Fremont Municipal Code Art. VII Construction and Demolition Debris Diversion and Recycling Requirements

These definitions apply to this article only.

“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 undertakes 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” (C&D) means materials generated as a result of construction, remodeling, repair or demolition on pavement, houses, commercial buildings and other structures as well as construction job sites, including without limitation discarded packaging, containers and waste construction materials, whether brought on site for fabrication or used in construction or resulting from demolition, excluding liquid waste, hazardous waste, and medical and infectious waste. Construction and demolition debris generally contains both municipal solid waste and recyclable materials.

“Conversion rate” means the rate set forth in the standardized conversion rate table approved by the city pursuant to this article for use in estimating the volume or weight of materials.

“Covered project” has the meaning set forth in Section 8.40.580.

“Debris disposal and diversion report” means a report, to be completed and submitted by the applicant at the conclusion of a covered project, which documents the total tonnage of materials generated by the construction or demolition project, and the tons diverted and/or landfilled.

“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.

“Disposal” means the management of solid waste through landfilling or transformation at permitted solid waste facilities.

“Diversion” means activities which reduce or eliminate the amount of solid waste from solid waste disposal for purposes of this code.

“Diversion requirement” means the level of reuse and/or recycling required in the residential mandatory measures and nonresidential mandatory measures, as applicable, as stated in the most current version of the construction waste reduction, disposal and recycling sections of the California Green Building Standards Code. If at any time the city of Fremont chooses to increase the diversion requirement more than these described mandatory measures, the stricter requirement will apply.

“Divert” means to use material for any purpose other than disposal in a landfill, including reuse and recycling.

“Exempt project” has the meaning set forth in Section 8.40.580.

“Project” means any activity involving construction, demolition, or renovation in the city which requires issuance of a demolition permit, building permit or other similar permit from the city. “Project” also includes city public project construction, demolition or renovation.

“Project diversion requirement” means “diversion requirement” as defined in this section or such other diversion requirement as may be established for a project by the WHP compliance official pursuant to the exception process set forth in Section 8.40.610.

“Recycle” or “recycling” has the same meaning as that set forth in Section 8.40.040.

“Renovation” means any change, addition, or modification in an existing structure.

“Reuse” means using an object or material again, either for its original purpose or for a similar purpose, without significantly altering the physical form of the object or material, either on the current construction site or for later reuse off site.

“Salvage” or “deconstruction” means the controlled removal of construction and demolition debris from a construction or demolition site for the purpose of reuse or storage for later recycling or reuse.

“Self-haul” or “self-hauling” means a generator who transports his or her own permitted materials by using a vehicle owned by that generator and driven by the generator or the generator’s employees rather than using the hauling services of the franchise collector or a third-party hauling company.

“Waste handling plan (WHP)” means a documented plan to manage all the materials generated on a project, to be completed and submitted by the applicant or contractor for any covered project prior to issuance of a building permit, demolition permit or other similar city permit.

“WHP compliance official” means the manager of the environmental services division or designee. (Ord. 11-2021 § 1, 11-16-21.)

(a) Covered Projects. Covered projects shall be those construction, alteration, renovation, and demolition projects that are subject to the mandatory measures, in the most current version of the construction waste reduction, disposal and recycling sections of the California Green Building Standards Code. Covered residential projects shall be the same projects that are subject to the residential mandatory measures, in the most current version of the construction waste reduction, disposal and recycling sections of the California Green Building Standards Code. Covered nonresidential projects shall be the same projects subject to the nonresidential mandatory measures, as stated in the most current version of the construction waste reduction, disposal and recycling sections of the California Green Building Standards Code.

(b) City-Covered Projects. All city construction, alteration, renovation, or demolition projects shall be subject to the nonresidential mandatory measures, found in the most current version of the construction waste reduction, disposal and recycling sections of the California Green Building Standards Code. Specific diversion requirements for city projects may also be reflected in the bid specifications issued by the city.

(c) Exempt Projects. The following projects are exempt from the requirements of this article:

(1) Projects where only one of the following separate permits is required:

(A) Roofing replacement.

