Fresno Municipal Code Art. 4 Solid Waste and Recycling Facilities Ordinance

This article shall be known as the "City of Fresno Solid Waste and Recycling Facilities Ordinance." (Added Ord. 2003-100, § 2, eff. 1-18-04).

Unless the particular provision or the context otherwise requires, the definitions and provisions contained in this section shall govern the construction, meaning, and application of words and phrases used in this article and, except to the extent that a particular word or phrase is otherwise specifically defined in this section, the definitions and provisions contained in Article 2 of Chapter 1 of this Code shall also govern the construction, meaning, and application of words and phrases used in this article, unless the particular provision or the context otherwise requires. The definition of each word or phrase shall constitute, to the extent applicable, the definition of each word or phrase which is derived from it, or from which it is a derivative, as the case may be.

(a) "City inspectors" shall mean any person whether employed or contracted by the city to conduct inspections for purposes of determining compliance with the Code and/or to enforce provisions of the Code.

(b) "Director" shall mean the director of any department of the city, and any of his or her agents or representatives, who has been delegated to enforce and/or administer the provisions of this article by the City Manager.

(c) "Operations" shall mean all business activities that may be defined in this section as a recycling facility or solid waste facility that are conducted by applicants and or permit holders under this article.

(d) "Permit" shall mean a recycling facility permit issued under the authority and procedures of this article.

(e) "Recycling Facility" shall mean any facility that is used in the process of collecting, sorting, cleansing, treating, processing, reconstituting, or storing materials that would otherwise become solid waste, as defined in this section, 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.

(f) "Solid Waste" shall be defined as found at California Public Resources Code section 40191, as amended.

(g) "Solid Waste Facility" shall be defined as found in California Public Resources Code section 40194, as amended. (Added Ord. 2003-100, § 2, eff. 1-18-04).

The Council finds that recycling and solid waste facilities are especially prone to present a risk to the public's health and safety and therefore require the adoption of this ordinance based upon the following findings:

(a) In January 2003, a fire occurred at a recycling facility in the city that was operating under, although not in conformance with, a conditional use permit. The fire lasted for more than a month and required the services of Federal, State and private fire fighting agencies and more than two and a half million dollars to suppress. The fire had a serious health impact to the residents of the surrounding community and the city and resulted in Council declaring a local state of emergency.

(b) After the fire was suppressed, the Mayor formed the "Southwest Fire Process Improvement Task Force" (hereinafter "Task Force"). The Task Force was charged with answering two questions: (1) how the city could prevent this type of fire or similar emergency from recurring in the city, and (2) how to respond to future similar emergencies in an effective, adequate and timely manner.

(c) In April of 2003 after finishing its investigation, the Task Force issued a report concluding that the city's current ordinances, codes, and policies relating to conditional use permits and enforcement activities were inadequate. The Task Force found that the above local ordinances and policies were in need of improvement, from the initial approval and issuance of conditional use permits to the monitoring, code enforcement/on-site inspections, and legal action to be taken against violators of conditional use permits.

(d) The Task Force report included twenty-four recommendations to address the identified areas of concern.

(e) The fourth recommendation to the Task Force Report provided that: "The City shall adopt an Ordinance apart from the Zoning Ordinance, in the Health and Safety Chapter, that addresses specifically recyclable material operators within the City of Fresno. Such Ordinance shall include remedies and punishments, including criminal and financial penalties for violations."

(f) The seventh recommendation to the Task Force Report provided that: "The City shall amend appropriate sections of the FMC and related Zoning Ordinances to require a monitoring, on-site inspection/reporting system for all land uses related to waste/recyclable facilities. The amendments shall include requirements on CUP's for on-site inspections by either appropriate City staff or contracted inspectors. It is also recommended that the costs of these inspections be borne by the business operators."

(g) On April 29, 2003, Council voted to implement the results of the Task Force report.

(h) In the past three years, the city has experienced at least twelve fires at recycling facilities within the City of Fresno at six different recycling and/or solid waste facilities in the City of Fresno.

(i) In May of 2002, Council directed the City Manager to form an internal task force to make a recommendation for a proactive CUP enforcement program.

