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Toxic Chemical Remediation Ordinance Proposal Gary Hobbie, Director TELEPHONE (785) 309-5715 · Community & Development Services FAX (785) 309-5713 · City-County Building TDD (785) 309-5747 · 300 West Ash P.O. Box 736 E-MAIL gary.hobbie@salina.org ·· Salina, Kansas 67402-0736 WEBSITE www.salina-ks.gov · MEMORANDUM TO: Mayor & City Commissioners, City Manager & Deputy City Manager FROM: Gary Hobbie Director of Community & Development Services DATE: October 21, 2010 th SUBJECT: Summary of Study Session Materials for October 25 Study Session Development Services staff in conjunction with the City Attorneys Office, Salina Police Department, I-70 Drug Task Force, Salina Fire Department, City Managers Office, would like to present research completed and a draft of a new city ordinance on Toxic Chemical Remediation. A power point presentation will be reviewed by city staff, including those mentioned above, as we consider setting into place an ordinance protecting the life, heath and safety of citizens in Salina who maybe or who are in contact with structures where toxic chemical are manufactured, stored, consumed and disposed. Included in the ordinance is research from Kansas Department of Health and Environment, Environmental Protection Agency, I-70 Drug Task Force, and communities in the USA who have developed such a program. Recent occurrences have caused city staff to review polices and procedures for toxic chemical discovered in buildings inside the city limits of Salina. The desire is to set in place codified language which assists in the remediation process once a lab has been discovered. "Our Mission is to Encourage and Promote Safe, Quality Development and Construction in the City of Salina." City of Salina, Kansas Toxic Chemical Remediation Ordinance No. 10-XXXXX Sec. X-1. Definitions. For the purposes of this article: Drug activity means any processing of methamphetamine, methamphetamine components, other Comment [l1]: Include smoking or consumption? YES! GH toxic substances, or hazardous waste. Comment [l2]: Include other illegal drugs? Drug site means the property and personal effects in and adjacent to the location of drug activity. Comment [l3]: Chief Mulligan suggested invoking the hazardous waste Personal effect means any personal property, including furniture, cookware, dishes, clothing, fabric laws of KSA and the International Fire items, blankets, and linens, used in a dwelling. Code. Porous materials means and are not limited to carpet, draperies, bedding, mattresses, pillows, cork board, ceiling panels, and cardboard. Paper? Property means any real or personal property, including land, buildings, manufactured homes and mobile homes, designed for human occupancy. Property Owner means the person holding title to real property, manufactured or mobile homes, or the person(s) who lawfully own(s) such property. Qualified contractor means a company experienced in hazardous waste removal and remediation. At a minimum, the contractor must be certified as having completed 40 hours of Hazardous Waste Operation and Emergency Response training pursuant to 29 C.F.R. 1910.120. (Or as designated by Kansas Department of Heath & Environment) Sec. X-2. Purpose. The purpose of this article is to protect current and future residents of a drug site from toxic substances by requiring the property owner to remediate toxic chemical contamination from the property and adjacent affected properties, by ensuring proper steps have been taken to remove all contaminates Comment [l4]: Is the drug site owner responsible for remediating adjacent through appropriate testing processes, to ensure the satisfactory cleaning of the property for human affected properties that she does not contact. Hazardous chemicals used in and released by the creation of methamphetamine and other toxic own? I WOULD THINK YES IF substances condense on and penetrate the property, personal effects, surfaces, and equipment in and CONTAMINATES WERE THROWN OR BECAME AIRBORNE AND LANDED ON surrounding a drug site. Toxic residues place people, particularly children and women of child-bearing THE NEIGHBORS PROPERTY. GH age, at risk for significant health problems. Commercial or industrial firms properly zoned for the legal processing of methamphetamine component substances and otherwise in compliance with federal, state, and local laws, rules, and regulations are exempt. Does this belong in purpose? Isn’t it m ore of an applicability item? Sec. X-3. Drug Site Designation. The Building Official will designate a property a drug site (this use of the term doesn’t seem to match Comment [l5]: Who is responsible? with the definition of drug site, above) when the Salina Police Department I-70 Drug Task Force, Kansas Highway Patrol personnel, or persons associated with Kansas Department of Health & Environment