HomeMy WebLinkAboutAgenda - 02-06-1995 - X-C 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
Action Agenda
Item No
ACTION AGENDA ITEM ABSTRACT
Meeting Date: February 6, 1995
SUBJECT: HazMat Ordinance
-----------------------------------------------------------------------
DEPARTMENT Emergency Management PUBLIC HEARING YES NO x
-------------------------------- -------------------------------
ATTACHMENT(S) INFORMATION CONTACT
Draft Ordinance Nick Waters, ext 3030
Douglas Thoren, 732-2196
TELEPHONE NUMBER
Hillsborough 732-8181
Chapel Hill 968-4501
Mebane 227-2031
Durham 688-7331
-----------------------------------------------------------------------
PURPOSE: To receive a report on a proposed "Orange County Oil
Pollution and Hazardous Substances Control Ordinance" .
BACKGROUND: The County Attorney's Office, working in conjunction with
the Emergency Management Department, has produced a draft "Orange
County Oil Pollution and Hazardous Substances Control Ordinance" . The
ordinance would protect the land and waters over which Orange County
has jurisdiction from pollution by oil and other hazardous substances.
It would afford the County a legal basis for recovering costs of the
County and other local emergency response agencies incurred during
responses to control or mitigate the effects of hazardous materials
spills.
The ordinance, in combination with a Memorandum of Agreement
(currently under development) between the State Division of
Environmental Management and the County, also would provide the
Director of Emergency Management and his agents the authority to take
immediate steps to control or mitigate a hazardous materials spill on
private property. The Orange County Local Emergency Planning Committee
(LEPC) has reviewed and provided comments on drafts of the ordinance at
its November 1994 meeting.
Staff requests that the Board provide comments, questions, or direction
concerning the draft ordinance at the February 6 meeting. Staff plans
then to complete coordination with the State and bring a final version
of the ordinance back to the Board for consideration later this year.
RECOMMENDATION: The Manager recommends that the Board receive the
report for information only - no action is required at this time.
jq4 2
DRAFT �a �r
ORANGE COUNTY OIL POLLUTION AND HAZARDOUS
SUBSTANCES CONTROL ORDINANCE
TABLE OF CONTENTS
ARTICLE I General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sec. 1. 1 Long Title and Authority . . . . . . . . . . . . . . 1
Sec. 1.2 Short Title . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sec. 1.3 Intent and Purpose . . . . . . . . . . . . . . . . . . . . 1
Sec. 1.4 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Sec. 1.5 Applicability . . . . . . . . . . . . . . . . . . . . . . . . . 2
Sec. 1. 6 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLEII Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLEIII Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Sec. 3.1 Inspections and Investigations . . . . . . . . 6
Sec. 3.2 Entry Upon Land . . . . . . . . . . . . . . . . . . . . . . . 7
Sec. 3. 3 Governmental Immunity . . . . . . . . . . . . . . . . . 7
Sec. 3.4 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV Oil and Hazardous Discharge Controls . . . . . . . 8
Sec. 4 . 1 Discharges . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Sec. 4.2 Removal of Prohibited Discharges . . . . . . 9
Sec. 4.3 Required Notice . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V Collection of Expenses . . . . . . . . . . . . . . . . . . . . . 12
Sec. 5. 1 Determination of Expenses . . . . . . . . . . . . . 12
Sec. 5.2 Demand for Payment . . . . . . . . . . . . . . . . . . . . 13
Sec. 5.3 Contested Charges . . . . . . . . . . . . . . . . . . . . . 13
Sec. 5.4 Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
i
3
ARTICLE VI Enforcement Procedures . . . . . . . . . . . . . . . . . . . . . 14
Sec. 6 . 1 Criminal Penalties . . . . . . . . . . . . . . . . . . . . 14
Sec. 6 .2 Civil Penalties . . . . . . . . . . . . . . . . . . . . . . . 14
ii
4
ARTICLE I GENERAL PROVISIONS
Sec. 1. 1 Long Title and Authority
An ordinance providing for the control of oil and other
hazardous substances as well as to provide for the removal and
abatement of any discharge of oil and other hazardous substances on
the land or in waters of Orange County, adopted pursuant to the
authority of Article 21A of Chapter 143 and Article 6 of Chapter
153A of the North Carolina General Statute.
