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0-2002-25

AN ORDINANCE

ORDINANCE AMENDING TITLE FIVE OF THE LAKEWOOD MUNICIPAL CODE BY CREATING A NEW CHAPTER 5.25 REGULATING CREMATORIES

WHEREAS, crematories operate within the City; and,

WHEREAS, air emissions from crematories have the potential to negatively affect the environment, the health of citizens, and citizens' ability to use and enjoy their property free from air pollution as well as unreasonable interference, disruption and nuisance; and,

WHEREAS, it is necessary to protect, preserve and promote the health, safety and welfare of the citizens of the City through the reduction and control of air pollution from crematories; and

WHEREAS, it is the intent of the City Council to establish and provide for the enforcement of air quality standards applicable to crematories which will assure that ambient air shall be adequately free from smoke and associated contaminants, pollutants, or other agents injurious to human health or which interferes with the comfortable enjoyment of life or property or the conduct of business.

NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Lakewood, Colorado, that:

Section 1. Title Five of the Lakewood Municipal Code is amended by the addition of a new Chapter 5.25 to read as follows:

5.25.010 Crematories

A. Definitions

1. Annual Service: Means inspection, maintenance and repair of every system in a Crematory, including but not limited to electronics, burners, refractory, processing station, gas and air settings, and gas pressures. Annual Service also includes Operator instruction, training and certification.

2. Crematory: Any equipment, machine, device, contrivance or other article, and all appurtenances, used for the destruction or reduction by fire of human and/or animal bodies, body parts, and tissues.

3. Continuous Opacity Monitor and Recorder: A device installed in the crematory outlet stack, which provides the operator with an audible alarm signal when the opacity has exceeded a preset limit. The instrument continuously records opacity conditions electronically, on a medium acceptable to the City, allowing a determination when limits have been exceeded.

4. Day(s): As used in this Chapter, the words " day" or "days" means a calendar day or days.

5. Opacity: The degree to which an air pollutant obscures the view of an observer, expressed in percentage of obscuration or the degree (expressed in percent) to which transmittance of light is reduced by the air pollutant.

6. Operator: Any person operating a crematory furnace.

7. Owner: Any person having an ownership interest of any kind in a crematory. The term "Owner" includes each and every natural person having any ownership interest in any entity that owns a crematory.

8. Qualified Observer: A person trained and certified to observe opacity in accordance with the United States Environmental Protection Agency's Method 9, 40 C.F.R. Part 60, Appendix A-4, Method 9.

5.25.020 Standards

A. Opacity. No person shall cause or allow the discharge, release, dispersal or escape into the atmosphere from any Crematory, for more than 60 continuous seconds, of any air emission that is a shade darker or density darker than 20 percent opacity. Prima facie evidence of a violation of this standard will consist of:

1. Results from a Continuous Opacity Monitor and Recorder; or

2. Visual determinations of opacity as determined by a Qualified Observer using the United States Environmental Protection Agency's Method 9 for the Visual Determination of the Opacity of Emissions from Stationary Sources, 40 C.F.R. Part 60, Appendix A-4, Method 9, with the exception that a violation will occur if five consecutive visual determinations are taken at fifteen second intervals and each is in excess of 20 percent opacity.

B. Construction. All Owners shall ensure that all existing crematories and newly constructed crematories shall comply with City building and fire codes and the air quality laws of the City, the State of Colorado and the United States.

C. Annual Service. All crematory furnaces within the City shall receive Annual Service by the manufacturer. Written evidence of the Annual Service shall be required in order to obtain the annual operating license required below.

5.25.030 Operations.

A. Any Owner of a Crematory shall properly install and maintain in calibration, in good working order and operation, a Continuous Opacity Monitor and Recorder that continuously records opacity at all times during the cremation process and cool down periods. The Continuous Opacity Monitor shall meet or exceed the recommended specifications of the manufacturer of the Crematory to which the Continuous Opacity Monitor will be attached. The Continuous Opacity Monitor and Recorder shall also emit an audible alarm whenever the opacity standard is exceeded, which alarm shall not stop until the opacity limitation is met. All crematories existing in the City at the time this ordinance is enacted shall comply with the requirements in this subparagraph within 120 days of the effective date of this ordinance. Compliance with this subparagraph shall be a condition of receiving an annual license as is required under section 5.25.040 below.

