HomeMy WebLinkAboutAgenda - 10-17-1995 - X-B ORANGE COUNTY
BOARD OF COMMISSIONERS
Action Agenda
ACTION AGENDA ITEM ABSTRACT Item No -Z--a
Meeting Date: October 17 , 1995
SUBJECT: HazMat Ordinance
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DEPARTMENT Emergency Management PUBLIC HEARING YES NO x
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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
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PURPOSE: To receive a report on a proposed "Orange County Oil
Pollution and Hazardous substances Control Ordinance" .
BACKGROUND; At the February 6 , 1995 meeting, the County Commissioners
received a report an a proposed "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 draft ordinance presented at that time contemplated the development
of a Memorandum of Agreement between the State Division of
Environmental Management and the County, which 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. Efforts by the County Attorney to complete an
agreement with DEM since the February 1995 report have not been
productive. Accordingly, the Attorney has revised the proposed
ordinance to accomplish the same purposes outlined in the previous
draft ordinance, by relying on other statutory authority available to
the County.
Staff will respond to Board comments or questions, and bring the
ordinance back for formal adoption by the Board at a future meeting .
RECOMMENDATION: The Manager recommends that the Board receive the
report for information only - no action is required at this time.
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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 . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Sec . 3 . 1 Inspections and Investigations . . . . . . . . 7
Sec . 3 . 2 Entry Upon Land . . . . . . . . . . . . . . . . . . . . . . . 7
Sec . 3 . 3 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . 7
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
ARTICLE VI Enforcement Procedures . . . . . . . . . . . . . . . . . . . . . 14
Sec . 6 . 1 Criminal Penalties . . . . . . . . . . . . . . . . . . . . 14
Sec . 6 . 2 Civil Penalties . . . . . . . . . . . . . . . . . . . . . . . 14
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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 contained in North Carolina General Statute Sections 153A
-121 and 140 .
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 Ordinance 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, 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. §§ 1251 et seq. ,
as amended, the National Contingency Plan for removal of oil
adopted pursuant thereto, and the State Oil Pollution and Hazardous
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Substances Control Act of 1978, as amended, N. C. Gen. Stat . §§ 143-
215 . 75 et seq.
Further, it is the intent of this Ordinance that the Director
of Emergency Management or his or her agents shall have the
authority to summarily abate, 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 in
such a way as to constitute a public health nuisance . The Director
of Emergency Management or his or her agents 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 severance shall not
effect the enforceability of the remaining provisions of the
Ordinance.
Sec . 1 . 5 Applicability
Pursuant to North Carolina General Statutes §153A-122 this
Ordinance may apply within the corporate limits of any municipality
located within Orange County after the municipality, by resolution,
permits the Ordinance to be applicable within the municipality.
Sec . 1 . 6 Construction
Words importing the masculine gender shall include the
feminine and words importing the feminine shall include the
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masculine.
ARTICLE II DEFINITIONS
"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 .
"Board" or "Board of Commissioners" shall mean the orange
County Board of County Commissioners.
"Bona fide farm purposes" include the production and
activities relating to or incidental to the production of crops,
fruits, vegetables, ornamental and flowering plants, dairy,
livestock, poultry, and all other forms of agricultural products
having a domestic or a foreign market .
"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 or her designees .
"County Manager" shall mean the Orange County Manager or any
of his or her designees.
"Department of Emergency Management" shall mean the Orange
County Department of Emergency Management .
"Designee" or "Designees" 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
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Management Forces .
"Director of Emergency Management" shall mean the Orange
County Director of Emergency Management or any of his or her
designees .
"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 the land of the County, 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 . § 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 engaged in a bone fide
farm purpose on a bona fide farm or accepted 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 North Carolina Pesticide Law, as amended, shall
not constitute a "discharge" for purposes of this Ordinance.
"Emergency Management Forces" , for purposes of this Ordinance
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shall mean the employees, equipment and facilities of all County
departments, boards, councils, institutions and commissions
directed to take part in any inspection, investigation or
restoration under this Ordinance; and in addition, it shall include
all directed 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, safety or welfare, as
designated pursuant to N. C. Gen. Stat . § 143-215 . 77A, as amended
or constitutes a public health nuisance .
"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 liquid hydrocarbons, regardless of specific gravity,
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whether singly or in combination with other substances .
"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.
"Public health nuisance" shall include any discharge which is
determined to be dangerous or prejudicial to the public health.
"Premises" shall mean any real or personal property involved
in a discharge contrary to the provisions of this Ordinance .
"Restoration" or "restore" shall mean any activity or project
undertaken in the public interest or to protect the 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 or to abate a public health nuisance .
"Superior Court" shall mean Orange County Superior Court .
"Waters" shall mean any stream, river, creek, brook, run,
canal, swamp, lake, 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 .
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ARTICLE III INVESTIGATIONS
Sec . 3 . 1 Inspections and Investicfations
The Department of Emergency Management 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 Emergency Management Forces directed to take part in any
inspection, investigation or restoration are empowered upon
presentation of identification 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 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.
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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 . Any discharge occurring in
violation of this section constitutes a public health nuisance and
is hereby determined to be detrimental to the health, safety and
welfare of the citizens of Orange County.
(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:
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
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political subdivisions including Orange County.
d. 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 . § 143-215 . 1, as amended and
shall file a copy of the permit with the Department of Emergency
Management prior to discharge.
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
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
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not become the owner of the land as the result of and participate
in 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 - 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 regardless of whether the discharge is in
violation of this Ordinance . 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
activities that are designed to protect the public health, safety
or welfare, or public property, or abate a public health nuisance
and shall be compatible with the National Contingency Plan
established pursuant to the Federal Water Pollution Control Act, as
amended, 33 U.S. C. §§ 1251 et seq.
(c) Cooperation with County - In any removal undertaken by
the County the person having control over such hazardous materials
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shall assist in the 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 and orders of the
Director of Emergency Management or his or her designees .
(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 as described in Subsection 4 . 1 (c) of this
Ordinance, 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 designees, of the
nature, location and time of the discharge and of the measures
which are being taken or are proposed to be taken to contain and
remove the discharge. The designee 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
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regulated by the North Carolina Pesticide Board, the Director of
Emergency Management or his or her designee 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 . § 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 or abatement conducted
pursuant to the provisions of this Ordinance each department of the
County that has participated by furnishing personnel, equipment or
material 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.
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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 or if the discharge is
one resulting from a bona fide farm purpose that has occurred on a
bona fide farm.
Sec. 5 . 3 Contested Charges
A person contesting a demand for payment made pursuant to
Section 5 . 2 shall have ten (10) days from receipt of the demand for
payment to request that the matter be considered by the Board of
County Commissioners . The final decision of the Board may be
appealed to Superior Court within 30 days of the date of that
decision in an action in the nature of certiorari .
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
projects and activities arising from such discharge and the County
shall have a claim 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
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by the County the amount shall be a lien upon the land or premises
where the discharge occurred, and shall be collected as unpaid
taxes .
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 . §14-4 .
Sec . 6 . 2 Civil Penalties
(a) Any person who intentionally or negligently discharges
oil or other hazardous substances, or knowingly causes or permits
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 the amount of one thousand dollars ($1, 000 . 00)
for every such violation. 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 subject to the
penalty herein provided. The penalty herein provided 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
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penalty is due. A person may contest a penalty by filing a written
request for reconsideration with the Board of County Commissioners
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, or within 30 days of the Board
deciding any request for reconsideration, the County Manager shall
request that the County Attorney institute a civil action in
Superior Court to recover the amount of the assessment .
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