Title
An Ordinance amending Chapter 16A of the Code of Ordinances of the Lexington-Fayette Urban County Government, pertaining to hazardous materials, as follows: Section 16A-1 of the Code of Ordinances is amended to include definitions for clean up contractor, hazardous materials commander, and hazardous materials platoon leader, and to delete the Technical Advisory Commission; Section 16A-4 of the Code of Ordinances is amended to remove portions of the discharge reporting requirements; Section 16A-5 of the Code of Ordinances is amended to define the response options of the Div. of Fire and Emergency Services following a hazardous materials spill; Section 16A-6 of the Code of Ordinances is amended to refine notice of closure requirements for facilities handling hazardous materials; Section 16A-7 of the Code of Ordinances is amended to refine inventory reporting requirements for facilities handling hazardous materials; Section 16A-8 of the Code of Ordinances regarding implementation requirements is deleted in its entirety; Section 16A-9 of the Code of Ordinances regarding registration requirements is deleted in its entirety; Section 16A-10 of the Code of Ordinances regarding exceptions to registration requirements is deleted in its entirety; Section 16A-11 of the Code of Ordinances is amended to refine the requirements for a spill prevention plan; Section 16A-12 of the Code of Ordinances is amended to redefine the duties of a hazardous materials coordinator; Section 16A-13 of the Code of Ordinances regarding the membership requirements of the hazardous materials team is deleted in its entirety; Section 16A-14 of the Code of Ordinances is amended to redefine the duties of the hazardous materials team; Sections 16A-15, 16A-16, and 16A-17 of the Code of Ordinances regarding the Technical Advisory Commission are deleted in their entireties; Section 16A-19 of the Code of Ordinances is amended to refine standards for hazardous materials spill response and coordination with other authorities; Section 16A-20 of the Code of Ordinances regarding voluntary registration is deleted in its entirety; Section 16A-21 of the Code of Ordinances regarding preparation of compliance guidelines is deleted in its entirety; Section 16A-24 of the Code of Ordinances is amended to define parties responsible for enforcement of the Chapter; Section 16A-25 of the Code of Ordinances is amended to provide for criminal penalties for violations of the Chapter, to define violations of inventory reporting requirements, restoration following hazardous material discharge, closure of facilities handling hazardous materials, and maintaining spill prevention plans as criminal violations with a fine not to exceed two hundred and fifty dollars ($250) for individuals and five hundred dollars ($500) for corporations, and to define violations of the Chapter related to hazardous materials discharge as a misdemeanor with penalties of up to twelve months imprisonment and fines not to exceed five hundred dollars ($500) for individuals and ten thousand dollars ($10,000) for corporations; Section 16A-26 of the Code of Ordinances regarding the Civil Penalty Appeals Board is deleted in its entirety; and renumbering the affected sections to reflect these changes; all effective on April 1, 2013. [Council Office, Maynard]
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BE IT ORDAINED BY THE COUNCIL OF THE LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT:
Section 1 - That Section 16A-1 of the Code of Ordinances be and hereby is amended to read as follows:
Sec. 16A-1. - Definitions.
(1) Clean up contractor means those individuals or companies that have been trained in Hazardous Waste Operations and Emergency Response ("HAZWOPER") and Occupational Safety and Health Administration ("OSHA") standards and have the resources and ability to clean up hazardous materials.
(2) Closure means the time at which handling of hazardous material permanently ceases at a facility or ceases for a period of sixty (60) days or more.
(3) Discharge means any spilling, pouring, leaking, emitting, pumping, emptying, discharging, escaping, injecting, dumping, or disposing of any hazardous materials.
(4) Exempt discharge means any discharge which is exempted from reporting requirements pursuant to this chapter.
(5) Facility means a building or buildings, appurtenant structures and surrounding land area used by a person at a single location or site.
(6) Handle means to store, maintain, treat, process, use, generate, dispose of, or otherwise manage, but does not mean transportation of hazardous materials except transportation of such materials within a facility.
