ORDINANCE NO. 2005-_____
AN ORDINANCE REGULATING THE TREATMENT AND LAND APPLICATION OF SEWAGE SLUDGES
WHEREAS, the Fiscal Court of Hopkins County has determined that the enactment of an ordinance governing the treatment and land application of sewage sludges (the solid, semisolid, or liquid residue generated during treatment of domestic wastewater and domestic sewage) within the county is a necessary and appropriate exercise of the police powers of the county in order to prevent creation of nuisances, assure public protection and vector control, to assure conservation, preservation and enhancement of natural resources, and to regulate commerce for the protection and convenience of the public; and
WHEREAS, the Kentucky General Assembly has, through enactment of KRS 67.083, recognized the power of the Fiscal Court of Hopkins County to enact ordinances and issue regulations in order to prevent creation of nuisances, to regulate public sanitation and provide for vector control, to assure conservation, preservation and enhancement of natural resources, and to regulate commerce for the protection and convenience of the public; and
WHEREAS, the storage, treatment and land application of sewage sludges generated from private and publicly-owned sewage treatment systems represents a potential threat to human health and the environment unless properly managed and is a legitimate subject of regulation by the Fiscal Court of Hopkins County pursuant to KRS 67.083; and
WHEREAS, the Supreme Court of the Commonwealth of Kentucky has recognized that the regulation of sewage disposal is not solely within the province of state government, and that through KRS Chapters 67 and 224, county government has a legitimate role in regulation of the management of sewage sludges generated by private and publicly-owned sewage treatment systems; and
WHEREAS, the regulations promulgated by the Commonwealth of Kentucky governing the treatment, disposal and land application of sewage sludges are minimum standards which may be met or exceeded by local governments as necessary or advisable to assure protection of public health and the environment; and
WHEREAS, the National Academy of Sciences reviewed the 1993 federal regulations governing the land application of sewage sludge and has determined that there is a lack of exposure and health information on populations exposed to biosolids (sewage sludges meeting the federal requirements for land application), and that more rigorous study is needed concerning the exposure and health risks, or the lack thereof, in worker and community populations exposed to biosolids; and
WHEREAS, in the absence of such further study, and in light of the minimal nature of the permitting requirements of the state special waste regulations with respect to treatment and land application of sewage sludges, it is prudent and appropriate that the Fiscal Court of Hopkins County act to assure protection of public health and the environment in the treatment and use of sewage sludges, therefore
BE IT ORDAINED by the Fiscal Court of Hopkins County:
SECTION 1: DEFINITIONS
(A) As used in this ordinance, the term “sewage sludge” shall include the solid, semisolid, or liquid residue generated during treatment of domestic wastewater and domestic sewage.
(B) As used in this ordinance, “facility” means any property and any structure where sewage sludge is stored or treated and any land application of sewage sludges.
(C) As used in this ordinance, “land application” shall include any incorporation or blending of sewage sludge into land or placement of sewage sludge on or in land, including reuse of sewage sludge as a soil amendment or landfarming of sewage sludge. Land application does not include the disposal of sewage sludge in a municipal solid waste landfill or special waste landfill designed and constructed in accordance with KRS Chapter 224 and 401 KAR Chapters 45 – 48.
(D) As used in this ordinance, “treatment” shall mean “treatment” as defined in KRS 224.01-010.
SECTION 2: PROHIBITION
(A) No person shall construct or operate a commercial facility for storage, treatment or land application of sewage sludge in Hopkins County until a certificate of facility approval has first been obtained from the Hopkins County Fiscal Court or its agents pursuant to this ordinance.
(B) All provisions of this Ordinance apply to: (i) any facility that for which all necessary federal, state and local permit and authorizations for treatment or land application of sewage sludge have not been obtained as of the date of enactment of this ordinance; and (ii) expansions of existing permitted facilities.
(C) Consistent with KRS 224.50-(1)(e), this Ordinance shall not apply to a city, county, urban-county government, charter county government or special district as defined in KRS Chapter 65 that processes its own wastewater treatment sludge by composting on property owned or leased by the city, county, urban-county government, charter county government, or special district.