(j) In studying the issues regarding the formation of an internal task force for proactive enforcement, staff identified waste storage and recycling facilities as one of four sensitive land uses and businesses that most directly affect public health, safety and welfare. (Added Ord. 2003-100, § 2, eff. 1-18-04).

This ordinance is adopted with the intent:

(a) To implement the fourth and seventh recommendations to the Task Force Report; and

(b) To be consistent with the purpose of the California Integrated Waste Management Act (Public Resources Code § 40052) to reduce, recycle, and reuse solid waste generated in the city to the maximum extent feasible, and to ensure that solid waste landfills and solid waste management facilities are environmentally safe; and

(c) To provide reasonable land use conditions and restrictions on solid waste management facilities in order to prevent or mitigate potential nuisances and health and safety problems; and

(d) To be consistent with, and impose restrictions in addition to, the California Integrated Waste Management Act (Public Resources Code §§ 40000, et seq.). (Added Ord. 2003-100, § 2, eff. 1-18-04).

If any section, sentence, clause or phrase of this article is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portion of this article. Council hereby declares that it would have passed this ordinance and adopted this article and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. (Added Ord. 2003-100, § 2, eff. 1-18-04).

The Director may make rules and regulations which are not inconsistent with the provisions of this article and which may be necessary or desirable to aid in the administration or enforcement of the provisions of this article, including all necessary policies and procedures for the issuance of the permits, administration of this article, collection of fees and bonds and/or indemnities, or proof(s) of insurance. (Added Ord. 2003-100, § 2, eff. 1-18-04).

No person or business may operate a solid waste or recycling facility, as defined in this article, unless they hold a Solid Waste and Recycling Facilities Permit. The Solid Waste and Recycling Facilities Permit shall include conditions on the permit holder's operations as provided in this article for the permit holder's type of operation. The permit shall not be transferrable. The permit shall be valid for one year. The city may provide a program to renew permits for permit holders on an annual basis upon the payment of a fee to defray the city's costs. (Added Ord. 2003-100, § 2, eff. 1-18-04).

The Director shall cause an investigation to be made of the facts stated in an application for a recycling facility permit, and shall within forty-five days, subject to the completion of the necessary background checks by local, state and federal agencies and completion of the review of the operational plan and site plan by the city, issue a permit to the applicant if the Director finds that the applicant has not had a permit revoked for good and sufficient cause within the last twelve months and has never had a permit revoked for cause involving gross negligence or moral turpitude; that the applicant has not been convicted of a crime involving fraud, or moral turpitude within the last five years; that the statements made in the application are probably true; that the permit fee has been paid as provided in the Master Fee Schedule; and that no fact exists which would be cause for revocation of the permit under Section 10-414. Applications shall be processed in order of receipt. A decision to deny a permit shall be issued in writing with the basis for the denial, and if feasible, shall propose measures to cure any defects in the application. An applicant may appeal the decision to deny a permit under the procedures in Chapter 1, Article 4 of this Code. If no appeal is filed in a timely manner, the decision of the Director shall be final. (Added Ord. 2003-100, § 2, eff. 1-18-04).

Applicants and permit holders shall be required to provide a notice of all criminal, civil and administrative convictions, judgments or penalties imposed on them for violations of Federal, State or local laws related to unlawful storing or dumping of hazardous or non-hazardous wastes or transporting, handling, generating or storing of hazardous materials. The Director may reject an application or suspend or revoke a permit, if the Director finds that on the basis of the number, seriousness or recentness of the convictions, judgments or penalties, there is reason to believe that the applicant or permit holder cannot be trusted to comply with this article and/or the Code or the applicant or permit holder poses a threat to the public health, safety or welfare. Failure by an applicant or a permit holder to report any convictions, judgments or penalties shall be grounds for suspension and/or revocation of the permit. (Added Ord. 2003-100, § 2, eff. 1-18-04).

No permit shall be issued without the applicant submitting an operational plan and a site plan for the applicant's proposed operations that have been approved to meet the requirements of this article, any other provision of the Code, any zoning condition placed on the property in a development entitlement, and that are not in conflict with Federal and State laws for operation of a solid waste and/or recycling facility. At the request of the applicant, if an operational plan and/or site plan has already been submitted to the city for a permit other than a Solid Waste and Recycling Facilities Permit, the city may consider the operational plan and/or site plan on file with the city to determine if it is sufficient to meet the requirements of this section. (Added Ord. 2003-100, § 2, eff. 1-18-04).

