HomeMy WebLinkAboutAdmin Order 58-95-11-F
ADMINISTRATIVE ORDER NO. 589511-F
of the
CITY MANAGER
OZONE PROTECTION
ADMINISTRATIVE RULE 6.725
OZONE PROTECTION ADMINISTRATIVE RULE R-6.725
R-6.725-A Purpose.
Sections 6.700 to 6.725 of the Eugene Code, 1971 were adopted to reduce the
sale and use of ozone depleting products within the city of Eugene through educating
the public about ozone-depleting products and available alternatives for those
products, and by prohibiting the sale and use of certain ozone-depleting products for
which safe and cost-competitive alternative products exist. These rules are intended
to implement the ordinance by establishing the process and criteria for determining
which ozone depleting products shall be prohibited, and the process for ensuring
enforcement of the prohibitions.
To further the goals of Sections 6.700 to 6.725 of the Eugene Code, 1971, the
City Manager will periodically publish a review of the actions taken by the City using
these rules and the educational efforts undertaken by the city. These reviews should
include available information about the reductions of ozone depleting chemicals
achieved by the rules, the economic impact of these reductions and the costs to the
City of administering the rules.
Section 6.710 of the Eugene Code identifies three categories of products (plastic
foam insulation products used in construction; other products containing HCFCs; and
pesticides containing HCFC 123, CFC 113, methyl bromide, or any other ozone-
depleting chemical which is installed with an agent containing HCFC 123, CFC 113 or
methyl bromide) for which the City Manager must make determinations as to the
existence of alternatives which are cost-effective and safe. If such alternatives exist,
then the City Manager, by rule, shall prohibit the sale and use of those products. If no
such alternatives exist, then the City Manager shall not prohibit their sale and use.
Section 6.710 also provides that the City Manager may prohibit the sale and use of
other types of ozone-depleting products, provided that safe and cost-effective
alternatives exist for those products. The Code also authorizes the City Manager to
determine that additional chemicals should be designated as ozone-depleting
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chemicals. These determinations shall be reflected in appendices to this rule.
Appendix A shall list those ozone-depleting products for which the Manager has
determined there exist safe and cost-effective alternatives. Appendix 8 shall list those
ozone-depleting products for which the Manager has determined there are not safe
and cost-effective alternatives. Appendix C shall list ozone-depleting chemicals.
Citizens can play an important role in the operation of this program. Section 6.725-C-
3 provides for citizens to request consideration of banning an ozone-depleting product
and allows citizens to provide information about safe and cost-competitive alternatives.
Section 6.725-C-4 provides for citizens to request reconsideration of a banned product
because new information shows that the alternative ozone-safe produce is either not
available, safe or cost competitive. Citizens may complain about violations of the
Ordinance (see R-6.725-F) and may appeal decisions about ozone-depleting products
(see R-6.725-C-5., R-6.725-F and R-6.725-H-1.). When the City proposes to ban or not
ban an ozone-depleting product, a public comment period will provide citizens the
opportunity to present information both for and against a proposed action.
R-6.725-B Definitions.
In addition to those words and phrases defined in Sections 6.700 to 6.725 of the
Eugene Code, 1971, as used herein, the following words and phrases mean:
Chlorofluorocarbon (CFC): A family of substances containing carbon,
fluorine, and chlorine, having no hydrogen atoms and no double bonds.
Commercial use: A product or process which uses or is utilized by a person
in the provision of services to another person or business.
Enforcement officer: The person designated by the City Manager to enforce
the provisions of Sections 6.700 to 6.725 and these rules.
Halon: A family of substances containing carbon, fluorine, and bromine,
having no hydrogen atoms and no double bonds.
Ozone depleting chemical: A chlorofluorocarbon (CFC),
hydrochlorofluorocarbon (HCFC), halon, methyl chloroform (1,1,1
trichloroethane), methyl bromide, carbon tetrachloride (tetrachloromethane) or
any chemical compound that hereafter is designated an "ozone depleting
chemicalll under Section R-6.725-E of these rules.
Ozone-depleting products: Any product containing an ozone-depleting
chemical or installed with the use of an ozone-depleting chemical, including
products employing ozone-depleting chemicals as blowing agents.
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Ozone-safe substitute: A product which meets the criteria contained in
section R-6.725-0-1 of this rule.