SECTION 3: PERFORMANCE STANDARDS
In addition to all applicable requirements of state law and regulation, including the requirements of 401 Kentucky Administrative Regulation Chapter 45, a facility shall comply with all of the following performance standards:
(A) All treatment of sewage sludge, including but not limited to aerobic or anaerobic treatment to reduce pathogens or to otherwise render the sewage sludge suitable for further handling, land application or disposal, shall occur in a controlled setting, with appropriate containment to assure no uncontrolled release to the environment of any liquids, gases, or other byproducts of treatment.
(B) No sewage sludge shall be transported to or from a facility or stored at a facility in a manner that allows for uncontrolled release to the environment of gaseous, liquid, semi-solid or solid components of the sewage sludge.
(C) No sewage sludge shall be managed, stored, disposed or reused in a manner that causes or may cause a nuisance.
(D) Each facility shall maintain during the operation of the facility and any post-closure care period a Commercial General Liability Policy, which policy shall cover any damages for bodily injury or property damage arising from the construction or operation of the facility. The facility shall provide to the County, on an annual basis, a certificate evidencing that the policy remains in effect. The County shall be listed on the policy to receive notice from the insurance company of any cancellation, reduction in coverage, change in coverage, claim, or of any event of whatever kind or nature which might impair the ability of the policy holder to comply with the provisions of this ordinance. The amount of the policy shall be determined by the County after review of the scope of the facility and nature of proposed activity to be conducted, and the potential risk to public health and the environment.
SECTION 4: FACILITY APPROVAL APPLICATION
(A) Any person seeking to construct or operate a facility shall submit an application to the Clerk of the Fiscal Court containing the following:
(1) A complete copy of all applications submitted to state, federal, or local agencies for any approvals, permits or authorizations needed to construct or operate the facility.
(2) The name and address of the person proposing to construct and operate the facility and the location, (including street address, if any) of the proposed site of the facility;
(3) A copy of the deed or other document establishing the right, title and interest of the person proposing to construct and operate the facility in the proposed site of the facility and documenting the authority of the person to enter the property and perform any necessary corrective action during facility closure and post-closure;
(4) A current USGS map showing the location of the proposed site, at a scale of one (1) inch equals two thousand (2,000) feet, with said map showing the entire boundaries of the facility;
(5) A description of the type of sewage sludge to be managed, the sources of the sewage sludge, and a description of the treatment and other management activities proposed to be conducted at the facility;
(6) A copy of all information required by KRS 224.40-330 to be filed with respect to each key personnel, which shall be updated as any changes or updates of key personnel information are filed with the Cabinet.
(7) Financial data demonstrating that the applicant has the financial capability to undertake all regulatory obligations relating to construction, operation, closure and post-closure care and corrective action at the proposed facility, including evidence of liability insurance.
(8) A signed and notarized acknowledgement by the sewage treatment facility that generated the sewage sludge, that the generator has read the application, is aware of the proposed method(s) of treatment and end utilization or disposal of the sewage sludge, approves of same, and further that the generator understands that to the extent that the sewage sludge or any constituent hazardous substances, pollutants, contaminants or other compounds are released into the environment in a manner that causes harm to human health or the environment, that the generator may share in liability for any injury or contamination.
(9) A copy of the public notice of the right to submit comments to the Hopkins County Fiscal Court pursuant to subsection (d) hereof;
(10) Evidence of notification by certified mail to adjoining property owners of the site of the intention to submit to the Hopkins County Fiscal Court a petition for approval of a facility. Property owners include:
(a) Property owners immediately adjacent to the site;
(b) Persons owning property in Hopkins County along transportation corridors providing direct access to the site which are within a one mile radius of the site;
(11) The following certification:
“I certify that I have personally examined and am familiar with the information submitted in this and all attached documents, and that based on my inquiry of those individuals responsible for obtaining the information, I believe the submitted information is true, accurate and complete.” The certification shall be signed by the person proposing to construct and operate a facility where:
(a) If the person proposing to construct and operate a facility is a corporation, by an authorized executive officer; or
(b) If the person proposing to construct and operate a facility is a partnership, by an authorized general partner; or
(c) If the person proposing to construct and operate a facility is a sole proprietor, by the proprietor; or
(d) If the person proposing to construct and operate a facility is a governmental agency, by the head of that agency.