Comment [l6]: What if a neighbor reports? WE WILL TURN OVER THE determine(s) or the property owner reports that the property hosted drug activity. Do we need to INVESTIGATION TO I-70 TASK FORCE.GH reference any criteria and/or our ability to conduct tests and be reimbursed for costs in conducting the tests regardless of the outcome? In the alternative, should we state that certain activities (cooking, etc.) constitute substantial evidence to presume a property a drug site? Could that be accomplished in the definition of drug site? (a) A drug site designation must be noted on the property’s deed or certificate of title in perpetuity. Comment [l7]: Who is responsible for recording the drug site designation? THE (b) The drug site shall be declared a public nuisance, and the property owner shall not permit the CITY CAN AND ASSESS COSTS TO THE property to be occupied or personal effects or porous materials to be removed until a qualified PROPTERTY. GH contractor certifies that the toxic chemical contamination on the property is remediated. (c) The property owner and any current? tenant occupying space within the property, shall sign a statement acknowledging the health risks associated with contamination from drug activity and promising not to permit occupancy until contamination is remediated. What if they refuse or we can’t find them? Once satisfactory remediation has occurred, shouldn’t that fact also be recorded (or recordable) with the deed?—JJI Yes Sec. X-4. Public Notice of Contamination. (a) Upon designating a property a drug site, the Building Official shall post a public notice on the property, that toxic chemicals have been used in the house, which contains the following: (1) Warning in capital letters and bold-faced type: “WARNING: DO NOT ENTER ‘PUBLIC HEALTH NOTICE’.” (2) Statement of danger: “Toxic substances or hazardous waste may be present on the property.” (3) Prohibition of trespass: “Any person who enters without the permission of the Building Official is trespassing.” Comment [l8]: Can the property owner enter? NOT WITHOUT SIGNING (4) The address of each potentially contaminated property or unit. LOU FOR CONTAMINATES THAT MAY BE (5)This public notice shall be removed only by the Building Official upon completion of IN THE PROPERTY.GH remediation, as required by this article. It shall be unlawful for anyone else to remove this public notice. (c) The Building Official shall notify the Salina Police Department, residents of adjacent properties, and the Kansas Department of Health and Environment of the contamination. Comment [l9]: Other public health entities? Child protection services? (d) The property owner or occupant must indicate within 10 days of the public notice whether he/she will remove contaminated personal effects and how he/she will remediate them. Comment [l10]: Some sample ordinances allow the occupant to Sorting out the details between the property owner and the tenant(s) can turn in to a very big remove personal effects. WE REQURIED deal. Can we make the property owner our single point of contact who is responsible for WRITTEN UNDERSTANING OF coordinating with tenants? This would make the process easier for us, but past experiences CONTAMINATES THAT WERE FOUND IN THE UNIT/HOUSE. GH shows that one owner does not take this seriously, and allows people to rent units without clearance confirmation. (e) Occupation Prohibited: upon issuance of the public health notice, do not enter signage, all occupant fo the building shall immediately vacate the premise, allowing only those to enter who will be outfitted with proper health and safety training and wearing appropriate protective equipment/suits. Sec. X-5. Assessment and Remediation Standards. (a) All assessment and remediation must be conducted by a qualified contractor pursuant to the standards of the Kansas Department of Health and Environment and the Environmental Protection Agency and the hazardous waste procedures of the fire code. Comment [l11]: Do you want these authorities? In other authorities? (c) The maximum acceptable levels of contamination follow. (1) Volatile organic compounds: 1.5 parts per million. (2) pH: Surface level of 7. (3) Mercury: 0.3 micrograms per cubic meter of mercury in the air. (4) Lead: 20 micrograms per square foot. Comment [l12]: From Sand Springs ordinance. (Not set by KDHE (5) Methamphetamine: 1.5 micrograms per 100 square centimeters. Can we get away with methamphetamine guidance.) NEED referencing the current standards established by KDHE and/or EPA whichever are lower in GUIDANCE FROM LT NORTON.GH order to avoid our ordinance becoming outdated? (d) The property owner is solely responsible for the cost s associated with remediation of a drug site. If the property owner cannot be located or does not respond within 10 days, the City may Comment [l13]: The Fire Code provides that hazardous