Person: Any individual, corporation, government agency, partnership, firm,
joint stock company, trust, association, or any other public or private entity
engaged in business or in providing a service in the City of Eugene, Oregon.
Sale or sell: A transaction where goods or services are delivered in return
for cash or a contractual obligation to pay.
R-6.725-C Establishment of Prohibited Ozone-Depleting Products.
1 . Based on the criteria contained in section R-6. 725-0, the City Manager shall
determine whether safe and cost-effective alternatives exist for (1) all plastic foam
insulation products, (2) other products containing HCFCs, and (3) pesticides
containing HCFC 123, CFC 113, methyl bromide, or any other ozone-depleting
chemical which is installed with an agent containing HCFC 123, CFC 113 or methyl
bromide. The process for making such a determination with respect to any of the
products included with these three categories shall begin with the Lane Regional Air
Pollution Authority (LRAPA) providing to the City Manger information about the
existence of alternatives to the ozone depleting chemical.
2. Based on the criteria set forth in R-6.725-0, the City Manager also may
determine that other products not covered by subsection 1 are ozone-depleting
products for which safe and cost-effective alternatives exist. This process also shall
begin with receipt of information from LRAPA regarding the ozone-depleting nature of
the product, and the existence of alternative products which are safe and cost-
effective.
3. Any Eugene resident or person with a business operating within Eugene
may request the City Manager to determine that other products not covered by
R-6.725-C-1 are ozone-depleting products for which safe and cost-effective
alternatives exist. Such requests must include information that addresses the criteria
set forth in R-6.725-0. LRAPA will consider these requests when it periodically
develops information regarding the ozone-depleting nature of other product, and the
existence of alternative products which are safe and cost-effective.
4. Any Eugene resident or person with a business operating within Eugene
may request the City Manager reconsider the ban of an ozone-depleting product when
new information shows that the alternative ozone-safe product is either not available,
safe or cost-competitive. Such requests must include information that addresses the
criteria set forth in R-6.725-0. These requests will be considered at the same time as
other decisions about ozone-depleting products. Should the City manager believe
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that the alternative product no longer meets the criteria set forth in R-6.725-0, the
procedure for reconsideration will follow the requirements of 6.725-C-5 to 8.
5 · Following receipt from LRAP A of the information specified in subsections 1
and 2, and based on that information and the criteria contained in section R-6.725-0,
the City Manager shall make an initial determination as to whether the ozone
depleting product should be prohibited. The City Manager shall provide notice of
intent to declare the product as a prohibited ozone-depleting product or a non-
prohibited ozone-depleting product, and provide an opportunity to submit comments
thereon of no less than 45 calendar days. Upon expiration of the comment period, the
City Manager shall consider the comments received, and based thereon, issue a
notice of the proposed decision with respect to the product. In addition to other notice
provided, the City Manager shall mail notice to any person who commented on the
proposed decision.
6. Any person who commented on the proposed decision and who disagrees
with that decision may, within 15 days from the date of the decision, appeal the
determination to a hearings official appointed by the City. The hearings official1s
decision shall be final, and shall be based solely on whether the criteria of a safe, cost-
effective alternative product being available has been met.
7 . Upon receipt of the hearings official1s decision, or upon expiration of time for
appeal (if no one appeals), the City Manager shall add the product covered by the
decision to Appendix A (if the decision is to prohibit the product because safe and
cost-effective alternatives exist) or to Appendix B (if the decision is to not prohibit the
product because no safe and cost-effective alternative exists).
8. If the decision is to prohibit the product, the prohibition becomes effective 90
days after the City Manager adds the product to Appendix A.
R-6.725-D Criteria and Methodology for Determining Additional Ozone-
Depleting Products or Exclusion of Products from Prohibition.