(7) Hazardous materials means any chemical, biological or radiological compound, gas, oil, gasoline, lubricant, or other petroleum products, substance, solution or mixture which because of its quality, quantity, concentration, physical or infectious characteristics, or any combination thereof, when released into the environment, presents or may present harmful or potentially harmful effects to human health or welfare or the environment. Hazardous materials shall only include any substance, mixture, element, compound or solution in concentration greater than one (1) percent by volume designated pursuant to the Federal Water Pollution Control Act (otherwise known as the Clean Water Act) and the Comprehensive Environmental Response, Compensation and Liability Act and any petroleum products as defined in this section.
Radiological compounds or nuclear material shall be regulated by this chapter subject to the limits contained in the Atomic Energy Act, as amended, 42 U.S.C. 2011 et seq. and other applicable federal and state laws.
(8) Hazardous Materials Commander or HMC means the Officer in Charge of Special Operations for the division of fire and emergency services, or other designee by the Chief of the division of fire and emergency services.
(9) Hazardous Materials Platoon Leader or HMPL means the commanding officer for each of the three platoons for the division of fire and emergency services.
(10) Hazardous Materials Team or HMT means a specially trained and equipped multi-disciplinary unit responsible for the implementation of the inspection, enforcement and emergency response provisions of this chapter.
(11) Owner/operator means the owner of a facility as well as any person with whom rests decision-making authority over the facility.
(12) Person means an individual, trust, firm, corporation, joint stock company, partnership, consortium, association, cooperative, joint venture, city, county, city and county, district, the state or any department or agency thereof, the United States or any department of agency thereof, or other commercial or legal entities.
(13) Petroleum product means gasoline, oil and lubricants of any kind or in any form, including but not limited to virgin, used and mixtures of petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil.
(14) Secondary containment means a system installed so that any volume of hazardous materials discharged from the primary system of containment will be prevented from reaching the environment beyond the system for the period of time anticipated to be necessary for the detection and recovery of the discharged hazardous materials.
(15) Unauthorized discharge means any discharge which is made unlawful pursuant to section 16A-3.
(16) Underground storage tank means any one (1) or combination of tanks (including underground pipes connected thereto) which is used to contain an accumulation of regulated substances, and the volume of which (including the volume of the underground pipes connected thereto) is ten (10) percent or more beneath the surface of the ground. Such term does not include any:
(a) Farm or residential tank of eleven hundred (1100) gallons or less capacity used for storing motor fuel for noncommercial purposes;
(b) Septic tank;
(c) Pipeline facility (including gathering lines) regulated under federal law;
(d) Surface impoundment, pit, pond or lagoon;
(e) Storm water or waste water collection system;
(f) Flow-through process tank;
(g) Liquid trap or associated gathering lines directly related to oil or gas production and gathering operations; or
(h) Storage tank situated in an underground area (such as a basement, cellar, mineworking, drift, shaft, or tunnel) if the storage tank is situated upon or above the surface of the floor.
The term "underground storage tank" shall not include any pipes connected to any tank which is described in (a) through (h) above.
Section 2 - That section 16A-4 of the Code of Ordinances be and hereby is amended to read as follows:
Sec. 16A-4. - Reporting; reportable quantities.
(1) It shall be unlawful for any owner/operator or other person in possession or control of any facility where hazardous materials are handled to fail to report to the division of fire and emergency services any unauthorized or nonexempt discharge in a quantity equal to or exceeding those quantities identified as reportable quantities under the Clean Water Act and the Comprehensive Environmental Response, Compensation and Liability Act at 40 CFR part 302 and amendments thereto;
(2) Subsection (1) of this section shall not apply to:
(a) The discharge of any hazardous material under a permit authorized by any ordinance of the urban county government.
(b) A discharge which is authorized pursuant to state or federal law.
(c) Material deposited in or conducted into the urban county government sewer system through lawful drains in accordance with the ordinances of the urban county government relating thereto.
