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(A) No conveyance, transfer, sale, indemnification, hold harmless or similar agreement shall be effective to release the owner or operator of any facility or vessel or any person who may be liable for a release of hazardous materials or threat thereof under this chapter. Nothing in this section shall bar any arrangement to insure, hold harmless or indemnify a party to such agreement for any liability under this chapter.
(B) Nothing in this section, including the provisions of division (A) above, shall bar a cause of action that an owner or operator or any other person subject to liability under this chapter, or a guarantor, has or would have, by reason of subjugating on or otherwise against any person.
(Prior Code, § 93.45) (Ord. 590, passed 2-6-1996)
(A) HMPC Plan. The following persons who have hazardous materials must prepare, submit and maintain a Hazardous Materials Use and Spill Prevention Control Plan, hereinafter referred to as HMPC Plan:
(1) All federal, state and local government agencies which use hazardous materials in reportable quantities;
(2)
All of the following businesses or services within the city which use hazardous materials, as classified by the Standard Industrial Classification (SIC) Code:
Classification | Business or Service |
Classification | Business or Service |
0782 | Lawn and garden services |
2011-3999 | Manufacturing |
4011-4953 | Transportation, communications and public utilities |
5043 | Photographic equipment and supplies (wholesale trade) |
5085 | Industrial supplies (wholesale trade) |
5161-5199 | Specific categories in wholesale trade |
5541 | Gasoline service stations (retail trade) |
7011-7218 | Industrial and commercial launders and the like, in services |
7342 | Disinfecting and exterminating services |
7395 | Photofinishing laboratories in services |
7512 | Passenger car rental in services |
7513 | Truck rental and leasing |
7538-7549 | Automotive repair shop and auto services in services |
8062 | General medical and surgical hospitals in services |
8063 | Psychiatric hospital in services |
8069 | Specialty hospitals except psychiatric in services |
(3) Those persons not covered in divisions (A)(1) or (A)(2) above who use hazardous materials may be required to submit a HMPC Plan if the administering agency finds it necessary to protect the public health and safety.
(B) Exemption. Exemptions shall be granted for:
(1) Persons who handle agricultural chemicals in the ordinary course of agricultural operations other than warehousing or bulk storage of such chemicals for resale of commercial application;
(2) Persons who handle hazardous materials otherwise regulated only at temporary construction sites;
(3) Persons who handle hazardous materials only in conjunction with residential use or property for noncommercial purposes; and
(4) Consumer products and foodstuffs packaged for distribution to and intended for use by the general public. This refers to ingredients used in production of foodstuffs which are regulated by the Federal Food, Drug and Cosmetic Act, being 21 U.S.C. § 301, as amended.
(C) Required HMPC Plan elements. The administering agency shall provide forms with the necessary instructions and requirements for completing HMPC Plans in compliance with this chapter. The HMPC Plans will include, but not be limited to:
(1) Facility identification;
(2) Spill history;
(3) Identification of hazardous materials (HM) storage, in plant transfer, process and materials handling areas and hazardous materials truck, rail car and/or vessel loading and unloading areas;
(4) Description of plan site runoff from parking areas described in division (C)(3) above, including in-place containment appurtenances (e.g., dikes) and means of releasing rainwater from such areas;
(5) Other means of spill prevention, control and countermeasure of all listed hazardous materials, such as containment or detection equipment and absorbent materials;
(6) Provisions for the operation and maintenance of all items described in division (C)(5) above;
(7) Contingency plans, including spill notification procedures for both internal personnel as well as outside authorities, including OCDES;
(8) Provisions for training of personnel in the utilization of contingency plans;
(9) Security provisions;
(10) Provisions for inspections, spill report preparations and records retention;
(11) Schedule (with actual dates or milestones) for HMPC Plan elements yet to be implemented, with provisions for reporting progress to the administering agency;
(12) Provisions for periodic review and amendments to the HMPC Plan;
(13) Certification of the HMPC Plan by a registered professional engineer or an officer of the company; and
(14) For the purpose of this section, only one plan need be submitted by the owner of electrical equipment at multiple locations when such equipment contains hazardous materials as a coolant, lubricant or insulation of the operation of such equipment. Divisions (C)(3) and (C)(5) above shall not apply to single plans authorized under this division (C)(14).
(D) Plan submittal deadlines. Those persons and facilities required to submit a HMPC Plan under this section shall submit such plans in duplicate to the administering agency within 180 days following the effective date of this section provided, however, that persons required to submit such HMPC Plans may request in writing for extensions of time where the complexity of the operations involved require additional time in which to complete such plans. When granted by the administering agency, such extensions of time shall be for the periods of 30 days, renewable thereafter for like periods until September 1, 1996, at which time all HMPC Plans shall have been submitted to the administering agency for review.
(E) Review and approval of plan.
(1) The HMPC Plan shall be reviewed by the administering agency, the Fire Department having jurisdiction, and, where appropriate, the county’s Health Department, any sanitation district operating within the city or other local agency with appropriate authority; however, final administrative action on the HMPC Plan shall be taken by the administering agency.
