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City Council - 05/08/1990 APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL TUESDAY , MAY 8, 1990 6:00 PM, COUNCIL CHAMBERS 7600 Executive Drive COUNCILMEMBERS: Mayor Gary D. Peterson, Richard Anderson, Jean Harris , Patricia Pidcock and Douglas Tenpas CITY COUNCIL STAFF: City Manager Carl J. Jullie, Assistant to the City Manager Craig Dawson, City Attorney Roger Pauly , Zoning Administrator Jean Johnson, and Recording Secretary Jan Nelson CALL TO ORDER/ROLL CALL: All members were present . I . APPROVAL OF ACE,NDA AND OTAER ITKHS OF BUSINESS MOTION: Pidcock moved, seconded by Harris , to approve the agenda, as published. Motion carried unanimously. A. Resg nse to MPCA re: Pr,ggosal for Permit for BPI Medical ste Incinerator Assistant City Attorney Ric Rosow reviewed the draft permit on public notice for an air emission facility requested by BPI Medical Waste Systems of Minnesota . He said the notice from the MPCA gives the City three options: 1 . The City can submit comments or concerns on the draft permit . 2 . The City can request a public information meeting at which the MPCA and the applicant would explain the proposal to the public. 3 . The City can request a contested case over the issuance of the permit . Rosow said the Supreme Court has recently clarified what it takes to obtain a contested case hearing from the MPCA. He said it must be shown that evidence can be produced that is contrary to the action proposed by the Agency. He said the facts and the expert advice must be gathered when a contested case is requested. f r R I I f City Council Meeting 2 May 8 , 1990 In regard to whether such a facility would require a mandatory EIS or EAW, Rosow said the emissions as set forth in the draft permit are substantially below the levels that trigger a mandatory EAW . He said any governmental unit that has authority with respect to whether the project goes ahead can determine that it may have potential for substantial environmental impact because of the nature or the location of the project . Harris asked if the standard is our demonstrating that there is significant impact. Rosow replied that the petitioner must give a description of a potential environmental effect that may result and must submit material evidence indicating that , because of the nature and location, there is a potential environmental effect. Peterson asked what data we have that indicates we might have evidence for such a petition. Rosow said he was not aware of any. Anderson asked if there might be questions about materials that may be burned. City Manager Jullie replied that some materials would become airborne but how serious they are is the question. He said the emissions f seem to meet the MPCA standards so he wasn' t sure how we l would determine that the emissions pose a health threat. Rosow said the deadline of the llth does not apply to a process where a determination would be made on requiring an EAW; however , a request for a contested case must be made by the llth. Rosow also said that the emissions are low enough so that the PCA would not technically require a permit . Zoning Administrator Jean Johnson said she checked the records for violations and there were several instances where the MPCA was notified regarding odor , particulates and open flames . She also said there is no specific site plan to review for the new facility; however, the outside unit will be about 16 feet high and 20 feet wide and the stack will be 40 feet high. Pidcock asked what actions the PCA took when notified of the violations . Johnson said they found violations . Pidcock asked if the operator was fined. Johnson said she didn' t know. Anderson asked if the past violations can be used against a the company in the granting of a new license. Rosow said they can be used if it is the same company. Anderson said he thought there is a need to look at things differently in the 1990 '3 and, if the past record of a company shows violations , we should take the opportunity to reject the license. City Council Meeting 3 May 8 , 1990 Peterson asked what permits would be required from the City. Johnson said there are site plan review ordinances , floodplain regulations and shoreline regulations . She said any variance from the shoreline regulations would have to go to the Board of Appeals b Adjustments . Tenpas asked if there are ordinances that restrict portable structures on sites since this would be a portable facility, not a permanent one. City Attorney Pauly said he didn' t think there is any prohibition against portable structures in the I-General classification. Tenpas asked about liability insurance. Pauly said he did not think there would be any problem with liability insurance as far as being adjacent to the floodplain; however, environmental insurance is another question since nothing in the permit refers to environmental insurance. Pauly said the first line would be for the PCA to require it . He said the City may have an opportunity to require it through its own permitting process . He said the facility will obviously require a number of variances . Harris asked if the City can be overridden if we object and don' t allow a permit because we are not comfortable with the site and proposed use. Pauly said he didn' t believe there is any preemption over local authority. Harris asked for a review of the process in which we are now engaged. Pauly said the comment period ends on May 11 . If