(d) Discharges which do not cause hazardous materials to leave the premises where such discharge occurred, provided such materials are collected in secondary containment, except that any discharge on premises in a location where such materials could enter the soil or any drain, well, groundwater, surface water, storm sewer or sanitary sewer must be recorded even where such material has been contained to the satisfaction of the person discharging such material. Such record shall identify the date and time of the discharge, the hazardous material discharged, the quantity discharged, and action taken to clean up the affected area and to dispose of discharged material. This record must be kept on site and made available to the HMT upon request.
(e) Application of agricultural chemicals in the ordinary course of agricultural operations.
(f) Application of hazardous materials in the ordinary course of any treatment of property for insects, weeds or any other treatment provided such application is in the ordinary course of business and the person making the application has obtained any permit or license required by any law other than this chapter.
(g) Application or use of hazardous materials only in conjunction with residential use of property.
(h) Application or use of hazardous materials only in the manner for which such hazardous materials were intended according to manufacturer's specifications and recommendations or application of such materials according to good industry practices.
(3) Persons otherwise exempted from reporting requirements pursuant to section 16A-4(2)(f) and (h) herein must report spills or intentional or unintentional discharges which occur during such applications which are not within the ordinary course of business or within manufacturer's specifications and/or recommendations.
(4) It is not intended that the notice required by this section be deemed compliance with any reporting requirement of any state or federal law.
(5) A person is subject to the reporting requirements contained in this section even though such person is not subject to registration pursuant to this chapter.
(6) When a discharge occurs from a transportation accident, the first responders-division of police and/or division of fire and emergency services-shall be responsible for reporting such discharge according to the requirements of this section for other discharges.
Section 3 - That Section 16A-5 of the Code of Ordinances be and hereby is amended to read as follows:
Sec. 16A-5. - Restoration.
(1) Any Owner/operator or Person who discharges, or causes or permits the discharge of any hazardous material into the environment shall be responsible for taking cost-effective remedial action to return the environment to the extent practicable to the condition and quality which existed prior to such discharge, even if the quantity discharged is less than the reportable discharge quantity listed above. Any Owner/operator or Person who discharges or causes or permits a discharge of any hazardous material into the environment, which requires any urban county government HazMat team member, any member of the Division of Fire and Emergency Services, or any agent of the urban county government to spend public funds for the response to the release, its abatement, cleanup or removal, shall be liable to the urban county government for the urban county government's actual and necessary costs, including but not limited to the cost of urban county government personnel and equipment utilized, expended in response to the discharge.
(2) Persons not subject to registration requirements pursuant to this chapter shall remain responsible for the proper cleanup and disposal of any discharged material.
(3) In the event of a discharge of hazardous materials, the HMC or HMPL or their designee shall be authorized to:
(a) Direct the Owner/operator or Person responsible for the discharge of hazardous materials to properly restore the environment and damaged property;
(b) Authorize personnel from the division of fire and emergency services to undertake efforts to restore the environment and damaged property; or
(c) Authorize the hiring of a Clean up contractor by the division of fire and emergency services to undertake efforts to restore the environment and damaged property.
(4) Should the hiring of a Clean up contractor be authorized, it shall be the responsibility of the Clean up contractor as an agent for the responsible party, to assure that the environment is restored and damages repaired to an acceptable degree. A written report documenting the actions taken shall be submitted to the HMC of the division of fire and emergency services. The responsible party shall cooperate fully with the cleanup contractor, local, state, and federal authorities.
Section 4 - That Section 16A-6 of the Code of Ordnances be and hereby is amended to read as follows:
Sec. 16A-6. - Closure of facilities.
Upon closure or termination of handling of hazardous materials at a registered facility, the person who owns or operates said facility shall notify the urban county government in writing of such closure. In the event the facility handled extremely hazardous substances (EHS) or required Tier 2 submits, the Local Emergency Planning Committee (LEPC) shall also be notified.
