City Ordinances, Smoke and Zoning Controls

Part 4 of a 4-Part Series on City Smoke Regulations

By Rachel Carlson, LMC Staff Attorney, http://lmccodification.blogspot.com

One thing I’ve noticed as a city attorney over the years – where there’s smoke, there is
likely to be fire, but also heated complaints to city hall. Hard to tell which burns hotter
from some of the meetings I have attended. Smoke can be the result of residential
heating, recreational activities or industrial activities. Whatever the source, smoke is a
frequent topic of city regulation.

This article is the final segment in a 4-part series of LMC Codification blog entries on
city ordinances and smoke regulation. This week's focus is on zoning ordinance
standards regulating smoke and ambient air standards.

Smoke in Zoning Ordinances

Cities commonly regulate smoke as part of their zoning ordinance. Frequently, these
rules are found in a “performance standards” section that regulates all types of nuisance
conduct that may result from uses, such as noise and vibrations.

In reviewing these ordinances, I find that cities generally follow three methods of smoke
regulation, including the Ringlemann chart, adoption of current Minnesota Pollution
Control Agency (MPCA) standards and use of something called “State of Minnesota
Pollution Control Standards, Minnesota Regulation APC 1 15.” For this blog entry we
will discuss each method in detail.

Minnesota Pollution Control Standards:

Many cities simply adopt MPCA standards as their performance standards for zoning
uses. Typical language is as follows:

SMOKE AND PARTICULATE MATTER. The ambient air quality standards of the
Minnesota Pollution Control Agency shall apply to the release of airborne materials.

Generally, MPCA standards are found in the Minnesota Rules ch. 7009 (available at this
link: https://www.revisor.mn.gov/rules/?id=7009). The MPCA standards appear to be
based on federal standards. According to the MPCA, cities may adopt more stringent
local standards for smoke.

The Ringlemann Chart:

Ringlemann was a French scientist born in 1861. His practice of measuring smoke by
using cards of various colors from white to black is still used today. More his smoke
chart can be found on the CDC website at:
http://www.cdc.gov/niosh/mining/pubs/pubreference/outputid330.htm.
Ordinance provisions using the Ringlemann chart typically look like this:

Smoke: Measurement of smoke shall be at the point of emission. The Ringlemann

Smoke Chart published by the United States Bureau of Mines shall be used for the
measurement of smoke. The following table indicates for the various zoning districts
the acceptable level of smoke emissions. These provisions, applicable to visible gray
smoke, shall also apply to visible smoke of a different color but with an equivalent
apparent opacity.
Zoning District Maximum Level of Emission Exception
R-1, R-1x, R-2, R-3, R-4, and Developing Residential Areas Ringlemann No. 0 None
B-1, B-4, CDC, M-3, MRD Ringlemann No. 1 Smoke of a Shade Equal to No. 2 on the
Chart may be Emitted for a Total of Eight Minutes during any one hour period.

Cities using the Ringlemann chart are using a legal and legitimate standard for
measuring smoke. However, cities using the chart may run into practical difficulties
related to enforcement should they have a true smoke problem use on their hands.

The problem with the Ringlemann chart is that it is speaking a different language from
the current MPCA standards. Smoke at Ringlemann No. 1 does not automatically equate
to a similar smoke measurement under MPCA standards. As a result, it may be difficult
for a city to understand (without expensive professional evaluation) how their standards
relate to mandatory state standards.

In addition, cities needing to take a Ringlemann measurement may have difficulty

finding a suitable “expert” trained in measuring smoke this way. Smoke measurements
these days are typically obtained by certified “smoke readers.” Smoke readers are
generally trained to measure smoke using MPCA and federal measurement standards.
This is because most smoke reading programs are designed to help people become “in-
house” smoke readers for private industries that may be facing federal penalties for
emissions violations.

Minnesota Regulation APC 1-15

A substantial number of cities also have this language adopting Minnesota Regulation
APC 1-15 as their standard for smoke regulation:

The emission of smoke by any use shall be in compliance with and regulated by the
State of Minnesota Pollution Control Standards, Minnesota Regulation APC 1-15, as
amended.

This language is potentially problematic because it is outdated. These standards have

not been current since the mid-80’s and have been superseded by the current Minnesota
Rules. If faced with an enforcement issue, the city may have difficulty obtaining a copy
of these standards and reading them in concordance with current standards. In
addition, certified smoke readers might not be familiar with these standards.
Conclusion

This concludes our 4-part series on smoke regulation. Far from being an ephemeral
topic – smoke is a frequent and lasting concern to Minnesota cities. Ordinances on
smoke touch many areas of resident lives – from business endeavors to private
recreational uses. Recent changes in technology – related to both methods of heating
(such as the new popularity of outdoor wood boilers) and methods of measuring smoke
may prompt cities to review their ordinances. In addition, recent law changes related to
tobacco products regulation may require ordinance redrafting.

About the Author:

Rachel Carlson is an attorney with the League of Minnesota Cities. The League of
Minnesota Cities is a membership organization serving Minnesota cities since 1913.
LMC Codification is a specialized service to help our cities maintain complete, up to
date and affordable code books in a frequently changing legal landscape. The LMC
Codification blog can be found at: http://lmccodification.blogspot.com.