materials will be commence remediation and recover all costs plus a 25% administrative surcharge through a remedied by the Fire Chief at the special assessment against the property. Do we need to mirror or cross-reference the nuisance responsible party’s expense. IT WAS abatement process regarding appeal hearings, serving of notice, etc.? SUGGESTED TO US THAT A CERTIFIED COMPANY REMOVE. GH (e) A property owner may request an extension for up to 90 days for good cause as determined by the City Manager. Comment [l14]: #? Comment [l15]: Define good cause. Sec. X-6. Assessment. (a) After a property is designated a drug site, the property owner must retain a qualified contractor to assess the drug site and adjacent properties and write a report detailing the level of Comment [l16]: Is the drug site owner responsible for remediating contamination. The report shall be delivered to the Building Official without delay. adjacent affected properties that she (b) If the level of contamination does not exceed that permitted by this article, the property owner does not own? shall deliver a certified copy of the report to the Building Official. The Building Official shall then Comment [l17]: What specifically remove the public notice and provide written authorization to the owner that occupancy may must be tested? SURFACES INCLUIDING resume. Record the fact that the contamination was remediated? WALLS, FLORS COUNTER, FURNITURE AND CEILINGS; VENTILATION SYSTEMS (c) If the level of contamination exceeds that permitted by this article, the property owner shall HEATING AND AIR CONDITIONING either remediate the toxic contamination within 90 days or demolish the property within 180 DUCTS, VENTS, FILTERS AND WALL NEAR VENTS; PLUMBING DRAINS, TRAPS, SINKS days. MUST BE FLUSHED WELL; REPAINTING OF SURFACES IS RECOMENTED. GH Sec. X-7. Remediation. If the property owner chooses to remediate the drug site, the contractor must clean the drug site and retest (COMPLETED BY A CERTIFIED AGENCY) it until contamination falls below the maximum acceptable levels. When the level of contamination no longer exceeds that permitted by this article, th e contractor shall prepare a final report and deliver it to the Building Official. Sec. X-8. Final Report. (a) All assessments conducted by a contractor during the remediation process shall be documented in writing and with photographs, video recordings, drawings, and/or charts. (b) The final report shall include: (1) A case narrative, site description, and site assessment. (2) The physical address of the property, the number and type of structures on the property, and a description of adjacent and/or surrounding properties. (3) Law enforcement reports, documented observations, and pre-remediation sampling results that provide information regarding the processing method, chemicals present, processing areas, chemical storage areas, and observed areas of contamination or waste disposal. (4) Name, qualifications, and experience of contractor. (5) The signature of the contractor who prepared the report. (6) A copy of the contractor’s 29 C.F.R. 1910.120 certification. (7) Worker safety and health information. (8) For each test or remediation activity, the date of performance, a description of the procedure, and the signatures of the workers involved. (9) Decontamination and encapsulation procedures for each area that was decontaminated. (10) Documentation that the structure was cleaned to acceptable levels, including, but not limited to, the location and results of post-decontamination samples, descriptions of analytical methods used, and the locations of laboratories used. (c) The owner shall provide a certified copy of the final report to the Building Official upon receipt from the contractor. Sec. X-9. Condemnation. (a) If the property owner does not remediate the drug site or request an extension for good cause within 90 days, and if remediation would cost at least [x]% of the assessed taxable value of the Comment [l18]: #? structure, the City may (May seems to leave it open ended. Should this be shall?)condemn the Comment [l19]: Remediation building pursuant to the Uniform Code for Abatement of Dangerous Buildings. threshold as %? 51%. GH (b) APPEALS GO TO THE BUILDING ADVISORY BOARD AND/OR CITY COMMISSION?GH I would suggest City Manager then City Commission. Sec. X-10. Penalty. (a) Any violation of the provisions of this article shall be deemed a misdemeanor. (b) Each day a violation of this article occurs shall constitute a separate offense. (c) The provisions of this Chapter shall not preclude the City of Salina or any other aggrieved party from pursuing any civil remedies to recover any and all costs associated with administration or Comment [l20]: Can we grant the City explicit immunity from health-based enforcement of this article. civil actions? What about the owner after remediation?