(B) Electrical, mechanical or plumbing.

(C) Solar panel.

(D) Fire sprinkler systems.

(E) Wireless antenna.

(d) While not required, it shall be encouraged that at least 50 percent of all C&D debris from exempt projects be diverted. (Ord. 11-2021 § 1, 11-16-21.)

(a) Waste Handling Plan. Applicants for demolition, building, encroachment, grading or other similar permits for any covered project shall, prior to issuance of the permit, submit a properly completed waste handling plan (WHP). The completed WHP shall contain all of the following:

(1) The estimated type of C&D debris that the project will generate; and

(2) The estimated type of C&D debris to be diverted or not diverted, listed by each type of material; and

(3) The name of all haulers or facilities that the applicant proposes to use to collect or receive that material; and

(4) Contact information for the applicant, the project address and permit number.

(b) City-Covered Projects. The project manager or contractor of any city-covered project shall submit a properly completed waste handling plan to the WHP compliance official within 10 days of the notice to proceed, prior to or beginning any grading, encroachment, construction or demolition activities.

(c) Deconstruction. In preparing the WHP, applicants for covered projects that involve the removal of all or part of an existing structure shall consider deconstruction, to the maximum extent feasible, and shall where feasible make the materials generated available for salvage and reuse prior to demolition. (Ord. 11-2021 § 1, 11-16-21.)

(a) Compliance as a Condition of Approval. Compliance with the provisions of this article shall be listed as a condition of approval on any building or demolition permit for a covered project or city-covered project. Failure to include such a condition shall not relieve the applicant from compliance with this article.

(b) WHP Approval Required Prior to Permit Issuance. Notwithstanding any other provision of this code, no building, demolition or other similar permit shall be issued for any covered project unless, and until, the WHP compliance official has approved the WHP. Approval shall not be required, however, where an emergency demolition is required to protect public health or safety.

(c) Criteria for WHP Approval. The WHP compliance official shall only approve a WHP if he or she first determines that all of the following conditions have been met:

(1) The WHP provides all of the information set forth in Section 8.40.590; and

(2) The WHP indicates the diversion requirement will be achieved; and

(3) The WHP indicates that the contractor will use either the franchised hauler debris box service or self-haul the construction and demolition debris to approved recycling facilities.

(d) If the WHP compliance official determines that these conditions have been met, he or she shall mark the WHP “approved,” return a copy of the WHP to the applicant, and notify the building division that the WHP has been approved.

(e) WHP Disapproval. If the WHP compliance official determines that the WHP is incomplete or fails to indicate that the diversion requirements will be met, he or she shall:

(1) Return the WHP to the applicant with a statement of reason for disapproval and a request to correct, add to or explain the information, and resubmit for approval. (Ord. 11-2021 § 1, 11-16-21.)

(a) 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 exception at the time that he or she submits the WHP. The applicant shall indicate on the WHP 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.

(b) Meeting With WHP Compliance Official. The WHP 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. Based on the information supplied by the applicant, the WHP compliance official shall determine whether it is feasible for the applicant to meet the diversion requirement.

(c) Granting of Exception. If the WHP compliance official determines that it is infeasible for the applicant to meet the diversion requirements, he or she shall determine the feasible diversion options, if any, for the project which shall then be incorporated into the WHP as the project diversion requirement. The WHP compliance official shall return a copy of the WHP to the applicant marked “approved for exception” and shall notify the building division that the WHP has been approved.

(d) Denial of Exception. If the WHP compliance official determines that it is feasible for the applicant to meet the diversion requirement, he or she shall so inform the applicant in writing. The applicant shall have 10 business days to resubmit a WHP form in full compliance with Section 8.40.600. If the applicant fails to timely resubmit the WHP, or if the resubmitted WHP does not comply with Section 8.40.600, the WHP compliance official shall disapprove the WHP in accordance with Section 8.40.600. (Ord. 11-2021 § 1, 11-16-21.)