comments are submitted, those will be taken into consideration and the MPCA may make changes or alteration. He said if a request is made for a public hearing, they might grant the request. He said if a request is made for a contested case, the staff will make a recommendation to the Board and the Board would have to rule on that at one of the public meetings; however , they would probably deny such a request . Harris asked how long the decision process would take. Pauly said it would probably be on the agenda for the meeting held on the 4th Tuesday in June. Harris then asked about the deadline for an EAW request . Pauly said it could be no later than the date the MPCA would vote on the permit . Jullie asked if the City would have to do the EAR. Rosow said if we made the determination on our own, the City would have to do it; however if there is a petition to the PCA, then the MPCA is the responsible unit . City Council Meeting 4 May 8 , 1990 Anderson said we have some sensitive areas near the location including a senior citizen facility, a home school , a camp, and a stream that resins down to a school . He said we need to consider what the potential is for escape of these materials and what the potential hazard would be . Pauly said we expect that when they make an appropriate application, it will be accompanied by a site plan with illustrations of the physical layout . He said we could also in the process require further information as to how the material would be handled, and, if the City chooses to require an EAW, that is the kind of information an EAW should cover . Anderson asked if the City would pay for the costs of an EAW. Pauly said it is prepared by the responsible governmental authority . He said we have been asking the applicants for development to prepare those, thereby passing on the cost to the applicant . Anderson said he questioned bringing this facility into a heavily-populated area. Jullie said they don' t have another site lined up. Tenpas said he was concerned about any type of waste management facility in floodplains and asked if the MPCP, has any regulations in regard to floodplains . Rosow said there are rules for solid waste disposal facilities that prohibit floodplains as a site; however, he hadn' t seen any thing in the rules for medical wastes . He said there are many different kinds of permits that they issue. Peterson asked if the attorneys or staff recommend getting involved prior to the formal process of the City. Jullie said staff suggests that we ask for the public information hearing . Peterson asked if we have a public hearing would staff recommend that we have a technical expert prepare the City for a certain line of questions . Jullie said that might be appropriate. Anderson asked what the next steps would be after the public hearing. Rosow said the next step would be the MPCA staff presenting a recommendation to the PCA Board with an opportunity for our comment before the MPCA at that meeting . The third step is the receipt of their application for site plan review and request for variances . He said the Council may want to have the attorneys examine the ordinances to see if they adequately protect health and safety. Peterson said he would hope that the applicant would recognize that the staff will review every facet of the application and operation and that there is a potential I City Council Meeting 5 May 8 , 1990 for environmental and health concerns . Tenpas said he thought it would be prudent for counsel to pursue anything we could do through ordinances regarding the floodplain or through requiring environmental insurance. Pauly said one of the courses of action the City could consider is an amendment of the code relating to zoning which would either eliminate all general industrial uses or non-related uses and eliminate specifically any type of garbage or medical waste. He said another course would be to prohibit the building of this facility because of non-conforming use. He said the minimum lot size is supposed to be five acres and this site is only 105 feet along the street and 250 feet deep--not even an acre. Pauly said the code is ambiguous on the need to have materials stored within enclosures and it does not require that the operation be within a building. He said with regard to the floodplain issue , there is a clear provision that there cannot be any storage or processing of materials in the floodplain; however, only about 20% of the lot is within the floodplain . Pauly said the Shoreline Management Act simply imposes some additional requirements with regard to size of lots , specifically ten acres . Pauly said they will look at the nonconforming use situation a little more closely. He said we might also consider strengthening the code provisions to create greater restrictions with respect to conditions to be imposed which would increase the safety and health aspects. Pauly said he thought this should also be considered in the larger context of our situation with the landfill in that whatever we do to oppose this may gain us a reputation of opposing all such issues . Peterson noted that we will be requesting a public meeting with the MPCA and the applicant and that we will pursue all reasonable methods to ascertain that , if there is a permitted use, it will function properly. III , OTHER AUS, NI ESS There was none. I v . lln JOURNMENT : MOTION: Tenpas moved, seconded by Harris , to adjourn the meeting at 7 : 20 PM. Motion carried unanimously .