1 . Addition of Products. Products or a group of similar products may be
added to Appendix A upon a determination by the City Manager that an ozone-safe
substitute is available. To qualify as an ozone-safe substitute, the product must meet
both of the following requirements:
(a)The alternate product is readily available and its use will cost no more
than the use of the ozone-depleting product. In determining the availability and
cost of a proposed alternative product, the following shall be considered:
(1) When an ozone-depleting product is a component in the
manufacture of a completed product for an end-user, the cost to be
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considered is the final cost to the end-user and not simply the cost of
the ingredient product. {EXAMPLE: Rigid, ozone-depleting foam
insulation is used in the construction of some buildings. An
alternative type of insulation could be an acceptable substitute if its
use did not cause the final cost of the building to be any higher for
the building purchaser.};
(2) A product is readily available if it is for sale in any of the states of
Oregon, Washington or California in sufficient quantities to meet the
commercial need for the product in Eugene;
and
(b) The use of the alternate product will not pose threats to the public
health and safety. In determining the safety of a product, the following shall be
considered:
(1) Any product or compound on the U.S. Environmental Protection
Agency1s (U.S. EPA) Significant New Alternatives Policy (SNAP) list
shall be considered as meeting all the safety requirements of this
rule;
(2) When comparing two products that are ozone depleting, the
Ozone Depletion Potential (ODP) index shall be considered when
this data is available from the U.S. EPA. A product containing ozone-
depleting chemicals with an ODP index of 0.5 or less may be
consider as an acceptable alternative product;
(3) Products that are not listed on SNAP may be considered as safe
substitutes for ozone depleting products if it is shown that the
following physical and chemical characteristics are acceptable when
the substitute is used in the same applications as the ozone
depleting products: chemical stability, corrosiveness and
flammability. In addition, both short and long term human, plant and
animal direct toxicity shall be considered. In applications where a
substitute product is likely to react chemically to produce additional
chemicals, the direct toxicity of the reaction products shall also be
considered.
The addition of ozone-depleting products under this subsection shall be
accomplished by amending Appendix A of this rule in the manner set forth in R-6.725-
C-1 of this rule.
2. Exclusion of Products from Prohibition. If the City Manager
determ ines, based on the criteria set forth in R-6.725-D-1, that an ozone-safe
substitute is no longer available for a product listed on Appendix A of this Rule, the
product shall be removed from Appendix A and added to Appendix B (Ozone-
Depleting Products not Prohibited). Removal of the product shall be accomplished by
amending Appendix A and Appendix B of this rule in the manner set forth in R-6.725-
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C-1 of this rule.
R-6.725-E
Criteria for Designating Additional Ozone Depleting
Chemicals.
The City Manager may designate as ozone-depleting chem icals additional
chemical compounds not included in the definition of ozone-depleting chemical set
forth in R-6.725-A and Section 6.705 of the Eugene Code, 1971. A determination
under this section shall be based on the criteria and conclusions of the U.S.
Environmental Protection Agency... United Nations Environment Program... or other
national or international regulatory/environmental agency that provides a scientific
assessment with respect to the chemical compound proposed for inclusion as a
prohibited ozone-depleting chemical, and shall be effected by amendment of
Appendix C of this rule in the manner set forth in R-6.725-C-1 of this rule.
R-6.725-F
Citizen Complaint Procedure.
The enforcement officer shall be responsible for investigating complaints received
by the City from private citizens alleging that products or chemicals listed as banned in
Appendix A or C are being sold, used or manufactured in Eugene. Upon conclusion of
the investigation, the enforcement officer shall institute enforcement action pursuant to
Section 6.720 of the Eugene Code, 1971 and R-6.725-G of this rule, or advise the
complainant and the party against whom the complaint is lodged that no violation is
found to exist. If enforcement action is undertaken, the complainant shall be advised
of the nature of the action. The enforcement officer1s determination that no violation
exists may be appealed by the complainant to the City Manager in the manner set forth
in R-6.725-H-1.
R-6.725-G
Enforcement.
1 . Notice of Violation. Upon a determination that a person is violating
Section 6.710 of the Eugene Code, 1971 or R-6.725-B of this rule, the enforcement
officer shall issue a written Notice of Violation to the person. The Notice shall advise
the person of alternative chemicals, products and informational sources regarding the
prohibited product, and may require the person to provide a written response detailing
the actions that will be taken to resolve the violation(s). The Notice shall also advise
the person of the potential penalties that may be imposed if the violation continues.
For purposes of this subsection, and subsections 2 and 3 of this section, "product"
means a generic type of merchandise or item, such as "hair spray" or "paint."
2. Notice of Imposition of Administrative Civil Penalty. If a person
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fails to comply with a Notice issued under paragraph 1 of this section, or sells or uses
the prohibited product 60 days or more after the date of notification, the enforcement
officer may issue to the person a Notice of Imposition of an administrative civil penalty
in the amount of $500.
