Sec. 11-46.1(1). The purpose of this section is to protect the public health, safety and welfare by providing procedures for affected areas of the community to be informed regarding potential dangers of private commercial facilities which conduct the accumulation, treatment, remediation, or disposal of dangerous off-site wastes and by providing procedures which will assist in resolving community conflicts concerning the impact of such facilities on nearby areas. Where dangers are found to exist to nearby areas or conflicts can not be resolved in advance, this section will provide for the temporary and/or permanent abatement of a proposed or existing dangerous off-site waste nuisance, as defined, to allow public concerns to be properly investigated and acted upon.
Sec. 11-46.1(2). The city shall have the authority under this section and pursuant to the procedures below to abate any dangerous off-site waste nuisance by either suspending or withholding the issuance of any city permits or authorizations which are otherwise required for the construction or operation of the facility, by revoking any existing permits or authorizations for the operation of the facility or by enjoining the continued operation of an existing facility. The city's authority to abate a dangerous off-site waste nuisance shall include the authority pursuant to the procedures in this section to restrict or limit the operation of the facility to protect public health.
Sec. 11-46.1(3). "Dangerous off-site waste nuisance" is hereby defined as including any accumulation of dangerous off-site waste for the private commercial purpose of processing, treating, remediating or disposing of all or any portion of the waste material within the city limits of Tucson where such activity creates a significant risk of harm or creates reasonably based public health concerns among a considerable number of persons in a community or neighborhood.
(1) "Dangerous off-site waste" is defined as all waste products which are collected for the private commercial off-site processing, treatment, remediation or disposal and which are defined by county, state or federal laws or regulations as "hazardous waste," "special waste" or "solid waste petroleum contaminated soil" and shall include all waste listed in A.R.S. 49-852 and 49-854 as subject to designation as a "special waste" regardless of the actual status or date of state designation.
(2) "Risk of harm" means any present or potential future harm to area property owners or neighborhoods or to the community at large which may be caused by the dangerous off-site waste including risks from any proposed facility, the actual existing operation or any proposed, expected or allowable expansion of the operation or any change in the process. "Risk of harm" shall include the potential release of dangerous off-site waste due to the regular and permitted operation of the facility as well as reasonable estimates of risks which may be caused by the accidental handling of materials or the intentional violation of established standards and legal requirements.
Sec. 11-46.1(4). Community notification of a potential operation involving the processing, treatment, remediation or disposal of dangerous off-site waste. Any person or business which proposes to conduct any private commercial activity involving the private commercial accumulation of dangerous off-site waste for the purpose of processing, treating, remediating or disposing of such waste shall provide notice to affected parties of the proposed dangerous waste activities and to such additional parties as may be designated by the chief building official in accordance with this section.
(1) The notice shall be in a form approved by the city and shall inform the affected parties of the permit or permit revision which is being requested, the agency from which the permit or permit revision is being requested, the nature of the proposed operation, the individual chemicals or hazardous materials which are subject to regulation and a description of the measures to be taken to protect surrounding areas from unreasonable exposure to dangerous off- site waste. The notice shall also inform the affected parties of their rights to object to the location of the facility and the requirement that such objections be filed with the city within ninety (90) days of the mailing of the notice.
(2) The notice required by this subsection shall be mailed within sixty (60) days of the filing of the permit application or request for permit revision.
(3) The "affected parties" who shall be entitled to notice shall include:
a. The city clerk, who shall forward a copy of the permit request to the chief building official, the director of utility services, and the fire chief of the city.
b. All public schools and hospitals located within three (3) miles of the exterior lot lines of the property where the facility is or is proposed to be located.
c. All real property owners within three hundred (300) feet of the exterior lot lines of the property where the facility is or is proposed to be located.
d. The residential property owners on the residential block which lies closest to the proposed facility in each direction, north, south, east and west.
e. Any neighborhood association registered with the city which either partially or completely lies within two (2) miles of the proposed facility.
(4) After the initial notice has been provided under this subsection, the owner or operator of the facility may be granted a waiver by the utility services department from the notice requirement set forth herein for a subsequent permit application or permit revision where further notification will not provide any significant additional information, is within one (1) year of the prior notification and is essentially duplicative of prior notification.
(5) Notice shall not be required for the renewal of a permit where notice has already been provided for the expiring permit and there is no significant change in the terms of the permit or the actual or proposed operation of the facility.