Sec. 1.2 Short Title
This Ordinance may be referred to as the "Orange County Oil
Pollution and Hazardous Substances Control Ordinance. "
Sec. 1.3 Intent and Purpose
It is the purpose of this article to promote the health,
safety, and welfare of the citizens of Orange County by protecting
the land and the waters over which this County has jurisdiction
from pollution by oil, oil products, oil by-products, and other
hazardous substances. It is not the intention of this Ordinance to
exercise jurisdiction over any matter as to which the United States
government or the State of North Carolina, has exclusive
jurisdiction, nor in any wise contrary to any governing provision
of federal or state law, and no provision of this Ordinance shall
be so construed. Orange County further declares that it is the
intent of this Ordinance to support and compliment applicable
provisions of the Federal Water Pollution Control Act, 33 U.S.C. SS
1251 et seq. , as amended, the National Contingency Plan for removal
1
5
of oil adopted pursuant thereto, and the State Oil Pollution and
Hazardous Substances Control Act of 1978, as amended, N.C. Gen.
Stat. SS 143-215.75 et seq.
Further, it is the intent of this Ordinance that the Director
of Emergency Management or his agents or assigns shall have
the
authority summarily i y to summa y aba te, or remedy hazardous materials or oil
which are discharged into the environment in such a manner as to
endanger the health, safety, or welfare of the general public or
the environment. The Director of Emergency Management or his
agents or assigns shall determine the type, amount and quantity of
equipment and personnel required to adequately abate, and remedy
all hazardous materials or oils which are discharged into the
environment.
Sec. 1.4 Severability
Should any provision of this Ordinance be found to be
unconstitutional by a court of law, such provision shall be severed
from the remainder of the Ordinance, and such action shall not
effect the enforceability of the remaining provisions of the
Ordinance.
Sec. 1.5 Applicability
This Ordinance may apply within the corporate limits of any
municipality located within Orange County if the municipality by
resolution permits the Ordinance to be applicable within the
municipality. The municipality may withdraw its permission by
giving written notice to the County. Any withdraw shall be
effective 30 days after receipt by the County.
2
6
Sec. 1.6 Construction
Words importing the masculine gender shall include the
feminine and words importing the feminine shall include the
masculine.
ARTICLE II DEFINITIONS
"Agents and assigns" or "Agents or assigns" of either the
Department of Emergency Management or the Director or Emergency
Management may include, but not be limited to, any member of the
Emergency Management Forces.
"Bailee" shall mean any person who accepts oil or other
hazardous substances to hold in trust for another for a special
purpose and for a limited period of time.
"Carrier" shall mean any person who engages in the
transportation of oil or other hazardous substances for
compensation.
"County" shall mean Orange County, North Carolina.
"County Attorney" shall mean the Orange County Attorney or any
of his agents or assigns.
"County Manager" shall mean the Orange County Manager or any
of his agents or assigns.
"Department of Emergency Management" shall mean the Orange
County Department of Emergency Management or any of their agents or
assigns.
"Director of Emergency Management" shall mean the Orange
County Director of Emergency Management or any of his agents or
3
7
assigns.
"Discharge" shall mean, but shall not be limited to, any
emission, spillage, leakage, pumping, pouring, emptying, or dumping
of oil or other hazardous substances into waters of the County or
upon land in such proximity to waters that oil or other hazardous
substances is reasonably likely to reach the waters, but shall not
include amounts less than the quantities which may be harmful to
the public health or welfare as determined pursuant to N.C. Gen.
Stat. 5 143-215.77A, as amended, provided, however, that this
Ordinance shall not be construed to prohibit the oiling of
driveways, roads or streets for reduction of dust or routine
maintenance; provided further, that the use of oil or other
hazardous substances, oil-based products, or chemicals on the land
or waters by any State, County, or municipal government agency in
any program of mosquito or other pest control, or their use by any
person in accepted agricultural, horticultural, or forestry
practices, or in connection with aquatic weed control or structural
pest and rodent control, in a manner approved by the State, County,
or local agency charged with authority over such uses, shall not
constitute a discharge; provided further, that the use of a
pesticide regulated by the North Carolina Pesticide Board in a
manner consistent with the labeling required by the North Carolina
Pesticide Law shall not construe a "discharge,, for purposes of this
Ordinance. The word "discharge" shall also include any discharge
upon land, whether or not in proximity to waters, which is
intentional, knowing or willful.
4
8
"Emergency Management Forces" , for purposes of this Ordinance
shall mean the employees, equipment and facilities of all County
departments, boards, councils, institutions and commissions; and in
addition, it shall include all volunteer personnel, equipment and
facilities contributed by, or obtained from, volunteer persons or
agencies and all municipal personnel, equipment and facilities
contributed by, or obtained from, any municipality adopting this
Ordinance pursuant to Section 1.4.
