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For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
AUTHORIZED RELEASE.
(1) A release which is a federally permitted release under 42 U.S.C. § 9601(10);
(2) 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;
(3) The introduction of any pollutant into a publicly-owned treatment works (POTW) which is not in violation of applicable pretreatment regulations controlling the introduction of pollutants into the publicly-owned treatment works; or
(4) Any release which is specifically authorized by a local, state or federal agency, to facilitate life safety objectives and/or overall control of a hazardous materials emergency.
CONSUMER PRODUCT. The meaning stated in 15 U.S.C. § 2052.
COST RECOVERY.
(1) Cost associated with hazardous materials responses include equipment that is disposed of, rather the re-used, the cost of qualifying the contaminants and securing legal disposal methods and equipment which must be replaced to ensure readiness for the next release. In addition, hazardous materials releases involve additional staffing, either at the scene of the release for control, isolation of the area, or evacuation of citizens or employees; or as long-term stand-by personnel at department stations to provide the normal coverage for other emergency situations that may arise in the community during a hazardous materials release.
(2) Affected departments could include Fire, Police, Water/Wastewater, Public Works, Natural Gas and Recreation.
(3) It is the city’s intent that shelter needs be provided by private disaster relief agencies, whenever possible, however, costs could be incurred for evacuees including food, water and personal hygiene materials.
(4) Cost recovery includes those amounts charged to the generator of a spill or release of hazardous materials, by the city or its departments, to replace equipment utilized (that is not reusable) or requires decontamination (with associated fees). Also, the city will bill total standard overtime salaries for non-“technician” employees. “Technician” level city employees (as defined in OSHA, 29 C.F.R. § 1910.120) shall be billed to the generator of a spill or release at a rate of $50 per hour/per technician at the scene of a hazardous material incident; provided, they are actively engaged in leak control, monitoring, rescue, “back-up” for leak control or monitoring teams, decontamination or are hourly employees serving at management levels or as support personnel with the incident command structure. Additional staff, “called-back”, who are standing by at their respective fire stations shall be considered as normally on-duty until the number exceeds that defined as normal staffing for that shift at the beginning of that work day. Any excess “called-back” personnel will be billed to the generator of a spill or release at a rate of $15 per hour/per person.
(5) It is not a legal requirement that the city provide these emergency technical services to its citizens and business community; however, it is within the scope of modern community protection to procure equipment, train personnel and provide and increased level of response for hazardous materials incidents, where feasible. This feasibility for the city is dependent upon total cost recovery for equipment and supplies used and overtime salaries incurred by its departments during a hazardous materials incident.
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. The atmosphere, the navigable waters of the United States and any other surface 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.
FACILITY. Either of the following:
(1) Any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or POTW), well, pit, pond, lagoon, impoundment, ditch, landfill, land-farm, waste, wastewater, hazardous material, sludge or pollutant, management, treatment, storage, disposal recycling or reclamation site or location, storage container, junkyard, factory, airport, manufacturing or business site, lot, motor vehicle, roiling stock or aircraft; or
(2) Any site, premises, facility, real estate or location where waste, wastewater pollutants or hazardous material has been released, discharged, deposited, treated, stored, disposed of, placed or otherwise come to be located. However, it shall not include a site solely because of the presence of a consumer product which is in consumer use or is in its original container.
HAZARDOUS MATERIALS.
(1) Any of the following:
(a) Any substance designated pursuant to § 311(b)(2)(A) of the Federal Water Pollution Control Act; being 33 U.S.C. §§ 1251 et seq. also known as Pub. Law 92-500 (also known as the Clean Water Act);
(b) 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.;
(c) Any hazardous waste having the characteristics identified under or listed pursuant to § 3001 of the Solid Waste Disposal Act (commonly known as the Resource Conservation and Recovery Act, “RCRA”, being 42 U.S.C. § 6921), but not including any waste the regulation of which under the Solid Waste Disposal Act has been suspended by Act of Congress;
(d) Any toxic pollutant listed under § 307(a) of the Federal Water Pollution Control Act, being 33 U.S.C. § 1317;
(e) Any hazardous air pollutant listed under § 112 of the Clean Air Act, being 42 U.S.C. § 7412;
(f) 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, being 15 U.S.C. § 2606;
(g) Any material included in the Title III List of Lists - Consolidated List of Chemicals Subject to the Emergency Planning and Community Right-to-Know Act (EPCRA), being 42 U.S.C. §§ 11002 and 11021 through 11023 and § 112(r) of the Clean Air Act, as amended, being 42 U.S. Code § 7412 (see also https://www.epa.gov/sites/production/files/2015-03/documents/list_of_lists.pdf);
(h) Petroleum products, including crude oil or fractions thereof, which is not otherwise specifically listed or designated as a hazardous substance under divisions (A)(1) through (1)(g) above; natural gas or synthetic gas usable for fuel (or mixture of natural gas and such synthetic gas);
(i) Radioactive materials and isotopes; and
(j) Explosives.
(2) 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 as amended (7 U.S.C. §§ 136 et seq.) (FIFRA), 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.
NORMAL RESPONSE. Those duties consistent with the normal work routine and staffing levels for the city and its departments.
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, United States Government or other commercial or legal entities.
RELEASE. Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing of pollutants, hazardous material, wastewater or wastes into the environment, but excludes:
(1) Any release which results in exposure to employees solely within a workplace, and is recovered by workplace employees under the auspices of an approved workplace spill prevention control and countermeasures plan (or equivalent);
(2) Emission from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel or pipeline pumping station engine; and
(3) The normal application of fertilizer and pesticides.
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.