(a) Documentation. After the completion of any covered project or city-covered project, and as a precondition to issuance of a temporary or final certificate of occupancy by the city, the applicant shall submit to the WHP compliance official documentation that it has met the project diversion requirement as set forth in the WHP. This documentation shall include all of the following:

(1) Contact information for the applicant or contractor, the project name, address and permit number(s);

(2) A debris disposal and diversion report summary listing the total volume or weight generated by the project, actual volume or weight of C&D debris that was diverted by type of material and diversion method, and the actual volume or weight of C&D debris that was landfilled and not diverted; and

(3) Receipts from the approved haulers or facilities which collected or received project C&D debris showing the actual weight or volume of each material, and/or detail reports from the approved facility or vendor that generally match the same materials identified on the WHP; and within the date range that the permit was active; and

(4) To count toward meeting the diversion requirement, the documentation (receipts or detail reports) must include:

(A) Receipts/weight tags from approved haulers or approved recycling facilities;

(B) The city of Fremont officially listed as the city of origin;

(C) All of the materials generated by the project, including materials generated and hauled by subcontractors; and

(D) Receipts/weight tags that were generated within the date range that the permit was active; and

(5) Any additional information the applicant believes is relevant to determining its efforts to comply in good faith with this article.

(b) Weighing of Wastes. Applicants shall make reasonable efforts to ensure that all C&D debris diverted or placed in a landfill are measured and recorded using the most accurate method of measurement available. To the extent practical, all C&D debris shall be weighed by measurement on scales. Such scales shall be in compliance with all regulatory requirements for accuracy and maintenance. For C&D 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. The WHP compliance official shall review the information submitted under subsection (a) of this section and determine whether the applicant has complied with the project diversion requirement, as follows:

(1) Full Compliance. If the WHP compliance official determines that the applicant has fully complied with the project diversion requirement, he or she shall consider the requirement fulfilled.

(2) Good Faith Effort to Comply. If the WHP compliance official determines that the project 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. In making this determination, the WHP compliance official shall consider any relevant information provided by the applicant regarding the availability of markets for the C&D debris that was not diverted, the size of the project, and the documented efforts of the applicant to divert C&D debris. If the WHP compliance official determines that the applicant has made a good faith effort to comply with this article, he or she shall consider the project diversion requirement fulfilled.

(3) Noncompliance. If the WHP compliance official determines that the applicant has not made a good faith effort to comply with the project diversion requirements, the applicant shall be in violation of this article and shall be subject to enforcement as set forth in Section 8.40.640. (Ord. 11-2021 § 1, 11-16-21.)

An applicant may appeal a determination made by the WHP compliance official under this article to the city manager or person designated by the city manager to hear such appeals. To appeal, the applicant shall file a written appeal with the city clerk within 10 business days after the determination of the WHP compliance official, stating the reasons for the appeal. An appeal is limited to the following issues: (a) the granting or denial of an exception to the diversion requirements; and (b) whether the applicant has made a good faith effort to comply with the project diversion requirements. The city manager or designee shall hear the appeal within 30 calendar days and shall give 10 calendar days’ prior written notice to the applicant of the hearing date and time. Decisions of the city manager or designee shall be final, and the aggrieved party may seek relief from the decision only by complying with the requirements set forth in Section 1.30.010 et seq. (Ord. 11-2021 § 1, 11-16-21.)

In addition to the provisions of Article VI of this chapter (Section 8.40.530 et seq.), the following shall apply to violations of this article:

(a) Violation of any provision of this article is an offense subject to all of the provisions of Chapter 1.15 and the administrative remedy provisions of Chapter 1.20.

(b) For purposes of the administrative remedy provisions of this code, failure to fully comply with the hauling requirements, diversion requirements or proper documentation requirements shall result in a citation pursuant to Chapter 1.20.

(c) For purposes of the administrative remedy provisions of this code, the failure to comply or demonstrate good faith efforts to comply with all of the project diversion requirements shall result in a penalty to be assessed at the rate of $1,000 per ton of material that was to be diverted as set forth in the WHP, but was not demonstrated to have been diverted. (Ord. 11-2021 § 1, 11-16-21.)