(A) Purpose; applicability.
(1) Purpose. The purpose of this section is the protection of public health and safety in the city, through prevention and control of hazardous materials incidents and releases and to require the timely reporting of releases thereof.
(2) Applicability. This section shall apply to all persons who manufacture, use or store hazardous materials in quantities prescribed by this section and as defined herein, within the city.
(B) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
AUTHORIZED RELEASE.
(a) A release which is a federally permitted release under 42 U.S.C. § 9601(10);
(b) A release to waters of the United States or adjoining shorelines which is exempt from notification under 40 C.F.R. §§ 117.11 through 117.14; and
(c) The introduction of any pollutant into a publicly-owned treatment works which is not in violation of applicable pretreatment requirements or other regulations controlling the introduction of pollutants into the publicly-owned treatment works.
CONSUMER PRODUCT. The meaning stated in 15 U.S.C. § 2052.
EMPLOYEE. Any person who works, with or without compensation, in a workplace.
EMPLOYER. Any person, firm, corporation, partnership, association, government agency or other entity engaged in a business or in providing services that has employees.
ENVIRONMENT.
(a) The navigable waters of the United States and any other surface water, ground water, drinking water supply, soil surface, subsurface strata, storm sewer or publicly- or privately-owned treatment works (other than those handling only wastewater generated at a facility) within the boundaries of the city; and
(b) Shall include air only for purposes of reporting releases pursuant to division (F)(1) below.
FACILITY.
(a) Any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly-owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock or aircraft; or
(b) Any site or area where a hazardous material has been deposited, stored, disposed of, placed or otherwise come to be located; but does not include any consumer product in consumer use or any vessel.
HAZARDOUS MATERIALS.
(a) As follows:
1. Any substance designated pursuant to § 311(b)(2)(A) of the Federal Water Pollution Control Act, being 33 U.S.C. §§ 1251 et seq.;
2. Any element, compound, mixture, solution or substance designated by the U.S. Environmental Protection Agency (EPA) pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, § 102 (CERCLA), being 42 U.S.C. §§ 9601 et seq.;
3. Any hazardous waste having the characteristics identified under or listed pursuant to § 3001 of the Solid Waste Disposal Act, being 42 U.S.C. §§ 6901 et seq. (commonly known as the “Resource Conservation and Recovery Act” or “RCRA”), but not including any waste the regulation of which under the Solid Waste Disposal Act, being 42 U.S.C. §§ 6901 et seq. has been suspended by Congress;
4. Any toxic pollutant listed under § 307(a) of the Federal Water Pollution Control Act, being 33 U.S.C. § 1317(a);
5. Any hazardous air pollutant listed under § 112 of the Clean Air Act; and
6. Any imminently hazardous chemical substance or mixture with respect to which the Administrator of the U.S. Environmental Protection Agency has taken action pursuant to § 7 of the Toxic Substances Control Act. The term does include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under divisions (a)1. through (a)6. of this definition, and the term does include, if stored, natural gas, natural gas liquids, liquefied natural gas or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas).
(b) Shall include radioactive materials and isotopes, and explosives. HAZARDOUS MATERIALS shall not include household wastes and other materials excluded by 40 C.F.R. § 261.4.
NORMAL APPLICATION OF PESTICIDES. Application pursuant to the label directions for application of a pesticide product registered under §§ 30 or 24 of the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”) as amended (7 U.S.C. §§ 135 et seq.), or pursuant to the terms and conditions of an experimental use permit issued under § 5 of FIFRA, or pursuant to an exemption granted under § 18 of FIFRA.
OIL. Oil of any kind or in any form including, but not limited to, petroleum, fuel oil, sludge, oil refuse and oil mixed with wastes other than dredged spoil.
PERSON. Any individual, trust, firm, company, society, corporation, joint stock company, partnership, consortium, association, cooperative, joint venture, city, county, city and county special district, the state or any department or agency or political subdivision thereof, the United States Government or other commercial or legal entities.
RELEASE. Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment, but excluding:
(a) With respect to a claim which such persons may assert against the employer of such persons as provided by CERCLA regulations, any release which results in exposure to persons solely within a workplace;
(b) Emissions from the engine exhaust or a motor vehicle, rolling stock, aircraft, vessel or pipeline pumping station engine; and
(c) The normal application of fertilizer and pesticides.
REPORTABLE QUANTITY. The quantity as set forth in division (E) below.
STORE. To deposit or place a substance in the city for a period of ten days or more; provided, such substance is not otherwise in transit.
USE. To store, maintain, treat, process, handle, generate, dispose of or otherwise manage. USE shall not include any mode of transportation other than on-site transportation.
VESSEL. Every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.
(C) Confidential information; trade secrets. Information and data provided by any person or obtained from any report, questionnaire, permit application, permit and monitoring program, and from inspections shall not be made available to the public or any other governmental agency, unless required by law.
(1) Upon submission of information in any form, it shall be the obligation of the submitter to separate all confidential and trade secret material from any material subject to disclosure under the law.
(2) Any requests made under the law for information containing confidential or trade secrets shall be brought to the attention of the person requesting confidentiality of its trade secrets by certified mail, return receipt requested. The notification shall advise the person requesting confidentiality of the decision of the administering agency regarding release of the confidential information. In no event will such confidential information be released until five days have elapsed from the date notice is sent by registered mail.