(e) If the person proposing to construct and operate a facility is a limited liability company, by its members and/or manager.
(12) The applicant proposing to construct and operate a facility shall include with the petition for approval a facility impact report which shall:
(a) describe the current land use of the facility property;
(b) describe the land uses within 1 mile of the facility and ½ mile of the transportation routes from the proposed facility to the nearest primary roadway;
(c) identify on a map all schools, churches, public parks, agricultural land, nursing homes, hospitals, cemeteries, historic structures, and infant care facilities within 1 mile of the facility and of the transportation routes from the proposed facility to the nearest primary roadway;
(d) identify all roadways that will be used for haulage of the sewage sludge and access to the site within the county;
(e) include an analysis conducted by a qualified appraiser, of the impact of the facility location and operation on land values within 1 mile of the facility site;
(f) describe existing environmental conditions in the vicinity of the facility site, such description to include at a minimum:
(i) The geology of the property where any land application is proposed to occur, including the soil types to include soil permeability, stability and drainage, and the geology down through and including the aquifer zones in the area;
(ii) The hydrology and surface and groundwater quality and quantity in the area, including proximity to any aquifers and recharge areas and sensitive areas such as wetlands;
(iii) Proximity to public and private surface or groundwater supplies, including current and potential future uses, and the potential for contamination, diminution or other impact on those supplies from the land application of the sewage sludges;
(iv) Identification of state or federally listed significant, threatened or endangered species known to exist within the boundaries of the area proposed for land application, and in any waterbodies receiving runoff from those lands;
(g) An evaluation of the potential for emission of gases and odors and measures to be taken to prevent adverse effects to those handling, treating and land applying the sewage sludge and to the public, and to prevent nuisance conditions;
(h) identification of any areas within the site of any treatment or land application activities that are located in the floodplain;
(i) An cultural and archeological resources survey with a description of historic, archaeological and natural sites and landmarks, outstanding resource waters, public forest areas, dedicated or designated open space, public recreational areas, wildlife refuges, game lands and fishing waters within 1 mile of the facility boundary;
(j) A description of the transportation routes, schedule, frequency of deliveries, and the characteristics of structures and population, residential and nonresidential, within the transportation corridors that will be utilized by the facility;
(k) Nature, extent, quantity and impacts of anticipated discharge or releases to air, water and land from the treatment and land application of the sewage sludges, including storm water run off, and the human health and environmental consequences of such releases;
(l) Adequacy of emergency services (police, fire, medical) to protect human health, safety and environment from any fire, explosion, release or other accidents at the facility, including any proposed on-site emergency response capability;
(m) A complete characterization of the sewage sludge including appropriate analyses to demonstrate that as proposed to be stored, treated and land applied, the sewage sludges will not adversely affect human health and the environment during treatment and as proposed to be used;
(n) Plans, specifications, and supporting analyses demonstrating that the environmental performance standards of this ordinance and of the state special waste regulations will be met at all times in the treatment and proposed land application of the sewage sludge.
(o) A compliance sampling and monitoring plan, including a proposed schedule of periodic sampling of the sewage sludge before and after treatment in order to confirm that the sludge content is consistent with the initial characterization of the sludge in subsection (m), and periodic sampling of the treatment process and of the surface and subsurface of land to which the sewage sludges are applied and of runoff from that land, sufficient to demonstrate compliance with the environmental performance standards of state regulations and of this ordinance;
(o p) A closure and post-closure plan for the facility with estimates of closure and post-closure costs. The applicant shall demonstrate financial responsibility for post-closure by filing with the Hopkins County Judge/Executive a bond or establishing an escrow account in an amount equal to the anticipated costs of undertaking post-closure monitoring and other post-closure care activities.