(Prior Code, § 121.03) (Ord. 13-2000, passed 8-21-2000)
(A) Listed hazardous materials. The quantity in the column “RQ” for each hazardous material in the “Environmental Protection Agency(ies) “Title in List of Lists” or as listed by the Local Emergency Planning Committee of the county, is the reportable quantity for that material. “Reportable quantities” may be adjusted higher or lower as the Environmental Protection Agency publishes new “lists” or on the direction of the LEPC. This information is on file in the City Clerk’s office.
(B) 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 on file in the City Clerk’s office for the contaminant on which the characteristic of EP toxicity is based. If an unlisted hazardous waste exhibit EP toxicity on the basis of more man one contaminant, the reportable quantity of that waste shall be the lowest of the reportable quantities listed in App. 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.
(C) Oil.
(1) 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.
(2) The reportable quantity for releases of oil to the environment other than releases to waters of the United States or its adjoining shorelines is 56 gallons.
(3) 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 vessels’ bilge.
(D) Release of hazardous material to sanitary sewer system. Notwithstanding any other provisions 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 shall be deemed to be discharged in a reportable quantity.
(E) 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.
(Prior Code, § 121.04) (Ord. 13-2000, passed 8-21-2000)
The purpose of this chapter is to establish a uniform city-wide program for protection of the environment from releases of hazardous materials to be administered by existing governmental agencies. The city’s Fire Department shall serve as the lead agency in the administration and enforcement of this chapter.
(Prior Code, § 121.05) (Ord. 13-2000, passed 8-21-2000)
(A) 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 mere 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 Emergency Services Dispatches Office (county 911 center).
(B) Emergency telephone number. The notice required by this section, in the city, shall be given by telephoning “911” or other such emergency telephone number as designated. This one call meets the requirement of notifying local agencies. This shall not be construed as meeting the reporting requirements outlines in applicable state and federal legislation.
(C) 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 of “911”, especially if such efforts may result in the containment of the release and/or 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.
(D) Accidental air releases. Accidental air releases in excess of the reportable quantities of listed hazardous materials, on file in the City Clerk’s office, or, if unlisted (as prescribed in § 119.04 of this chapter), shall be reported under the requirements of this section unless a different reportable quantity has been established under a previous agreement between the LEPC and the particular facility.
(E) Duty to report to state or 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 state or federal agency.
(Prior Code, § 121.06) (Ord. 13-2000, passed 8-21-2000)
(A) 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 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.
(B) The provisions of this section shall in no way prohibit 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.
(Prior Code, § 121.07) (Ord. 13-2000, passed 8-21-2000)
(A) Notice. Upon notification or discovery of any violation of the provisions of this chapter, the city’s Fire Department shall immediately investigate the site upon which the violation is located. If a violation exists, a notice describing the violation shall be served upon the person who is responsible for the facilities upon which die violation has occurred, if the identity of the person is known. The notice shall also include the following, if applicable:
(1) A statement that the situation must be abated within the period of time prescribed by the city’s Fire Department, giving the person responsible for the release the option to initiate clean-up and disposal; provided that, no unreasonable delay or damage to the public is the result thereof;
(2) A statement that if the situation is not remedied within the prescribed period of time, administering agency with jurisdiction may proceed to secure appropriate public or private assistance to correct the violation;
(3) A statement that the person shall be liable for any costs incurred by public agencies associated with their responses, except for those costs that are associated with a normal emergency response;
(4) A statement that the nature of hazardous materials emergency response is outside the definition of “normal emergency response” for local government agencies as outlined in division (A)(3) above;
(5) A statement that if the administering agency, with jurisdiction, has secured correction of the violation, a bill shall be sent charging the person the amount of costs and expenses incurred by the governmental agency in securing the correction of the violation; and
(6) A statement that penalties may be levied for violations that have occurred.
(B) Governmental response. In cases where the identity of a person who is responsible for facilities upon which a violation has occurred is not known at the time a violation is reported, the city or any governmental agency with jurisdiction in the city may take reasonable steps to abate any problem and may take reasonable steps to clean-up the area affected to assure continuing safety of the public and the environment. When the identity of the person responsible for the facility is determined, a bill shall be sent to the person for the costs for correcting the violation according to the provisions of division (A) above.
(C) Injunctive relief. The city is empowered to seek injunctive relief for violations of this chapter should other means prove ineffective and a threat to public health and safety exists.
(Prior Code, § 121.08) (Ord. 13-2000, passed 8-21-2000)
(A) Establishment and empowerment. The Appeals Board shall serve as the Board of Appeals in actions relative to violations of this chapter.
(B) Appeal. The Board, in hearing an appeal, shall recommend to the city that the administering agency’s action be modified, upheld, or dismissed or that a fine or penalty levied upon a person for violation of any provision of this chapter be set aside, modified or left intact.
(Prior Code, § 121.10) (Ord. 13-2000, passed 8-21-2000)
It shall be an affirmative defense to any enforcement action, other than an action for violation of § 119.06 of this chapter, including recovery of clean-up costs pursuant to this chapter, if a person can prove that a release of hazardous materials was caused solely by:
(A) An act of God;
(B) An act of war;
(C) Negligence on the part of the city;
(D) An act or omission of a third party; or
(E) Any combination of the foregoing clauses.
(Prior Code, § 121.11) (Ord. 13-2000, passed 8-21-2000)
This chapter shall not create liability on the part of the city, or any of its city departments, for any damages that result from reliance on this chapter 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 chapter, necessary or desirable to ensure that there is no unauthorized release of hazardous materials.
(Prior Code, § 121.12) (Ord. 13-2000, passed 8-21-2000)
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