(3) Within 72 hours after receipt of notification, the person requesting confidentiality of its trade secrets shall have the burden to initiate appropriate actions at law or otherwise to protect its confidential or trade secrets from disclosure, and must demonstrate that public disclosure of confidential or trade secrets is likely to cause substantial harm to his or her competitive position.
(4) Any individual who releases information containing confidential or trade secrets in violation of the law or this section shall be subject to disciplinary action by his or her employer for malfeasance, misfeasance and willful neglect of official duties, and may further be guilty of misuse of confidential information under KRS 522.040.
(5) The provisions of this section shall in no way prohibit or limit the exchange of information, confidential or otherwise, between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function.
(D) Disclaimer of liability. This section shall not create liability on the part of the administering agency for any damages that result from reliance on this section or any administrative decision lawfully made thereunder. All persons are advised to determine to their own satisfaction the level of protection, in addition to that required by this section, necessary or desirable to ensure that there is no unauthorized release of hazardous materials.
(E) Reporting requirements; determination of reportable quantities.
(1) Listed hazardous materials. The quantity in the column “RQ” for each hazardous material in Appendix A attached to Ord. O-36-88 and incorporated herein by reference is the reportable quantity for that material. The Appendix A list (40 C.F.R. part 302) will be automatically updated at such times as EPA publishes a new list. Reportable quantities may be adjusted higher or lower as provided by division (E)(4) below.
(2) Unlisted hazardous materials. Unlisted hazardous wastes designated as hazardous materials have the reportable quantity of 100 pounds, except for those unlisted hazardous wastes exhibiting the characteristics of EP toxicity identified in 40 C.F.R. § 261.24. Unlisted hazardous wastes which exhibit EP toxicity have the reportable quantities listed in Appendix A for the contaminant on which the characteristic of EP toxicity is based. If an unlisted hazardous waste exhibits EP toxicity on the basis of more than one contaminant, the reportable quantity for that waste shall be the lowest of the reportable quantities listed in Appendix A for those contaminants. If an unlisted hazardous waste exhibits the characteristic of EP toxicity and one or more of the other characteristics, the reportable quantity shall be the lowest of the applicable reportable quantity.
(3) Oil.
(a) The reportable quantity for releases of oil to waters of the United States or adjoining shorelines is any quantity which violates applicable water quality standards or causes a film or sheen upon or discoloration of the surface of the water or adjoining shorelines, or causes a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines.
(b) The reportable quantity for releases of oil to the environment other than releases to waters of the United States and adjoining shorelines is 56 gallons.
(c) Notwithstanding any other provision of this section, a release of oil from a properly functioning vessel engine shall not be deemed to be in a reportable quantity; however, this provision shall not be applicable to oil accumulated in a vessel’s bilges.
(4) Higher reportable quantity. Notwithstanding any other provision of this section, the administering agency may designate a reportable quantity for a hazardous material in excess of the quantity determined under this section if the administering agency determines that the higher reportable quantity is consistent with the purposes and objectives of this section.
(5) Release of hazardous materials to sanitary sewer system. Notwithstanding any other provision of this section, any release of a hazardous material to a sanitary sewer system which is prohibited under applicable pretreatment or other regulations governing discharges to the sanitary sewer system shall be deemed to be discharged in a reportable quantity.
(6) Component hazardous materials release. A release of a mixture or solution of which a hazardous material is a component shall be considered to be a release in a reportable quantity only where the component hazardous material of the mixture or solution is released in a quantity equal to or greater than its reportable quantity.
(F) Reporting requirements; notification of Police/Fire Dispatch Center.
(1) Notice upon discovery. Whenever a release (other than an authorized release) of any hazardous material, in a quantity which exceeds the reportable quantity, occurs on any facilities of any kind, the person in charge, upon discovery of such release, or evidence of there having been a release, even though it has apparently been controlled, shall immediately cause notice of the existence of such release, the circumstances of same, and the location thereof to be given to the Police/Fire Dispatch Center.
(2) Emergency telephone number. The notice required by this section in the city shall be given by telephoning 859-292-2222 or such other emergency telephone number as may be designated. This one call will meet the requirement of notifying local agencies and, to the extent permitted under an existing memorandum of understanding, will provide notice to the state’s Cabinet for Natural Resources and the Fire Marshal.
(3) Duty to control release. The requirements of this section shall not be construed to forbid any person on or about the facilities from using all diligence necessary to control such release prior to the notification to the Police/Fire Dispatch Center, especially if such efforts may result in the containment of the release the abatement of extreme hazard to the employees or the general public. Delays in reporting releases due to in-house notification of off-site owners/supervisors shall not be acceptable and may result in penalties.
(4) Air releases. Accidental air releases in excess of the reportable quantities listed in Appendix A attached to Ord. O-36-88 and incorporated herein by reference, or, if unlisted, as prescribed by division (E) above (releases that are required to be reported to state and federal authorities), shall be reported under the requirements of this section.
(5) Duty to report to federal agencies. No statement contained in this section shall be construed to exempt or release any person from any other notification or reporting procedure required by any federal agency.
(1984 Code, § 95.50) (Ord. O-40-08, passed 9-23-2008)