Nothing contained in this section is intended to supersede any requirement of state or federal law related to procedures for closure of facilities.
Section 5 - That Section 16A-7 of the Code of Ordinances be and hereby is amended to read as follows:
Sec. 16A-7. - Hazardous materials inventory.
(1) Those facilities required by the Superfund Amendments and Reauthorization Act (SARA) of 1986, Title III, and any regulations promulgated thereunder, to submit annually an emergency and hazardous chemical inventory form shall be subject to the reporting requirements of this section.
(2) Any facility that reports Tier II information to the Fayette County Local Emergency Planning Committee (FCLEPC) and the division of fire and emergency services shall be required to use the electronic reporting software specified by that agency.
(3) Any person who begins handling hazardous materials after May 18, 1986, shall complete an inventory form within thirty (30) days after first handling such materials.
Section 6 - That Section 16A-8 of the Code of Ordinances be and hereby is deleted in its entirety.
Section 7 - That Section 16A-9 of the Code of Ordinances be and hereby is deleted in its entirety
Section 8 - That Section 16-10 of the Code of Ordinances be and hereby is deleted in its entirety.
Section 9 - That Section 16A-11 of the Code of Ordinances be and hereby is renumbered as Section 16A-8 and amended to read as follows:
Sec. 16A-8. - Spill prevention and control plan (SPC plan).
(1) A spill prevention and control plan ("SPC") shall be prepared by the owner/operator or other person in possession or control of any facility where the amount of hazardous materials handled are equal to or in excess of a reportable quantity as defined by the United States Environmental Protection Agency, and shall be kept on site at all times.
(2) All persons that have or that are required to prepare an SPC plan shall sign a certificate stating that they have read, understand and agree to implement the plan.
(3) Copies of the SPC plan shall be kept on the premises affected and shall be readily available to inspectors upon request any time during working hours and any time during emergency situations.
(4) The SPC plan shall be updated every three (3) years or when changes of operation occur at the facility or some other change occurs which may affect the adequacy of the existing SPC plan. If no changes of operation have occurred since the last SPC plan update, a written statement to that effect from the owner/ operator of the facility shall be sufficient to update the SPC plan.
(5) The division of fire and emergency services, HMC, HMPL and division of water quality and other applicable local and state agencies shall have the authority to review a facility's hazardous materials management practices when such facility has a discharge and does not have an existing SPC or SPCC plan.
(6) General provisions for the SPC plan shall include:
(a) Information to identify firm and facility where materials are handled;
(b) Description of facility and site;
(c) Identification of hazardous materials storage, transfer and process areas, including a map;
(d) Techniques to prevent and control discharges;
(e) Measures to ensure against fire and explosion;
(f) Self-inspection and monitoring schedules;
(g) Contingency plan, including spill notification procedures and availability of spill control equipment;
(h) Employee training in handling and disposal of hazardous materials;
(i) Hazardous materials data sheets (HMDS) where appropriate.
(7) All SPC plans shall include an implementation schedule for prevention and containment measures which are to be undertaken. The schedule shall identify those measures which may be implemented immediately due to insubstantial cost factors. More costly measures shall be implemented as soon as practical, and all measures shall be completed and implemented within two (2) years from the date of the plan.
Section 10 - That Section 16A-12 of the Code of Ordinances be and hereby is renumbered as Section 16A-9 and amended to read as follows:
Sec. 16A-9. - Hazardous materials commander.
The Fire Chief of the division of fire and emergency services, or his or her designee from within the division's Special Operations Division , shall be the Hazardous Materials Commander ("HMC") for Fayette County. The HMC must have experience in and be qualified in the area of hazardous materials management. The HMC shall be responsible for the emergency response functions of this chapter. The HMC shall be a member and the leader of the hazardous materials team and shall coordinate all activities of that team. The HMC shall be responsible for implementation of emergency response management consistent with best practices regarding mitigation of hazardous materials.