(2) Upon submission of the HMPC Plan or the granting of time extension in accordance with division (D) above, the person on submitting the plan shall be presumed to be in compliance with this section pending final approval of the plan. HMPC Plans which do not provide the necessary information or are otherwise defective shall be rejected and returned to the person submitting the plan for revision and resubmittal.
(F) Appeals.
(1) Any rejection or denial of approval of an HMPC Plan by the administering agency may be appealed to the governing body of the jurisdiction in which the facility for which such plan is submitted is located.
(2) As soon as practicable following receipt of notice of such appeal, the governing body shall conduct a public hearing into the matter and, after consideration of all evidence and testimony relative to such an appeal, shall, by majority vote, uphold the finding of the administering agency or may modify the requirements of the HMPC Plan for the particular facility as it may deem appropriate so long as such modifications are in compliance with the intent of this section which is to promote and secure protection of human health, property and the environment against present or potential hazards occasioned by the uncontrolled release of hazardous materials into the environment.
(G) Updates, revisions and changes. A new or modified HMPC Plan may be required and submitted to the administering agency when any person institutes the use of a new process or change in its manufacturing or processing facilities, or when there is significant change in its existing operations or wastewater constituents or characteristics.
(H) Training and educational programs.
(1) Each employer who uses hazardous materials as herein defined and who is required to prepare an HMPC Plan shall be required to have an initial and on-going safety and accidents prevention training program for all employees. This training and education shall include, but not be limited to, appropriate work practices, protective measures and emergency procedures. The details and frequency of the training program should be provided as a part of the HMPC Plan for the facility.
(2) The administering agency shall have the authority to require different frequencies of training for industries with frequent spills and/or spill histories.
(Prior Code, § 93.46) (Ord. 590, passed 2-6-1996)
(A) The administering agency and the response authority shall have the authority to jointly conduct the periodic inspections of any facilities, for the purpose of ascertaining and causing to be corrected, any condition which may be a violation of this chapter.
(B) Joint inspection shall be conducted where necessary for purposes of HMPC Plan review.
(C) Inspections shall be made during working hours except by special arrangement with the person in charge of the facility.
(Prior Code, § 93.47) (Ord. 590, passed 2-6-1996)
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 government agency, unless required by law.
(A) 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.
(B) Any request made under the law for information containing confidential or trade secret information 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 certified mail.
(C) Within 72 hours after receipt of notice, the person requesting confidentiality of trade secrets shall have the burden to initiate appropriate actions at law or otherwise to protect the confidential or trade secret information from disclosure and must demonstrate that public disclosure of confidential or trade secret information is likely to cause substantial harm to his or her competitive position.
(D) Any individual who releases information containing confidential or trade secret information in violation of 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.
(E) The provision 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 government need or is necessary in the performance of a government function including, but not limited to, the carrying out of the provisions and intent of this chapter.
(F) OCDES shall be the repository for all trade secret information for the purpose of this chapter.
(Prior Code, § 93.48) (Ord. 590, passed 2-6-1996) Penalty, see § 94.99
(A) Enforcement. The administering agency and the response authority herein before designated shall have the joint responsibility for enforcement of the provisions of this chapter.
(B) Notice of violation. Upon notification or discovery of any violation of the provisions of this chapter, the administering agency shall immediately investigate the site upon which the violation is located. The administering agency will be the lead enforcement agency for violations of this chapter. If a violation exists, a notice describing the violation shall be served upon the person who is responsible for the facilities upon which the violation has occurred, if the identity of the person is known. The notice shall also include the following, if applicable:
(1) A statement that if the situation is not remedied within the prescribed period of time, the administering agency may proceed to correct the violation;
(2) A statement that the person shall be liable for any costs incurred by public agencies associated with the releases, except for those costs that are associated with a normal emergency response;
(3) A statement that after the administering agency has corrected the violation, a bill shall be sent charging the person the amount of costs and expenses incurred by the governmental agency in correcting the violation; and
(4) A statement that penalties provided for in § 94.99 of this code may be levied for violations that have occurred.
(C) Governmental response.
(1) In cases where the identity of the person who is responsible for facilities upon which a violation has occurred is not known at the time a violation is reported or discovered, the city or any governmental agency within the city may take reasonable steps to abate any problem and may take reasonable steps to clean-up the area affected to ensure continuing safety of the public and the environment.
(2) When the identity of the person responsible for the facility is determined, a bill shall be sent to that person for the cost for correcting the violation according to the provisions of divisions (A) and (B) above.
(D) Injunction relief. The administering agency 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, § 93.49) (Ord. 590, passed 2-6-1996) Penalty, see § 94.99
Fees shall be imposed for HMPC Plan review or approval, the revenues of which shall cover only the costs of HMPC Plan review and approval. The administering agency shall set and collect fees. The fee schedule shall be uniform for all persons required to submit HMPC Plans under the provisions of this chapter.
(Prior Code, § 93.50) (Ord. 590, passed 2-6-1996)
This chapter shall not create liability on the part of the administering agency or on the part of the response authority 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, § 93.51) (Ord. 590, passed 2-6-1996)
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