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

Tonkon Torp LLP

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.

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