All applicants for a permit are required to pay a fee to cover all of the city's costs to implement, enforce and administer the provisions of this article, including but not limited to, administrative costs to review applications and issue permits, inspection costs, monitoring costs, and or enforcement costs. This fee will be provided in the Master Fee Schedule. If the city establishes a permit renewal system as allowed under Section 10-407, the permit holder shall be required to pay a fee upon renewal of their permit as provided in the Master Fee Schedule. (Added Ord. 2003-100, § 2, eff. 1-18-04).

No permit shall be issued unless the applicant can establish compliance with the Zoning Ordinance of the City of Fresno and the Fresno Fire Code. All permits shall include a condition requiring the permit holder to comply with the Zoning Ordinance of the City of Fresno and the Fresno Fire Code. A violation of the Zoning Ordinance of the City of Fresno or the Fresno Fire Code is sufficient basis for suspension or revocation of the permit. (Added Ord. 2003-100, § 2, eff. 1-18-04).

In the event the applicant does not hold record title interest in the property upon which the solid waste facility or recycling facility is intended to be operated, no permit shall be issued until the record title owner(s) sign a copy of the application for the permit and acknowledges that he, she or they understand the applicant's intended use of the property, that the city may record the permit with the County Recorder's Office, and the property owner will be responsible for any public nuisance created or maintained on the property, including a violation of this article, as authorized in the City of Fresno Public Nuisance Abatement Ordinance. Upon approval, a copy of the permit may be recorded in the County Recorder's Office. Upon application by the property owner or other interested party, the city shall release the recording of the permit when the permit holder establishes to the satisfaction of the Director that a solid waste or recycling facility is no longer operating on the property. The applicant shall be charged the cost associated with recording the permit and the release of the permit. (Added Ord. 2003-100, § 2, eff. 1-18-04).

Any permit issued under this chapter may be suspended or revoked for good cause, including, but not limited to the following:

(a) False Statement in Application. If it is determined that the permit holder made any false statement of material fact in the application for the permit, or other document for which the permit approval was based.

(b) Grounds for Denial of Permit. If it is determined that any facts exist that would have been grounds for denial of the permit.

(c) Violation of Condition of Permit. If it is determined that the permit holder violated a condition placed on the permit or failed to comply with an order issued under Section 10-419.

(d) Violation of the Code. If it is determined that the permit holder violated any requirement of this Code in connection with the exercise of the permit, including, but not limited to, violation of this article, the City of Fresno Public Nuisance Abatement Ordinance, and/or the Zoning Ordinance of the City of Fresno.

(e) Conducting Business in an Illegal or Disorderly Manner; Endangering Public. If it is determined that the permit holder conducts his or her business in an illegal or disorderly manner or in any manner which endangers the public health, safety or welfare.

(f) Conviction or Determination Involving Fraud or Deceit. If it is found that the permit holder within the last five years has been found guilty of a crime involving fraud, deceit or dishonesty or has been determined in a final decision in any civil matter or administrative proceeding to have practiced or committed fraud, deceit or dishonesty. If it is found that the permit holder has within the last five years been convicted of a crime or other offense involving moral turpitude.

(g) Insolvency. If it is determined that the permit holder is bankrupt, financially insolvent or unstable and that, in the exercise of reasonable judgment, it appears likely that because of their financial condition, the permit holder will provide inadequate service under his permit.

(h) Disservice to the Public. If it is determined that the permit holder's service to the public is so inadequate or inefficient that, in the exercise of reasonable judgment, it appears that it amounts to a disservice to the public. (Added Ord. 2003-100, § 2, eff. 1-18-04).

The following procedures shall be used to revoke or suspend a Solid Waste and Recycling Facilities Permit:

(a) Notification of Suspension or Revocation. Notice of suspension or revocation of any permit shall be in writing from the Director and shall state the reasons for the suspension or revocation, shall state the effective date of revocation or suspension, and shall provide notice of the right to appeal. If the Director determines that immediate cessation of activities under the permit is necessary to protect the public's health, safety or welfare, the effective date shall be immediate upon notification. Notification of suspension or revocation shall either be served upon the permittee personally, or mailed by certified mail, return receipt requested, addressed to the permittee at the address appearing on the permit. Notice shall be deemed to be received immediately upon personal service or within three days of service by mail. If required upon revocation, the permit holder shall turn over his or her permit to the city.

