate agencies have nor can we control what penalties or compromises Spectro Alloy are subjected to by the respective agencies. Enforce Property Maintenance Code violations Similar to the enforcements that we did with Endres earlier this year, staff can initiate a site inspection of Spectro Alloy and issue citations of our property maintenance and zoning ordinances. These regulations are pretty limited to aesthetic and site plan issues and do not have any real control over the operation of the facility or how they handle their hazardous material. Our regulations would require Spectro look more orderly and appealing in the way they operate. Code enforcement violations focus on compliance with the City's ordinances, not enacting significant financial penalties. The downside to this option would be that it would resolve current code violations in the short term, but does not provide any long term guarantees that they will continue to operate within the ordinance. Long term enforcement could only be ensured by periodic inspection of Spectro's operation by City staff. Work towards requiring Spectro to apply for a Conditional Use Permit Long term City regulation of Spectro Alloy's operation would require Spectro Alloy to be subject to a Conditional Use Permit (CUP) or some other type of permit that the City would be able to revoke if they fail to meet the conditions in which they operate. If Spectro Alloy was a new business looking to locate within Rosemount, they could be required to apply for a CUP within the GI — General Industrial zoning. Spectro Alloy currently does not have a CUP and is classified as a legal non - conforming use because their operation began before the City ordinance required a CUP for their use. The only way that the City can require Spectro Alloy to submit for a CUP would be if they changed their operation in a way that would expand their facility. If Dakota County did revoke Spectro Alloy's permit until Spectro would handle their aluminum dross indoors, this may require an expansion to their building to enclose the dross processing. It is questionable if State Statute would classify this as an expansion because there are provisions for businesses to change their operation to accommodate changes in the way they are regulated. In other words, if the handling of the dross indoors is a requirement that Dakota County places on Spectro Alloy that wasn't in Dakota County's original permit, then that may make any building expansion that Spectro performs exempt from our non - conforming use regulations. The downside to this is that we can only place conditions within a CUP that we have the expertise or authority to enforce. We would have more ability to regulate the aesthetic manner in which Spectro Alloy operates greater than what is currently provided within our ordinance, but we would not be able to enforce the way in which Spectro conducts their operation that other agencies would regulate. Pursue Abatement through a civil Nuisance Lawsuit against Spectro The most drastic and most costly option we could pursue would be to file a civil nuisance lawsuit against Spectro Alloy to make them stop exposing our community and our residents to environmental hazards and to clean up and abate any contamination that they have caused. This would be the most serious penalty that the City could enforce on Spectro and may result in legal expense to Spectro in fines and clean up costs that may drive them out of business. If it appeared that Spectro would be driven out of business, we may also need to bring a lawsuit to seize some of their assets to ensure that there are funds are available for the clean up to occur. The downside of the option would be the financial costs to the City. The staff time, from administration, community development and legal consultants, would likely be significant and take resources away from other City efforts. In addition to the use of existing staff time, it is likely that an environmental consulting firm would need to be retained to collect the evidence necessary to prove the case for a nuisance lawsuit. If the City wished to pursue this option, it may be best to file a joint nuisance lawsuit with the other regulatory agencies. This would spread the cost out among the numerous agencies and staff from DCEM, MPCA and EPA has the environmental expertise and access to testing that would be needed to prove the case in a nuisance lawsuit. SUMMARY Staff is looking for direction from the City Council about which enforcement measures City staff should pursue.