Beware Environmental Regulations Lurking in Local Codes – Such as the Wellhead Protection Program

by Tonkon Torp LLP
Contact

Tonkon Torp LLP

Most companies know that the environmental impacts of their operations are regulated by the federal government (primarily the US Environmental Protection Agency) and various state governments (in Oregon, primarily the Oregon Department of Environmental Quality or "DEQ"). However, many companies are not aware that environmental requirements also reside at the local level – such as in city ordinances. Local environmental requirements are often tied to the issuance of a building permit or grading permit and therefore cannot be missed. But, it is different for companies that operate an existing facility (sometimes for many years!) prior to the enactment of the local environmental requirements. If there is poor communication from the local regulatory body, a business may not even be aware of the new requirements and therefore fail to implement them. This creates the risk of possible enforcement actions and fines.
 
One example of an environmental regulation that is enforced by local governments is the Oregon Wellhead Protection Program – a state program required by the federal Safe Drinking Water Act to protect the public drinking water supply. Multiple Oregon agencies are involved in the development and implementation of the policy and regulations that drive this program (with DEQ and the Oregon Health Services ("OHS") in the lead), but the day-to-day requirements of the Oregon Wellhead Protection Program are implemented and enforced locally by cities and counties, mostly through drinking water protection ordinances.
 
Drinking water ordinances generally define the groundwater resource as a mapped zoning overlay area and they impose specific requirements for land uses and development within the boundaries, such as the prohibition of various land uses, subdivision controls, special permitting or siting requirements, or performance standards. Because the requirements for groundwater protection are dependent on various land uses and groundwater aquifer conditions, local wellhead protection programs are different 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) or,
  • 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 the other 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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Tonkon Torp LLP | Attorney Advertising

Written by:

Tonkon Torp LLP
Contact
more
less

Tonkon Torp LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.