(b) Compliance Order. Where the cause for revocation or suspension is found to be a correctable violation of the permit, this article, or the Code or where the permit, this article, or the Code does not otherwise mandate revocation or suspension, the director may, as an alternative to revocation or suspension, issue a compliance order allowing the permit holder an opportunity to come into compliance within a reasonable period of time subject to threat of suspension or revocation. A compliance order shall set forth a description of each violation and specify the action(s) necessary to correct each violation by the date specified. A compliance order shall not be appealable and shall be served under the procedures in subsection (a).

(c) Appeal to the City Hearing Officer. Any decision by the Director to suspend or revoke a permit may be appealed to under the procedures in Chapter 1, Article 4 of this Code. If no appeal is filed in the time prescribed, the decision of the Director shall be final.

(d) Appeal on Automatic or Summary Suspension. If a permit is automatically suspended under procedures in this article, or suspended or revoked with an immediate effective date from notification, the permit holder shall have the right to an appeal within four business days and shall be given, unless waived by the permit holder, at least twenty-four hours written notice of the date, time and place of the hearing.

(e) Stay Pending Appeal. The filing of an appeal to the City Hearing Officer shall stay the effective date of the suspension or revocation until such time as the appeal is finally decided. Notwithstanding the above and Section 1-406, a suspension or revocation shall not be stayed during the appeal process if it is determined by the Director that immediate cessation of the permit holder's business activities under his or her permit is necessary to protect the public's health, safety or welfare. If the effective date is not or will not be stayed pending the outcome of an appeal, the permit holder shall be notified in the notice of revocation or suspension.

(f) New Application After Revocation. If the permit of any person is revoked, no permit shall be granted to such person to conduct or carry on any such business within twelve months after such revocation.

(g) Cumulative Remedy. Any decision to revoke or suspend a permit based upon a Code violation shall be a cumulative remedy to any other remedy provided by this Code, policies adopted under this Code, or by law.

(h) Monies Owed Payable Upon Revocation. In the event a permit is revoked, all sums owed the city shall immediately become due and payable, and no fees and charges shall be refundable or apportioned by the city. (Added Ord. 2003-100, § 2, eff. 1-18-04).

In addition to any specific regulations provided in this section, general requirement in this article, or regulations adopted under section 10-406, all permits are subject to, at minimum, one annual inspection by city inspectors from both the fire department and the code enforcement division, and are conditioned on compliance with all applicable federal, state and local laws (including, the code and this article).

(a) Wood Product Recyclers. (Reserved).

(b) Scrap Metal Recyclers. (Reserved).

(c) Construction and Demolition Recyclers. (Reserved).

(d) Household Product Recyclers/Redemption Centers. (Reserved).

(e) Tire Recyclers. (Reserved).

(f) Hazardous Material Recyclers. (Reserved).

(g) Solid Waste Facilities (Reserved).

(h) Auto Wrecking and/or Dismantling Facilities. (Reserved).

(i) Automobile Parts and Materials Recyclers. (Reserved).

(j) Transit Stations. (Reserved). (Added Ord. 2003-100, § 2, eff. 1-18-04).

(a) Monitoring. The permit holder shall establish a program to monitor its operations to ensure compliance with the Code and this article. The monitoring program shall be described in the operational plan submitted under Section 10-410.

(b) Self-Certifications. All permit holders shall on a quarterly basis, on the last day of March, June, September, and December, file with the city a self-certification that they have inspected their operations and operational plans and that they are in compliance with all provisions of this article. Failure to file a self-certification and/or the filing of a self-certification with inaccurate information is a violation of this article and the Code subject to all remedies provided in this article and the Code for violations of the Code and/or this article.

(c) Reporting. All permit holders shall report violations of the conditions of their permits, this article or the Code, related to their operations, to the city within five calendar days, or within twenty-four hours if the violation presents an imminent threat to the public's health and safety, specifically including, but not limited to, fires or hazardous spills. (Added Ord. 2003-100, § 2, eff. 1-18-04).

(a) Inspections.