(B) The person proposing to construct and operate a facility shall remit the siting fee or fees under section 6 of this ordinance at the time of filing a request for a certificate of approval.
(C) An application for a certificate of approval shall be submitted and served in the manner provided in this subsection.
(1) The application for a certificate of approval shall be submitted to the Hopkins County Fiscal Court by filing with the office of the County Judge/Executive. Within thirty working (30) days of the receipt of the petition for approval, the applicant shall be notified in writing whether the application is administratively complete. Additional information may be required during technical review of the application notwithstanding a determination that application is administratively complete. If the application is deemed to be incomplete, a notice of deficiency identifying the information needed to make the application administratively complete shall be issued.
(2) Upon receipt of the notification from the office of the County Judge/Executive that the application is administratively complete, the person proposing to construct and operate a facility shall at its expense serve a complete copy of the application for a certificate of site approval to the following persons:
(a) each member of the Hopkins County Fiscal Court;
(b) The fire and police departments with jurisdiction over the site or facility and all such departments that respond to calls within Hopkins County;
(c) The County Disaster and Emergency Services Coordinator (DES);
(d) Directors of the following Hopkins County Agencies and Departments: Health Department; Joint Planning Commission; Department of Economic Development; Department of Tourism; Office of the Hopkins County Attorney, County Department of Parks and Recreation;
(e) The Kentucky Department of Fish and Wildlife Resources.
(D) Each petition for approval shall be subject to a thirty (30) day public comment period and, upon request, a public meeting. After the applicant for a certificate of approval has been notified that the application is administratively complete, the applicant shall cause to be published a public notice weekly for four (4) consecutive weeks in the two (2) newspapers of greatest circulation in Hopkins County. The notice shall be in a form approved by the Office of the Hopkins County Judge/Executive and shall advise the public that an application for a certificate of approval has been filed and deemed administratively complete; and announcing the beginning of a comment period to run thirty days after the fourth publication of the notice, and the date of the public meeting, which shall be scheduled for thirty (30) days after the last date of publication but will be cancelled unless a written request for the meeting is received within fourteen (14) days after the last public notice has been published. The public meeting will be held in Hopkins County in the evening in order to accommodate the public.
SECTION 5: FISCAL COURT REVIEW
(A) Within sixty (60) days after the end of the public comment period or conclusion of the public meeting, all agencies of Hopkins County shall provide any comments and recommendations to the Fiscal Court regarding the granting, denial, or conditions on the issuance of a certificate of approval. Within ninety (90) days following the end of the comment period or any public meeting, the Hopkins County Fiscal Court shall make the final determination to grant, grant with conditions, or deny the request for a certificate of approval.
(B) Fiscal Court determination shall be based on a consideration of the application, and the findings and recommendations of any independent consultant retained by the Fiscal Court, the information and comments submitted by the public and agencies, and those matters of which the Court may take administrative and official notice. The applicant shall affirmatively demonstrate, and the Fiscal Court must find in determining to issue, or condition the requested certificate:
(1) That the proposed facility will not present an unreasonable risk to human health or safety; and has demonstrated that it will comply with the applicable environmental performance standards of state regulations and this ordinance;
(2) That the activity conducted at the proposed site will not adversely affect the ability to provide fire, health or other emergency services to the public both in the vicinity of the site and throughout Hopkins County; and
(3) That the activity, if conducted at the proposed site, will not result in adverse effect on the public’s use and enjoyment of parks, public waters, historic structures, cultural and natural resources located in the vicinity of the facility site; and
(4) That the activity, if conducted at the proposed site, will not have a significant adverse impact on the establishment or continuation of businesses, residential developments, churches, schools or other types of activities related to the social, economic and cultural development of Hopkins County; and
(5) That the compliance and performance history of the person proposing to construct and operate a facility indicates a satisfactory record of compliance with applicable federal, state and local laws and regulations, and based upon such prior record, that it can be reasonably expected that the person proposing to construct and operate a facility will, in constructing, expanding, maintaining or operating the facility at the proposed site, maintain a corresponding satisfactory record of compliance with applicable laws and regulations; and
(6) That the person proposing to construct and operate a facility has demonstrated that it possesses sufficient financial resources to: complete construction of the new or expanded facility; maintain and operate the facility in compliance with applicable laws and regulations; respond immediately in the event of emergency by reason of accident or upset at the site; and complete closure and post-closure maintenance of the facility; and
(7) That the person proposing to construct and operate a facility has demonstrated that it has or will comply with all applicable waste management laws and regulations concerning special waste facility permits, filings and/or notifications required by the Natural Resources and Environmental Protection Cabinet for the construction and operation of the facility;
(8) That the required financial responsibility for post-closure has been demonstrated by posting appropriate bond or surety; and
(9) That sufficient compliance sampling and monitoring, including a periodic sampling of the sewage sludge before and after treatment in order to confirm that the sludge content is consistent with the initial characterization of the sludge in subsection (m), and periodic sampling of the treatment process and of the surface and subsurface of land to which the sewage sludges are applied, and of runoff from areas where land application has occurred, sufficient to demonstrate compliance with the environmental performance standards of state regulations and of this ordinance, will be undertaken by the applicant.