(6) Notice shall be required where an owner or operator has stated to any permitting authority that it will voluntarily abide by self imposed limitations and where a decision is made to exceed such self imposed limitations even where it is not necessary to revise or amend the existing permit.
(7) Objections to the location of the facility shall be filed with the chief building official within ninety (90) days after the date of the notice.
(8) Failure to object to the location of a proposed facility within ninety (90) days from the date of mailing the notice provided by this section shall waive any right an affected party may have under this section to object to the location of the facility after that time except where significant new information becomes available.
(9) "Permit" as used in this subsection shall refer to a permit from a county, state or federal agency regulating hazardous materials, hazardous waste, special waste, stormwater runoff or air quality.
Sec. 11-46.1(5). Temporary abatement of a potential dangerous off-site waste nuisance. In order to insure protection of public health, safety and welfare, a potential dangerous off-site waste nuisance shall be subject to temporary abatement to provide and allow time for investigation of the level of danger posed by the facility and to permit time for community consultation concerning the potential health and environmental risks. The procedure for temporary abatement of a potential dangerous off-site waste nuisance shall be as follows:
(1) The chief building official and the fire chief may initiate an action to temporarily abate a potential dangerous off-site waste nuisance where (1) there is a reasonable basis to believe that a potential dangerous off-site waste nuisance may exist or is proposed or (2) where there is reasonable public concern among a considerable number of community or neighborhood residents that a dangerous off-site waste nuisance may exist or is proposed and a reasonable basis for further investigation of the potential hazard.
(2) The chief building official shall initiate an action to temporarily abate a potential dangerous off-site waste nuisance or shall direct that a hearing be held pursuant to subsection 11-46.1(6) where more than fifty (50) percent of the property owners within the notification area object to the location of the facility or where any school or hospital within the notification area objects to the location of the facility.
(3) The chief building official shall initiate an action for the temporary abatement of an dangerous off-site waste nuisance by providing written notice that such action has been taken to the operator or owner of the existing or proposed facility which may constitute an dangerous off-site waste nuisance.
a. Where the potential dangerous off-site waste nuisance is proposed for construction but has not commenced construction of the structure to be used, an order by the chief building official for the temporary abatement of an dangerous off-site waste nuisance shall stay the authorization for any construction including the granting of any further permits or conducting of any compliance inspections. No further authorization for construction or permits shall thereafter be granted to the potential dangerous off-site waste nuisance, except upon the compliance with the procedures set forth in this section. The stay set forth in this section shall not toll any time limitation which is otherwise applicable under this Code.
b. Where the potential dangerous off-site waste nuisance is an existing facility, the chief building official and fire chief shall determine whether the facility poses an imminent danger to public health and safety.
1. If the facility is determined to pose an imminent danger to the public health and safety, the potential dangerous off-site waste nuisance shall be immediately abated and shall cease and desist any further operation.
2. If the facility is not determined to pose an imminent danger to the public health and safety, the potential dangerous off-site waste nuisance shall not be subject to abatement until after a hearing is held by the chief building official.
(4) The temporary abatement of a potential dangerous off-site waste nuisance shall not exceed a period of six (6) months except where the operator/owner of the potential dangerous off-site waste nuisance agrees to extend such time, where the operator/owner fails to comply with the community consultation provisions in subsection (5) below, where the temporary abatement is extended by the hearing officer appointed pursuant to subsection 11-46.1(6) or where an appeal is filed with the mayor and council pursuant to subsection 11-46.1(6)(7).
(5) During the temporary abatement period, the operator/owner of the potential dangerous off-site waste nuisance shall provide reasonable and appropriate notice to and communications with potentially affected community residents to establish that the facility will not unreasonably expose the members of the community to risks from environmental hazards. Such conduct may include, inter alia, mailing information to area residents, informational meetings with area residents, consultations with neighborhood associations, consultations with area public schools and community mediation. The city shall cooperate with the operator/owner to facilitate such community consultation.
(6) The operator/owner of any facility which is subject to a temporary abatement action shall have the right to appeal the action to mayor and council. Any such appeal shall be filed with the city clerk in writing. The appeal shall be scheduled for a public hearing before mayor and council on the third regularly scheduled mayor and council session following the filing of the appeal.
a. The operator/owner shall have the burden of establishing in any such appeal that the proposed or existing facility does not pose any potential danger to area residents or the community and that there is no need for the temporary abatement or for the community consultation as provided in subsection (5) above.
b. Failure of the facility to use the best management practices or best available technology, monitoring or security in the processing, transportation, storage or disposal of dangerous off-site waste may be accepted by mayor and council as prima facia evidence that a temporary abatement shall continue.