(1) Random inspections. As a condition of the permit, all permit holders under this article shall allow any city inspector or enforcement officer on to their premises to conduct inspections at any time during the permit holder's normal business hours. Permit holders are required to make documents related to their operations and their permit available for inspections.

(2) Regular inspections. All permit holders under this article shall allow city inspectors to conduct regular inspections of their operations as a condition of the permit as provided in Section 10-416 or policies adopted under Section 10-406. If required under Section 10-416 or under policies adopted pursuant to Section 10-406, permit holders shall also make documents related to their operations available during inspections.

(b) Notice of Non-Compliance. If, after an inspection, the city inspector or officer finds that the permit holder has violated the conditions of their permit or other requirements under this article or the Code, and it is determined to be a correctable violation, the city may issue a notice of non-compliance advising the permit holder of the violation and how it may be remedied with a deadline for correction. The notice of non-compliance shall be served by regular mail to the address provided in the permit holder's application. A notice of non-compliance is not an enforceable order and is not appealable, but may be used to provide proof of notice for purposes of enforcement under this article or the Code.

(c) Compliance Orders. If, after an inspection, the city inspector or officer finds that the permit holder has violated the conditions of their permit or other requirements under this article or the Code, and the violation is determined to be correctable, the city may issue an order of compliance pursuant to Section 10-414.

(d) Suspension or Revocation. If, after an inspection, the city inspector or officer finds that the permit holder has violated the conditions of their permit or other requirements under this article or the Code, the city may suspend or revoke the permit pursuant to Section 10-414.

(e) Penalties. If, after issuing an order of compliance, the permit holder has failed to meet the schedule for achieving compliance and or the conditions provided in the order of compliance, and the permit holder is in violation of the conditions of their permit or other requirements under this article or the Code, the city may impose administrative civil penalties upon the permit holder of up to twenty-five hundred dollars ($2500) per day per violation until the permit holder complies with the conditions in the permit and or the requirements of this article or the Code.

(f) Automatic Suspension. (Reserved).

(g) Automatic Revocation. (Reserved). (Added Ord. 2003-100, § 2, eff. 1-18-04).

In addition to the enforcement tools provided in Section 10-418, any violation of this article shall be a public nuisance and may be enforced or abated under the Public Nuisance Abatement Ordinance (Chapter 10, Article 6). Any contrary provisions of the above or the Code notwithstanding, the following remedies are available for violations of the conditions of a permit or this article:

(a) Abatement. The city may abate violations of an order of compliance, conditions of a permit and/or this article. Absent an imminent threat to the public's health and safety, the city must serve the permit holder and the property owner with an order of abatement prior to abating the violation. An order of abatement must be served by certified mail at least eighteen days before the city abates. An order of abatement may be appealed to the City Hearing Officer under Article 4 of Chapter 1. An abatement order, if reasonably necessary, may order the cessation and/or suspension of continued operations, may limit operations, or may suspend limit occupancy of the operational facilities and/or property.

(b) Civil. The City Attorney may file a civil lawsuit to enforce this article.

(c) Criminal. Any violation of this article is a misdemeanor and the violator may be cited under Section 1-304. (Added Ord. 2003-100, § 2, eff. 1-18-04).

Any and all unrecovered costs incurred by the city or unrecovered civil penalties imposed by the city under this article may be recovered under the Cost and Penalty Recovery Ordinance (Chapter 1, Article 5). In addition to any other costs that may be collected under the Cost and Penalty Recovery Ordinance and notwithstanding any provisions of the Cost and Penalty Recovery Ordinance to the contrary, the city may recover any and all costs incurred to suppress a fire at a recycling and/or solid waste facility covered by this article when the fire involves the recycling or solid waste materials or product. Fire suppression costs may be recovered in the above circumstances regardless of whether or not: the facility is permitted, the facility is in violation of this Code, or the facility operator created, caused, committed or maintained the fire. The facility operator will not be liable for fire suppression costs as provided above if he or she can prove by a preponderance of the evidence that the cause of the fire was outside of his or her control. (Added Ord. 2003-100, § 2, eff. 1-18-04).

Any remedy provided under this article is cumulative to any other remedy provided in equity or at law.

(Added Ord. 2003-100, § 2, eff. 1-18-04).