Section 11 - That Section 16A-13 of the Code of Ordinances be and hereby is deleted in its entirety.
Section 12 - That Section 16A-14 of the Code of Ordinances be and hereby is renumbered as Section 16A-10 and amended to read as follows:
Sec. 16A-10. - Hazardous materials team ("HMT").
(1) The HMT shall review and analyze regular delivery and shipment routes of hazardous materials transported within the county and may propose regulations, not inconsistent with this chapter or any applicable state or federal law, designating traffic routes and other specific procedures for transportation of hazardous materials.
(2) The HMT shall perform periodic inspections of every site or facility which handles hazardous materials in reportable quantities according to published guidelines to assure compliance with the provisions of this chapter. Inspections may include but are not limited to a request to review the on-site copy of a facility's SPC Plan and performance of tests, generally accepted in the industry, to determine if unsafe conditions exist. Every effort shall be made to coordinate such periodic inspections with other required local inspections by state, federal or other governmental entity, in order to minimize inconvenience and duplication.
(3) The HMT shall cooperate with federal, state and other local authorities in protecting life, property, and the environment.
(4) The HMT shall propose and promulgate rules and regulations not inconsistent with this chapter to provide for implementation of the team's duties and responsibilities.
(5) The HMT shall be responsible for monitoring the mitigation of all incidents involving hazardous materials, including emergency response and oversight of cleanup activities by a licensed cleanup contractor.
Section 13 - That Section 16A-15 of the Code of Ordinances be and hereby is deleted in its entirety.
Section 14 - That Section 16A-16 of the Code of Ordinances be and hereby is deleted in its entirety.
Section 15 - That Section 16A-17 of the Code of Ordinances be and hereby is deleted in its entirety.
Section 16 - That Section 16A-18 of the Code of Ordinances be and hereby is renumbered as Section 16A-11.
Section 17 - That Section 16A-19 of the Code of Ordinances be and hereby is renumbered as Section 16A-12 and amended to read as follows:
Sec. 16A-12. - Hazardous materials emergency response management program.
The division of fire and emergency services' Hazardous Materials Team will function under the NIMS, ICS and Unified command system for coordination of efforts at the local level with those at the state and federal level in responding to issues affecting life, safety, property, environmental emergencies, or weapons of mass destruction, which result from the transportation or handling of hazardous materials within the county.
Section 18 - That Section 16A-20 of the Code of Ordinances be and hereby is deleted in its entirety.
Section 19 - That Section 16A-21 of the Code of Ordinances be and hereby is deleted in its entirety.
Section 20 - That Section 16A-22 of the Code of Ordinances be and hereby is renumbered as Section 16A-13.
Section 21 - That Section 16A-23 of the Code of Ordinances be and hereby is renumbered as Section 16A-14.
Section 22 - That Section 16A-24 of the Code of Ordinances be and hereby is renumbered as 16A-15 and amended to read as follows:
Sec. 16A-15. - Enforcement; notice of violations.
(1) The Fire Chief of division of fire and emergency services, or his or her designee from within the Special Operations Division, shall have primary responsibility for enforcement of the provisions of this chapter.
(2) Any person, including private citizens, may initiate action against any person who is violating the provisions of this chapter by notifying the division of fire and emergency services' Special Operations Division.
(3) Upon notification or discovery of any violation of the provisions of this chapter, a member of the HMT 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 premises upon which the violation has occurred, if the identity of the responsible person is known. If appropriate, the notice shall demand abatement of the violation within twenty-four (24) hours unless the violation constitutes an immediate danger to the health and well-being of the community, in which case the notice shall demand that abatement procedures begin immediately. If the violation resulted in hazardous materials being discharged, cleanup procedures shall commence immediately following abatement and shall be completed with all deliberate speed. The notice shall also include the following where appropriate:
(a) A statement that if the situation is not remedied within the prescribed time, the urban county government will proceed to correct the violation, if it is of the type which may be so corrected.