B. The Continuous Opacity Monitor and Recorder shall be calibrated and maintained by the Owner in accordance with the manufacturer's specifications and shall be calibrated at least once each month. Written records of each calibration shall be kept by the Owner and submitted monthly to the City's Environmental Manager simultaneously with the monthly submission of electronic records of the Continuous Opacity Monitor and Recorder as provided below. The opacity meter shall be located after (downstream of) all control equipment, prior to the stack exit, and prior to dilution with ambient air. All readings from the Continuous Opacity Monitor and Recorder shall be recorded electronically using a method, and on a medium, acceptable to the City. Unless required more frequently by the Environmental Manager, all original daily electronic records of the crematory's Continuous Opacity Monitor and Recorder shall be delivered to the City's Environmental Manager monthly, within seven (7) days after the end of each calendar month. Data shall be stored, and delivered to the City, in a format compatible with the City's computer system. The Owner shall sign a written, notarized certification under oath, in form acceptable to the City, of the accuracy and truth of the original electronic records of the Continuous Opacity Monitor and Recorder at the time of each such submission.

C. The Owner shall maintain written records showing the number of cremations per day, the weight of each body (or portions thereof) cremated, and time of day of each cremation ("Cremation Records"). The Owner shall sign a written, notarized certification under oath, in form acceptable to the City, of the accuracy and truth of the Cremation Records. The sworn certification and the Cremation Records shall be submitted to the City's Environmental Manager simultaneously with the monthly submission of records of the Continuous Opacity Monitor and Recorder.

D. The Operator must be trained and annually certified by the manufacturer of the furnace. A trained, certified Operator must be physically present, and in active supervisory control, at all times during the cremation process and cool down periods.

E. The Operator shall immediately notify the City's Environmental Manager, by telephone or fax, each time the opacity standard is exceeded and immediately take corrective action to stop the violation. In addition, no later than 11:00 a.m. on the next business day after each instance in which the opacity standard is exceeded, the Owner shall submit to the City's Environmental Manager a written report describing in detail the cause of the exceedance, corrective measures taken, and the actions the Owner will implement to prevent a reoccurrence of the exceedance. The written report shall contain a signed, notarized certification under oath, in form acceptable to the City, of the accuracy and truth of the written report.

F. The Owner shall keep all electronic and written records required by this ordinance for at least three years. The records shall be kept in a place which is reasonably safe from destruction or theft and shall be open to inspection by the City.

G. It shall be unlawful to submit false information, records, certifications, reports or statements to the City, or to change, alter, deface in any way, discard or destroy the records of the Continuous Opacity Monitor and Recorder, the Cremation Records, or reports that the opacity standard has been exceeded.

H. It shall be unlawful to tamper with, or in any way impede or interfere with the operation of, the Continuous Opacity Monitor and Recorder.

5.25.040 Licenses/Permits Required

A. License Required. It shall be unlawful to operate a crematory without the Owner first having obtained from the City's Department of Public Works ("Public Works Department") an annual license to do so. No license shall be issued without the written concurrence of the City's Environmental Manager. License fees for the operation of a crematory shall be established, and from time to time may be changed, by resolution of the City Council. All crematories existing within the City at the time this ordinance is enacted shall obtain a license within 150 days of the effective date of this ordinance.

B. Initial License Issuance. Any person who wishes to obtain a license to operate a crematory shall demonstrate to the City that the crematory will be located, constructed and will operate in compliance with all applicable laws and regulations. An applicant for a license shall submit to the Public Works Department such information as it may reasonably require concerning the issuance and good standing of all necessary state or federal air permits, the structure and components of the crematory, the methods and procedures to be used to operate and control the crematory, hours of operation, anticipated emissions, emission control equipment, preventative maintenance program, training of the operator(s), regulatory and statutory compliance history, past and present locations of any other crematories owned or operated, location and surroundings, zoning, and such other information as may be reasonably required by the Public Works Department. The City may, in its sole discretion, place operating or other conditions on the issuance of a license. The City, in its sole discretion, may deny a license to operate a crematory to any person, or for any crematory, that: a) has not demonstrated to the City that the crematory is located, constructed, or will operate in compliance with all applicable laws and regulations; b) has failed to submit to the City any information reasonably required; or c) has a record of violating, or noncompliance with, laws and regulations applicable to the operation of a crematory in another location(s).

C. Reissuance of License. An applicant for reissuance of a license shall submit to the Public Works Department such information as it may reasonably require concerning the issuance and good standing of all necessary state or federal air permits, the structure and components of the crematory, the methods and procedures to be used to operate and control the crematory, hours of operation, anticipated emissions, emission control equipment, written proof of Annual Service within the preceding twelve (12) months, preventative maintenance program; training of the operator(s), regulatory and statutory compliance history, and such other information as may be reasonably required by the Public Works Department. The City may, in its sole discretion, place operating or other conditions on the reissuance of a license. The City, in its sole discretion, may deny reissuance of a license to operate a crematory to any person, or for any crematory, that: a) has not demonstrated to the City that the crematory is located, constructed, or operates in compliance with all applicable laws and regulations; or b) has violated any provisions of this Chapter in the preceding twelve (12) months; or c) has failed to pay within 30 days any fine imposed under this ordinance.