"Having control over oil or other hazardous substances" shall
mean, but shall not be limited to, any person, using, transferring,
storing, or transporting oil or other hazardous substances
immediately prior to a discharge of such oil or hazardous
substances onto the land or into the waters of the County, and
specifically shall include carriers and bailees of such oil or
other hazardous substances.
"Hazardous substance" shall mean any substance, other than
oil, which when discharged in any quantity may present an imminent
and substantial danger to the public health or welfare, as
designated pursuant to N. C. Gen. Stat. S 143-215.77A, as amended.
"Oil" shall mean oil of any kind and in any form, including,
but specifically not limited to, petroleum, crude oil, diesel oil,
fuel oil, gasoline, lubrication oil, oil refuse, oil mixed with
other waste, oil sludge, petroleum related products or by-products,
and all other waste, oil sludge, petroleum related products or by-
products, and all other liquid hydrocarbons, regardless of specific
gravity, whether singly or in combination with other substances.
5
9
"Ordinance" shall mean the "Orange County Oil Pollution and
Hazardous Substances Control Ordinance. "
"Person" shall mean any and all natural persons, firms,
partnerships, associations, public or private institutions,
municipalities or political subdivisions, governmental agencies,
federal or state governments or private or public corporations
organized or existing under the laws of this State or any other
state or country.
"Restoration" or "restore" shall mean any activity or project
undertaken in the public interest or to protect public interest or
to protect public property or to promote the public health, safety
or welfare for the purpose of restoring any lands or waters
affected by an oil or other hazardous substances discharge as
nearly as is possible or desirable to the condition which existed
prior to the discharge.
"Superior Court" shall mean Orange County Superior Court.
"Waters" shall mean any stream, river, creek, brook, run,
canal, swamp, lake, sound, tidal estuary, bay, reservoir, waterway,
wetlands, or any other body or accumulation of water, surface or
underground, public or private, natural or artificial, which is
contained within, flows through, or borders upon this County, or
any portion thereof.
ARTICLE III INVESTIGATIONS
Sec. 3.1 Inspections and Investigations
The County, as an authorized representative of the North
6
10
Carolina Environmental Management Commission, is empowered to
conduct such inspections and investigations as shall be reasonably
necessary to determine compliance with the provisions of this
Ordinance; to determine the person or persons responsible for
violation of this Ordinance; to determine the nature and location
of any oil or other hazardous substances discharged to the land or
waters of this County; and to enforce the provisions of this
Ordinance.
Sec. 3.2 Entry Upon Land
The authorized representatives of the County are empowered
upon presentation of their credentials to enter upon any private or
public property for the purpose of inspection or investigation or
in order to conduct any project or activity to contain, collect,
disperse or remove oil or other hazardous substances discharges or
to perform any restoration necessitated by an oil or other
hazardous substances discharge.
Sec. 3.3 Governmental Immunity
Neither the County nor its departments, employees or agents
shall be liable in trespass or damages arising out of the conduct
of any inspection, investigation, or oil or other hazardous
substances removal or restoration project or activity other than
liability for damage to property or injury to persons arising out
of the negligent or willful conduct of an employee or agent of the
County during the course of an inspection, investigation, project
or activity.
7
r 11
Sec. 3.4 Confidentiality
Any information relating to a secret process, device or method
of manufacturing or production discovered or obtained in the course
of an inspection, investigation, project or activity conducted
pursuant to this Ordinance shall not be revealed except as may be
required by law or lawful order or process.
ARTICLE IV OIL AND HAZARDOUS DISCHARGE CONTROLS
Sec. 4. 1 Discharges
(a) Unlawful Discharges - It shall be unlawful, except as
otherwise provided in this Article, for any person to discharge, or
cause to be discharged, oil or other hazardous substances into or
upon any waters or lands within the County, or into any sewer,
surface water drain or other waters that drain into the waters of
this County, regardless of the fault of the person having control
over the oil or other hazardous substances, or regardless of
whether the discharge was the result of intentional or negligent
conduct, accident or other cause.
(b) Exceptions - This section shall not apply to discharges
of oil or other hazardous substances in the following
circumstances:
( 1) When the discharge was authorized by law, either
statutory or regulatory..
(2) When any person subject to liability under this
Article proves that a discharge was caused by any of the
following:
8
12
a. An act of God.
b. An act of war or sabotage.
C. Negligence on the part of the United
States government or the State of North
Carolina or its political subdivisions including Orange
County.
d. An act or omission of a third party,
whether any such act or omission was or was not
negligent.
e. Any act or omission by or at the
direction of a law-enforcement officer or
fireman.