(b) A statement that the person shall be liable for any costs to the urban county government incurred in correcting the violation. The cost shall be incurred by the person or entity when any division of fire and emergency services HazMat team member, any member of the division of fire and emergency services, or any agent of the urban county government spends public funds for the response to the release, its abatement, cleanup or removal and such cost shall include the urban county government's actual and necessary costs, including but not limited to the cost of urban county government personnel and equipment utilized, expended in response to the discharge or the cost of contracting for the same. The total amount of cost to be charged to the person or entity shall be determined by the HMC or HMPL.
(c) A statement that after the urban county government has corrected the violation, the commissioner of finance will send a bill for the cost of the measures taken to correct the violation, including any administrative cost, to the person responsible; and if the bill is not paid within three (3) months, the urban county government, through its law department, shall have authority to initiate action in any court having jurisdiction over such matter, to recover the government's costs incurred in correcting the violation.
(4) In cases where the identity of a person who is responsible for premises upon which a violation has occurred is not known at the time a violation is reported, the urban county government, pursuant to this chapter, shall take reasonable steps to abate any problem and shall take reasonable steps to clean up the area affected to assure continuing safety of the public and the environment. When the identity of the responsible person is determined, a bill for the cost of measures taken to correct the violation shall be sent to the person and pursued according to the provisions of subsection (3) above.
Section 23 - That Section 16A-25 of the Code or Ordinances be and hereby is renumbered as Section 16A-16 and amended to read as follows:
Sec. 16A-16. - Penalties.
(1) Any person failing to comply with the inventory provisions of this chapter as specified in section 16A-7 shall be guilty of a violation and and fined up to two hundred and fifty dollars ($250.00) if the violator is an individual or five hundred dollars ($500.00) if the violator is a corporation after having received notification from the urban county government of their failure to comply. Each day's failure to comply shall be deemed a separate violation.
(2) Any person failing to perform the duties required by the provisions of section 16A-8 relating to SPC plans, section 16A-5 relating to restoration, or section 16A-6 relating to closure shall be guilty of a violation and for every offense be fined not less than up to two hundred and fifty dollars ($250.00) if the violator is an individual or five hundred dollars ($500.00) if the violator is a corporation. Each day's continuance of any such failure or violation shall be a separate violation.
(3) Any person violating the provisions of section 16A-3 relating to discharges shall for every offense be sentenced to a term of imprisonment not to exceed twelve (12) months in the county detention center, or fined up to five hundred dollars ($500.00) if the violator is an individual or ten thousand dollars ($10,000) if the violator is a corporation, or both. Each day's continuance of any such failure or violation shall be a separate offense.
(4) Any person failing to perform the duties required by the provisions of section 16A-4 relating to the reporting of discharges shall for every offense be sentenced to a term of imprisonment of not to exceed twelve (12) months in the county detention center, or fined in an amount not less than two hundred fifty dollars ($250.00) nor more than ten thousand dollars ($10,000.00), or both. Each day's continuance of any such failure or violation shall be a separate offense.
(5) Any person violating any of the provisions of this chapter shall become liable to the urban county government for any expense, loss or damage caused to the urban county government by reason of such violation, including but not limited to any cleanup, evacuation, administrative or other expenses, including legal expenses, incurred. The commissioner of law is hereby authorized and directed to initiate such proceedings, in the name of the urban county government, in any court having jurisdiction over such matter, as are necessary to recover costs to the urban county government caused by the violation.
Section 24 - That Section 16A-26 of the Code of Ordinances be and hereby is deleted in its entirety.
Section 25 - That Section 16A-27 of the Code of Ordinances be and hereby is renumbered as Section 16A-17.
Section 26 - That this Ordinance shall become effective on April 1, 2013.
PASSED URBAN COUNTY COUNCIL:
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MAYOR
ATTEST:
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CLERK OF URBAN COUNTY COUNCIL