D. Processing of License Application. The Public Works Department shall approve, approve with conditions, or deny, an application for an annual license within 60 days from the time the application is deemed complete by the City. A denial shall be in writing, contain a description of the reasons for the denial, and shall be sent to the applicant by certified mail, return receipt requested, at the address specified in the application. An applicant shall have 30 days from mailing of a denial within which to correct the deficiencies. If the needed corrections are not made within the allowed period, the denial of the application shall be deemed final. If the applicant corrects the deficiencies to the reasonable satisfaction of the City, the denial shall be retracted and the application shall be approved. All applications for an annual license must be submitted sufficiently in advance of applicable deadlines, or license expiration dates, to permit the process described in this paragraph to fully take place before the expiration of the applicable deadline or license expiration date.

E. Change of Control. Any person who purchases or otherwise acquires control of a crematory shall notify the City in writing of the change of ownership or control, including in the notice the effective date of the change as well as the name, address and telephone number of the new owner or person in control. This notice shall be provided to the City's Environmental Manager no less than ten (10) days after the effective date of the change in ownership or control.

F. Submission of Plans and Specifications. The Owner shall submit to the Public Works Department detailed plans and specifications before any crematory is constructed, modified, remodeled, extended or enlarged. The Public Works Department must approve the plans and specifications in writing before any such work is commenced. An appeal from any order (or the failure to issue an order when one is called for), requirement, decision or determination made by the City Building Official or his authorized representatives or other administrative officials shall be subject to the requirements and procedures of Chapter 14.12 of the City of Lakewood Municipal Code.

G. Appeal. In the event a license application is denied, or conditions are placed on the issuance of a license, by the Department of Public Works, the applicant may appeal the decision as set forth in Section 5.25.050.

5.25.050 Appeal of license application denial.

A. In the event that the Public Works Department denies a license application, or places conditions on the issuance of a license, an applicant shall have the right to a quasi-judicial hearing before the City Manager or his designee for the purpose of appealing the Department's administrative decision. A written request for a hearing shall be made to the City Manager or his designee within ten (10) days of the mailing date of the Department's written findings and decision denying the license application. The hearing shall be conducted within fourteen (14) days of the City Manager's or his designee's receipt of the written request for a hearing unless a later date is requested by the applicant.

B. Upon receipt of a timely request for a hearing, the City Manager or his designee shall schedule a hearing and notify the applicant of the date, time, and place of the hearing. Such notification shall be made by the City by telephone and a written notice shall also be mailed or delivered to the applicant at the applicant's address shown in the application. An applicant may be represented at the hearing by an attorney or other representative. An applicant or the City may request a continuation or postponement of the hearing date.

C. At the hearing, the City Manager or his designee shall hear and consider such evidence and testimony presented by the City, the applicant, or any other witnesses presented by the City or the applicant which are relevant to the stated reason and basis for the Department's denial of the license application. The City Manager or his designee shall conduct the hearing in conformity with quasi-judicial proceedings and shall permit the relevant testimony of witnesses, cross-examination, and presentation of relevant documents and other evidence. The hearing shall be recorded stenographically or by electronic recording device. Any person requesting a transcript of such record shall pay the reasonable cost of preparing the record.

D. Not less than fourteen (14) days following the conclusion of the hearing, the City Manager or his designee shall send a written order by certified mail, return receipt requested, to the applicant at the address as shown on the application. The order shall include findings of fact and a final decision concerning the approval or denial of the application. In the event that the City Manager or his designee concludes that the application is approved, such approval shall constitute approval by the Department, and the applicant may seek issuance of a license in accordance with this Chapter.

E. The order of the City Manager or his designee made pursuant to this section shall be a final decision and may be appealed to the District Court pursuant to Colorado Rules of Civil Procedure 106(a)(4). For purposes of any appeal to the District Court, the City Manager's or his designee's decision shall be final upon the earlier of the date of the applicant's receipt of the order or four (4) days following the date of mailing.

5.25.060 Suspension or Revocation of license.

A. The City Manager or his designee may suspend, revoke, modify, or place conditions on the continuation of a license upon a finding that the Licensee has violated any of the provisions of this Chapter.

B. Nothing in this Chapter shall prohibit the City from taking any other enforcement action provided for by the Lakewood Municipal Code, the laws of the State of Colorado, or of the United States.