Sec. 11-46.1(6). Determination that a facility constitutes an dangerous off-site waste nuisance. While a temporary abatement of a potential dangerous off-site waste nuisance is in effect, the chief building official may order a public hearing be held to determine whether the facility subject to the temporary abatement constitutes an environmental nuisance which shall be permanently abated. The determination shall be made in the following manner.
(1) The city shall designate an independent hearing officer. The hearing officer shall hold a public hearing to determine whether the facility constitutes an dangerous off-site waste nuisance.
(2) The city shall provide notice of the hearing date and location to the operator/owner of the facility and to all property owners who the chief building official determines may be affected by the operation of the facility. The city may also provide notice of the hearing by publication and other appropriate means where a large number of persons may be affected by the facility.
(3) At the hearing the hearing officer shall determine whether the operator/owner of the facility has complied with the requirements for community notice and consultation as set forth in section 11-46.1(4) and 11-46.1(5)(5) above. If the hearing officer determines that the operator/owner has not complied with the community notice and consultation provisions and that further community notice and consultations will inform the public or alleviate public concerns regarding the operation of the facility, the hearing officer shall order that the temporary abatement be extended to provide time for compliance with the community consultation provisions.
(4) The hearing officer shall determine prior to the expiration of the temporary abatement order whether the facility in fact constitutes an dangerous off-site waste nuisance which shall be either permanently abated or subject to such conditions and restrictions upon its operation as are reasonable and necessary to protect property and the public health and welfare. The hearing officer's determination shall be based upon the following factors:
a. Whether the operation of the facility within established county, state and federal permits at the specific proposed or actual site of operation would be an unreasonable danger to area residents due to its location;
b. Whether the operation of the facility at levels which may reasonably occur due to poor maintenance, accidental releases or intentional violation of established county, state and federal permits would be an unreasonable danger to area residents;
c. Whether the operation of the facility will be unreasonably dangerous to any institutions with particularly sensitive populations including any public schools, hospitals, nursing homes or retirement homes;
d. Whether the operation of the facility will unreasonably diminish and suppress area property values;
e. Whether proposed or existing monitoring, maintenance, supervision, security and record-keeping requirements are adequate to deter and detect the accidental or intentional operation of the facility in violation of existing permits without unreasonable risk to area residents or the community;
f. Whether the operation of the facility will create an unreasonable risk to the subsurface, surface and habitat environment in the area where the facility is to be located;
(5) The hearing officer shall have the sole authority to continue the hearing where such continuance is necessary to permit additional time for the investigation or study of issues in the hearing. The hearing officer shall further have the authority to extend the temporary abatement where such a continuance is ordered provided that no temporary abatement shall be extended beyond one year from the date of its initial imposition.
(6) The hearing officer shall issue his determination and the basis therefore within ten (10) days of the public hearing.
(7) Any party who has received written notice of the hearing or the city may appeal the determination of the hearing officer to the mayor and council within fourteen (14) days of the date of the hearing officer's determination by filing a notice of appeal with the city clerk. A public hearing on the appeal shall be scheduled within thirty (30) days from the filing of the first appeal notice with mayor and council.
(8) The filing of an appeal pursuant to subsection (6) above shall extend the temporary abatement through the date of the scheduled appeal hearing before mayor and council provided that such period shall not exceed sixty (60) days.
(9) Mayor and council shall review the determination of the hearing officer, the record in the case and such additional matters as may be determined to be relevant to its determination. Mayor and council shall then exercise its discretion in determining whether the facility constitutes an dangerous off-site waste nuisance as set forth in the provisions and standards of this section which shall be permanently abated or subject to such conditions and restrictions as may be deemed appropriate to protect public health, safety and welfare.
(10) The cost of retaining the hearing officer and providing the notice required by this subsection shall be equally born by the city and the owner or operator of the proposed facility.
Sec. 11-46.1(7). The provisions of this subsection shall be supplemental to state and federal environmental protection laws. Nothing herein shall authorize the city to require that any owner or operator of any dangerous off-site waste facility contravene or disregard any order, permit, regulation or statutory provision of state or federal environmental law.
(Ord. No. 8643, § 1, 1-22-96; Ord. No. 9861, § 3, 6-16-03)