The Hopkins County Fiscal Court shall send written notification of its determination with respect to the petition for approval to the person proposing to construct and operate a facility and to all persons who submitted written or oral comments during the public comment period. Such notifications shall include a copy of the written findings of fact and conclusions of law and a written response to comments received during the comment period.
(D) Coordination with Other Laws.
The Hopkins County Fiscal Court shall, to the extent possible or as may be required, coordinate its review of petitions for site approval under this ordinance with the exercise of authority conferred upon it pursuant to any state or federal laws.
SECTION 6: FEES
The person proposing to construct and operate a facility shall by certified by check made payable to the Hopkins County Fiscal Court, submit fees in accordance with the following schedule:
(a) At the time of submission of the petition for approval an initial fee of $5,000 is required. This requirement applies to any application for a approval certificate for a new facility and also to any petition for approval of an expansion to an existing facility.
(b) At the conclusion of the review process, the Hopkins County Judge/Executive shall tender to the person proposing to construct and operate a facility a statement of actual costs incurred by the Hopkins County Fiscal Court in review of the application, including the costs of review of the application by the Court’s consultant; and any balance due shall be payable upon receipt and balance remaining shall be remitted to the applicant. (c) The total fee shall not exceed the actual costs to the Fiscal Court of the consultant’s evaluation and any other expenses incurred.
The Fiscal Court shall utilize a qualified consultant to assist it in evaluation of the request for certificate of approval.
SECTION 7: COMPLIANCE EVALUATION AND REPORTING
(A) Any facility approved under this ordinance for treatment or land application of sewage sludge shall provide a report on a quarterly basis to the Fiscal Court of Hopkins County, on the amount of sewage sludge received and treated, and the disposition of such sludge, and shall provide copies of all periodic sampling and monitoring.
(B) Any person who has reason to believe that a violation of any provision of this ordinance is being violated may report such information to the office of the Solid Waste Coordinator for Hopkins County, who shall conduct such inspections and take other appropriate action, including referral of the complaint to the state Division of Waste Management or the office of the Hopkins County Attorney for further inquiry and appropriate action.
SECTION 8: PENALTY CLAUSE
Any person who violates any provision of this ordinance shall be subject to a civil penalty of $1,000.00 for each violation of this ordinance. Each day of violation shall constitute a separate offense. Additionally, continued violation may be enjoined by the Fiscal Court. Where a facility receiving sewage sludge for treatment or land application violated any provision of this ordinance, notice shall be given to the generator of such sludge and unless that person takes action sufficient to cause the violation to be abated, the generator may be assessed a civil penalty as provided in this section.
SECTION 9: SEVERABILITY
The provisions of this ordinance are severable, and if any provision, section, paragraph, phrase, sentence or clause or the application thereof is held by a court of competent jurisdiction to be invalid, such invalidity shall not affect the remainder of the ordinance.
SECTION 10: EFFECTIVE DATE
This ordinance shall take effect and may be enforced upon its passage and publication.