C. A licensee shall be entitled to a quasi-judicial hearing before the City Manager or his designee if the City seeks to suspend, revoke, modify or place conditions on a license based on a violation of this Chapter.

1. When there is probable cause to believe that a licensee has violated or permitted a violation of this Chapter to occur, the City Attorney may file a written complaint with the City Manager or his designee setting forth the circumstances of the violation.

2. The City Manager or his designee shall send a copy of the complaint by certified mail, return receipt requested, to the licensee at the address as shown on the license application, together with a notice to appear before the City Manager or his designee for the purpose of a hearing to be conducted at a specified date and time and at a place designated in the notice to show cause why the licensee's license should not be suspended, revoked, modified or subjected to new conditions. Such hearing shall be held on a date not less than fourteen (14) days following the date of mailing of the complaint and notice to the licensee. A licensee may be represented at the hearing by an attorney or other representative.

D. At the hearing, the City Manager or his designee shall hear and consider such evidence and testimony presented by the City enforcement officers, the City, the licensee, or any other witnesses presented by the City or the licensee which are relevant to the violations alleged in the complaint. The City Manager or his designee shall conduct the hearing in conformity with quasi-judicial proceedings and shall permit the relevant testimony of witnesses, cross examination, and presentation of relevant documents and other evidence. The hearing shall be recorded stenographically or by electronic recording device. Any person requesting a transcript of such record shall pay the reasonable cost of preparing the record.

E. The City Manager or his designee shall make written findings of fact from the statements and evidence offered and shall reach a conclusion as to whether the alleged violations occurred. Such written findings and conclusion shall be prepared and issued not less than fourteen (14) days following the conclusion of the hearing. If the City Manager or his designee determines that a violation did occur which warrants suspension, revocation, modification or conditioning of the license pursuant to this section, he shall also issue an order suspending, revoking, modifying or placing conditions on the license. A copy of the findings, conclusion, and order shall be mailed to the licensee by certified mail, return receipt requested, at the address shown on the license application.

F. For purposes of any appeal to the District Court, the City Manager's or his designee's decision shall be final upon the earlier of the date of the applicant's receipt of the findings, conclusion, and order or four (4) days following the date of mailing of the City Manager's or his designee's decision. The order of the City Manager or his designee shall be a final decision and may be appealed to the District Court pursuant to Colorado Rules of Civil Procedure 106(a)(4).

G. In the event of suspension, revocation, modification, conditioning, or cessation of business, no portion of the license fee shall be refunded.

H. Any person whose license is suspended, revoked, modified or conditioned under this section shall be required to pay the costs including, but not limited to, attorney fees, expert witness and/or consultant fees, incurred by the City to enforce this ordinance.
5.25.070 Compliance and Enforcement

A. Inspections and Enforcement Authority. The City, through its Environmental Manager, his or her designee, and/or Code Enforcement Officers, shall conduct inspections, investigations, tests and/or audits of all crematories in the City at such times and under such circumstances as the City deems necessary. The Environmental Manager, his or her designee, and/or Code Enforcement Officers, are authorized to issue citations for violations of this ordinance. It shall be unlawful to hinder, prevent or refuse to permit any inspection, investigation, test and/or audit performed in connection with the provisions of this ordinance. In the event that entry into a crematory for the purpose of inspection or investigation is denied, the City may apply to the Municipal Court or the State District Court for a warrant to permit the entry, inspection or the collection of evidence.

B. Violations. Any failure to comply with this Chapter shall constitute a violation of this ordinance. Each incident, and each day, of non-compliance shall be separate violations. Each violation of this ordinance shall be punishable by a fine of not more than $1,000.00, or confinement for a period not to exceed 365 days, or both. Additionally, violations of this ordinance are declared to be a nuisance within the meaning of Chapter 9.80 of the Lakewood Municipal Code.

C. Costs and Charges. Any person who violates this ordinance shall be required to pay the costs and expenses incurred by the City in any civil action to enforce this ordinance including, but not limited to, attorney, expert witness and consultant fees. Such costs and expenses may be collected by the City in any civil action brought to enforce this ordinance or separately in any action at law.

Section 2. This Ordinance shall take effect thirty (30) days after final publication.

I hereby attest and certify that the within and foregoing ordinance was introduced and read on first reading at a regular meeting of the Lakewood City Council on the 22nd day of July, 2002; published in full in the Lakewood Sentinel on the 25th day of July, 2002; set for public hearing on the 12th day of August, 2002; read, finally passed and adopted by the City Council on the 12th day of August, 2002; and signed and approved by the Mayor on the 13th day of August, 2002.

Stephen A. Burkholder, Mayor

ATTEST:
Margy Greer, City Clerk

Approved as to form:
City Attorney

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