Beware Environmental Regulations Lurking in City Codes

Water Law, Environmental

6/8/2017 by Jeanette Schuster

Beware Environmental Regulations Lurking in City Codes
When most people think of environmental regulations, they think of the federal government (United States Environmental Protection Agency or "EPA") and state agencies (Oregon Department of Environmental Quality or "DEQ"). However, environmental requirements also lurk in city ordinances. While such local requirements are often tied to the issuance of a building permit and cannot be avoided, operators of an existing facility may not be aware of them and therefore fail to implement them. This risks possible enforcement actions and fines. An example is the Oregon Wellhead Protection Program, a state program required by the federal Safe Drinking Water Act to protect the public drinking water supply. While multiple agencies are involved in this program, including DEQ, the Oregon Health Division and the Water Resources Department, the program is implemented locally by cities or counties, mostly through drinking water protection ordinances. These ordinances define the groundwater resource as a mapped zoning overlay area and impose specific requirements for land uses and development within the boundaries of groundwater-zoned areas. Requirements may include the prohibition of various land uses, subdivision controls, special permitting or siting requirements, and performance standards. Because the requirements for groundwater protection are dependent on various land uses and groundwater aquifer conditions, local wellhead protection programs vary from community to community.
In Portland, the local wellhead protection area is the Columbia South Shore Well Field Wellhead Protection Area, which encompasses areas of the cities of Fairview, Gresham, and Portland. Each of these cities has an ordinance to implement and enforce a wellhead protection program for its portion of the area. A map of the Columbia South Shore Well Field Wellhead Protection Area is below.

Businesses located within the boundaries of the Columbia South Shore Well Field Wellhead Protection Area are regulated if they transport, use or store certain chemicals over set threshold amounts, including certain hazardous substances (at 50 gallons or 400 pounds in the aggregate), fuel (at 50 gallons per container or 400 pounds), and petroleum products (at 50 gallons per container or 400 pounds).

With the exception of businesses that trigger only the "petroleum products" category, businesses that trigger any of these thresholds must implement multiple requirements, including operational, non-structural best management practices (such as good housekeeping), structural source control measures (such as covering loading/unloading areas), employee training, spill prevention, and submission of an annual inventory report detailing the business' chemical use. Businesses that trigger only the "petroleum products" category must only submit the annual report. Thus, a business that stores one 55-gallon drum of hydraulic oil is required to submit an annual inventory report, whereas a business that stores one 55-gallon of diesel must comply with all of the program requirements.
The requirements under any wellhead protection program are in addition to stormwater-related requirements under state and local programs; however, in cases where federal or state regulations impose equivalent requirements, conformance with the federal or state requirements may satisfy the local requirements so long as they are as stringent. Practically speaking, this means that it is possible for a business to be in substantive compliance with the wellhead protection program, but still be in violation of the program because it did not file its annual inventory report. The duty to comply is broadly imposed on owners, operators, or tenants of a facility, and once a non-conforming use is discovered (other than the annual reporting), the owner, operator, or tenant must remedy it within 60 days or submit a compliance plan that details how the non-conforming uses will be corrected.
Many small communities in Oregon also have wellhead protection programs. Therefore, no matter where a business is located, its use of chemicals should be reviewed to ensure compliance with all requirements, including local ones. In an era of increasing public scrutiny of businesses' environmental practices, violations of environmental requirements are best avoided.