(c) Permits - Any person who desires or proposes to discharge
oil or other hazardous substances onto the land or into the waters
of this County shall first make application for and secure the
permit required by N. C. Gen. Stat. S 143-215. 1, as amended.
Sec. 4.2 Removal of Prohibited Discharges
(a) Person Discharging - Any person having control over oil or
other hazardous substances discharged in violation of this
Ordinance shall immediately undertake to collect and remove the
discharge and to restore the area affected by the discharge as
nearly as may be to the condition existing prior to the discharge.
If it is not feasible to collect and remove the discharge, the
person responsible shall take all practicable actions to contain,
treat and disperse the discharge; but no chemicals or other
dispersant or treatment materials which will be detrimental to the
9
13
environment or natural resources shall be used for such purposes
unless they shall have been previously approved by the North
Carolina Environmental Management Commission. The owner of an
underground storage tank who is the owner of the tank only because
he is the owner of the land on which the underground storage tank
is located, who did not know or have reason to know that the
underground storage tank was located on his property, and who did
not become the owner of the land as the result of a transfer or
transfers to avoid liability for the underground storage tank shall
not be deemed to be responsible for a release or discharge from the
underground storage tank.
(b) Removal by County - Notwithstanding the requirements of
subsection (a) of this Section, the County is authorized and
empowered to utilize any staff, equipment, and materials under its
control or supplied by any other cooperating Federal, State or
local agencies and to contract with any agent or contractor that
it deems appropriate to take such actions as are necessary to
collect, investigate, perform surveillance over, remove, contain,
treat or disperse oil or other hazardous substances discharged onto
the land or into the waters of the County and to perform the
necessary restoration. The Director of Emergency Management shall
keep a record of all expenses incurred in carrying out any project
or activity authorized under this section, including actual
expenses incurred for services performed by the County's personnel
and for use of the County's equipment and material. The authority
granted by this subsection shall be limited to projects and
10
14
activities that are designed to protect the public interest or
public property, and shall be compatible with the National
Contingency Plan established pursuant to the Federal Water
Pollution Control Act, as amended, 33 U.S.C. SS 1251 et seq.
(c) Cooperation with County - In any removal undertaken by
the County the person having control over such hazardous materials
shall assist the Department of Emergency Management in abatement,
removal and remedial measures associated with the oil or hazardous
material discharge. Assistance shall consist of any or all of the
following:
( 1) Shall comply with the Direction of the Director of
Emergency Management or his agents or assigns.
(2) Shall supply emergency response plan information
available for the site of any discharge.
(3) Shall supply emergency response equipment personnel
and materials available on site.
Sec. 4 .3 Required Notice
Every person owning or having control over oil or other
substance discharged in any circumstances other than pursuant to a
rule adopted by the North Carolina Environmental Management
Commission, a regulation of the U.S. Environmental Protection
Agency, or a permit required by N.C. Gen. Stat. 5143-215. 1, as
amended, or the Federal Water Pollution Control Act, upon notice
that such discharge has occurred, shall immediately notify the
Department of Emergency Management or any of its agents or
employees, of the nature, location and time of the discharge and of
11
I5
the measures which are being taken or are proposed to be taken to
contain and remove the discharge. The agent or employee of the
Department of Emergency Management receiving the notification shall
immediately notify the Director of Emergency Management or such
member or members of the permanent staff of the Department or
Emergency Management as the Director may designate. If the
discharged substance of which the Department of Emergency
Management is notified is a pesticide regulated by the North
Carolina Pesticide Board, the Director of Emergency Management or
Fire'-- Marshall )shall immediately inform the Chairperson of the
Pesticide Board. Removal operations under this Section of
substances identified as pesticides defined in N.C. Gen. Stat. 5
143-460, as amended, shall be coordinated in accordance with the
Pesticide Emergency Plan adopted by the North Carolina Pesticide
Board; provided that, in instances where entry of such hazardous
substances into waters of the County is imminent, the Department of
Emergency Management may take such actions as are necessary to
physically contain or divert such substances so as to prevent entry
into the surface waters.
ARTICLE V COLLECTION OF EXPENSES
Sec. 5. 1 Determination of Expenses
Upon completion of any oil or other hazardous substances
removal or restoration project or activity conducted pursuant to
the provisions of this Ordinance each department of the County that
has participated by furnishing personnel, equipment or material
12
16
shall deliver to the Emergency Management Department a record of
the expenses incurred by the department. Upon completion of any
oil or other hazardous substances removal or restoration project or
activity, the Director of Emergency Management shall prepare a
statement of all expenses and costs of the project or activity
expended by the County and shall transmit this to the County
Manager.