3. Imposition of Additional Administrative Civil Penalty. If an
administrative civil penalty is imposed under subsection 2 of this section and the
person sells or uses the prohibited product ten days or more after the date the penalty
is imposed, the enforcement officer may impose an additional administrative civil
penalty in the amount of $1,000. Each subsequent violation thereafter shall subject
the person to an administrative civil penalty of $1,000 per violation. For purposes of
this subsection, a "subsequent violation" means selling or using the product that
formed the basis for the prior penalty after the date of the previous notice imposing an
administrative civil penalty.
4. Service. All notices/orders shall be served by personal service or sent by
certified mail and first class mail. Any notice/order served by mail shall be deemed
received for purposes of any time computations hereunder, three days after the date
mailed, if to an address within this state, and seven days after the date mailed, if to an
address outside this state.
5. Penalties Not Exclusive. Any administrative civil penalty imposed
pursuant to this section shall be in addition to, and not in lieu of, any other penalty
authorized by Section 6.992 of the Eugene Code, 1971, or any other action authorized
by law.
6. Settlement of Civil Penalty Assessment. Upon receipt of Notice of
Civil Penalty Assessment, the violator may request a conference with the City Manager
or designee. The City Manager or designee may compromise or settle any unpaid
civil penalty assessment where authorized under Section 2.582 of the Eugene Code,
1971. A request under this paragraph shall not act as a stay, or otherwise affect the
filing or processing of an appeal under paragraph 7 of this section.
7 . Appeals. A Notice of Violation or Notice of Civil Penalty Assessment
issued under this section may be appealed in the manner set forth in Section R-6.725-
H.
R-6.725-H
Appeals.
1 . Enforcement Officer1s Determination. Any person aggrieved by the
enforcement officer1s determination under R-6.725-F that a violation for which an
enforcement action can be commenced does not exist may appeal that determination
to the City Manager. The notice of appeal must be filed with the City Manager within
15 days from the date of the enforcement officer1s notice, shall be accompanied by a
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copy of the notice, and shall state with particularity wherein the determination of the
enforcement officer was in error. At the time the notice of appeal is filed, the appellant
shall also serve a copy of the notice of appeal and the appellant1s statement on the
party against whom enforcement action is requested. The City Manager shall consider
.. the enforcement officer1s notice, any materials submitted by the appellant, and/or
- alleged violator, and within 30 days thereafter render a written decision affirming the
enforcement officer1s decision, modifying that decision, or granting the appeal and
directing the enforcement officer to proceed with enforcement action. The decision of
the City Manager shall be final.
2. Administrative Civil Penalty. Any person to whom a Notice of
Imposition of an Administrative Civil Penalty is issued pursuant to R-6.725-G-2-3 of
these rules may appeal that determination to the City Manager. The notice of appeal
must be in writing, and filed with the City Manager within 15 days from the date of the
Notice being appealed. The appeal shall state the name and address of the appellant,
the nature of the determination being appealed, the reason the determination is
incorrect, and what the correct determination of the appeal should be. Failure to file
such a statement within the time or in the manner required waives the appellant1s
objections, and the appeal shall be dismissed. Unless the appellant and City agree to
a longer time period, the appeal shall be heard by a hearings official within 30 days of
receipt of the notice of appeal. At least ten days prior to the hearing, the city shall mail
notice of the time and place of the hearing to the appellant. The hearings official shall
hear and determ ine the appeal on the basis of the appellant1s written statement and
any additional evidence deemed appropriate. The appellant may present testimony
and oral argument at the hearing either personally or by counsel. The hearings official
shall issue a written decision within ten days of the date of the hearing. The decision
of the hearings official is final, and may include a determination that the appeal fee be
refunded to the appellant upon a finding by the hearings official that the appeal was
not frivolous.
3. Appeal Fees. Appeals filed under this section shall be accompanied by
an appeal fee in an amount established by the City Manager pursuant to Section
2.020 of the Eugene Code, 1971.
Public notice of this proposed rule shall be given by making copies thereof
available to any person who has requested such notice and by publication thereof in
the Register Guard, a newspaper of general circulation within the City for at least five
day~, providing interested persons an opportunity of not less than 15 days to submit
data or comments thereon. If no valid comments or objections are received within the
time and in the manner prescribed in the notice, the proposed rule as contained herein
will be adopted and become effective immediately thereafter.
Dated this / () day of ()c
~2~.LL2
MiChea}26:-Glea n
City. Manage
, 1995.
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