Sec. 5.2 Demand for Payment
Upon receipt of the statement of expenses and costs from the
Director of Emergency Management, the County Manager shall make
demand for payment upon the person having control over the oil or
other hazardous substances discharged to the land or waters of the
County, unless the discharge has occurred due to any of the reasons
stated in Section 4. 1(b) of this Ordinance.
Sec. 5.3 Contested Charges
After receipt of the demand for payment from the County
Manager if the person having control over the oil or hazardous
substances discharged contests the charge, he or she shall have ten
(10) days from receipt to request that the matter be considered by
the Board of County Commissioners.
Sec. 5.4 Collection
Any person having control of oil or other hazardous substances
discharged to the land or waters of the County in violation of the
provisions of this Ordinance and any other person causing or
contributing to the discharge of oil or other hazardous substances
shall be directly liable to the County for the necessary cleanup
13
17
projects and activities arising from such discharge and the County
shall have a cause of action to recover from any and all such
persons. If the person having control over the oil or other
hazardous substances discharged shall fail or refuse to pay the sum
expended by the County, the County Manager shall either:
a) refer the matter to the County Attorney, who shall
institute an action in the name of the County in Superior
Court to recover such costs and expenses; or
b) deliver the statement of costs and expenses to the
North Carolina Department of Environment, Health, and Natural
Resources and request payment from the Oil or Other Hazardous
Substances Pollution Protection Fund pursuant to N.C. Gen.
Stat. 5143-215.88, as amended.
ARTICLE VI ENFORCEMENT PROCEDURES
Sec. 6. 1 Criminal Penalties
Any person who violates the provisions of this Ordinance or
fails to comply with any of its requirements shall, upon
conviction, be guilty of a misdemeanor and shall be punished as
provided in N.C. Gen. Stat. S14-4 or be guilty of a felony and
shall be punished as provided in N.C. Gen. Stat. 5143-215.88B to
the extent that violation of this Ordinance would also be a
violation of that provision.
Sec. 6 .2 Civil Penalties
(a) Any person who intentionally or negligently discharges
oil or other hazardous substances, or knowingly causes or permits
14
18
r
the discharge of oil in violation of this Ordinance or fails to
report a discharge as required by Section 4 .3 or who fails to
comply with the requirements of Section 4.2 (a) or orders issued by
the Department of Emergency Management as a result of violations
thereof, shall incur, in addition to any other penalty provided by
law, a penalty in an amount not to exceed five thousand dollars
($5,000 . 00) for every such violation, the amount to be determined
by the Director of Emergency Management after taking into
consideration the factors set out in N.C. Gen. Stat. S143B-
282. 1(b) , the amount expended by the violator in complying with the
provisions of Section 4.2 of this Ordinance, and the estimated
damages attributable to the violator under N.C. Gen. Stat. 5143-
215.90, as amended. Every act or omission which causes, aids or
abets a violation of this subsection shall be considered a
violation under the provisions of this subsection and subject to
the penalty herein provided. The procedures set out in N.C. Gen.
Stat. 5143-215.6 (a) (b) & (c) and N.C. Gen. Stat. S143B-282.1 shall
apply to civil penalties assessed under this section. The penalty
herein provided for shall become due and payable when the person
incurring the penalty receives a notice in writing from the County
Manager describing the violation with reasonable particularity and
advising such person that the penalty is due. A person may contest
a penalty by filing a petition for a contested case under N.C. Gen.
Stat. S150B-23, as amended, within 30 days after receiving notice
of the penalty. If any civil penalty has not been paid within 30
days after notice of assessment has been served on the violator,
15
19
the County Manager shall request the County Attorney to institute
a civil action in Superior Court to recover the amount of the
assessment, unless the violator contests the assessment as provided
in this subsection, or requests remission of the assessment in
whole or in part. If any civil penalty has not been paid within 30
days after the final agency decision or court order has been served
on the violator, the County Manager shall request the County
Attorney to institute a civil action in Superior Court to recover
the amount of the assessment. Notification received pursuant to
this subsection or information obtained by the exploitation of such
notification shall not be used against any person in any criminal
case except for prosecution for perjury or for giving a false
statement.
(b) The civil penalties provided by this section, except the
civil penalty for failure to report, shall not apply to the
discharge of a pesticide regulated by the North Carolina Pesticide
Board, if such discharge would constitute a violation of the North
Carolina Pesticide Law and if such discharge has not entered the
surface waters of the County.
16