Toxics Right-to-Know Charter Amendment
Excerpt from Eugene City Charter:
Section 54. Amendment IV
The City of Eugene Charter is hereby amended as follows:
ARTICLE I - FINDINGS AND STATEMENT OF LOCAL PROBLEM
The people of Eugene do hereby find that:
A. exposure to toxic chemicals can damage human health and the environment; and
B. citizens have a fundamental right to know the identity and amounts of toxic chemicals that are released into the workplaces, air, water, soil, and environment of their community.
ARTICLE II - SCOPE
Section 2.1. Facilities covered by this Act.
A. Except as exempted in Section 2.2, this Act shall apply to facilities within the City of Eugene that are:
1. within the Standard Industrial Code categories #20 - #39, inclusively as listed in Standard Industrial Classification Manual (Office of Management and Budget, 1987);
2. solid waste incinerators that accept infectious waste; and
3. hazardous waste disposal incinerators.
Section 2.2. Facilities exempted by this Act. This Act shall not apply to:
A. state and federal facilities; and
B. public educational institutions.
ARTICLE III - DEFINITIONS
As used in this Act, the following definitions shall apply:
A. "Extremely hazardous substance" means all substances listed in Section 30 [Correction: Correct reference is to Section 302] of the Emergency Planning and Community Right-To-Know Act (42 USC 11002) as of the effective date of this Act and any substances added to the list subsequent to the effective date of this Act.
B. "CAS number" means the identification number assigned to a substance by the Chemical Abstract Service.
C. "Chemical Name" means the scientific designation of a substance in accordance with the nomenclature system developed by the Chemical Abstract Service.
D. "Facility" means all buildings, equipment, structures and other stationary items that are located and operated on a single site or on contiguous or adjacent sites and that are owned or operated by the same person(s) and relate to a common product or service.
E. "Hazardous substance" means:
1. any substance listed or described, as of the effective date of this Act, on any of the following lists of chemicals regulated or identified as of concern:
(a) Section 112(b) of the Clean Air Act(CAA) as amended in 1990 (Hazardous Air Pollutants); 42 USC 7412(b);
(b) Section 602(b) of the CAA (Class II ozone depleting substances); 42 USC 7671a.(b);
(c) Section 307(a) of the Clean Water Act (CWA) (Priority Pollutant List); 33 USC 1317(a);
(d) U.S. Environmental Protection Agency Active Ingredients, including Special Review, Canceled/Denied or Suspended, and Restricted Use Pesticides, pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA; 7 USC 136 et seq.);
(e) U.S. Environmental Protection Agency List 1 Inert Ingredients of Pesticides ("Inerts of Toxicological Concern"), pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA; 7 USC 136 et seq.);
(f) Section 102 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); 42 USC 9602;
(g) Section 3001 of the Resource Conservation and Recovery Act (RCRA; 42 USC 6921) and chemicals listed at 40 CFR
261.33 (e) and Appendix VIII.
2. any substance which, if it were in a container, would possess the characteristics of a hazardous waste, as defined in 40 CFR
261.20 through §261.24, authorized by RCRA;
3. radioactive waste and material as defined in ORS 469.300 and radioactive substance as defined in ORS 453.005;
4. any substance, regardless of quantity, required to be reported pursuant to Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA); 42 USC 11002; or
5. any substances added, subsequent to the effective date of this Act, to the lists described in Article III(E)(1) and III(E)(4) of this Act.
F. "Hazardous substance user" means: the owner and/or operator of a commercial or public facility that is stationary within the boundaries of the City of Eugene and that:
1. has a total input of more than 2,640 pounds of hazardous substances during a calendar year;
2. employs ten or more full-time equivalent employees;
3. is not exempted pursuant to Section 2 .2.
G. "Input" means the sum of the following categories of each hazardous substance:
1. inventory at the facility at the beginning of the accounting period;
2. waste stored at the facility at the beginning of the accounting period;
3. quantity produced at the facility; and
4. quantity brought to the facility.
H. "Materials balance" means an accounting of the flow of individual hazardous substances into a facility, through its processes, and into its products and wastes such that inputs equal outputs of each hazardous substance to the accuracy of the smallest accounting units (Article III(K)) for each hazardous or extremely hazardous substance.
I. "Output" means the sum of the following categories of each hazardous substance:
1. quantity consumed in the facility`s processes;
2. quantity shipped from the facility in product;
3. quantity transferred away from the facility as waste;
4. waste stored at the facility at the end of the accounting period;
5. quantity emitted to the air;
6. quantity discharged into publicly treated sewage;
7. quantity released into surface waters ;
8. quantity eliminated through treatment at the facility;
9. quantity eliminated through energy recovery at the facility;
10. quantity disposed on-site; and
11. inventory at the facility at the end of the accounting period.
J. "Person" means an individual, corporation, partnership, trust, association, the City of Eugene, or any officer, agent, or employee thereof.
K. "Smallest accounting unit" means 2.2 pounds of a hazardous substance; 0.022 pounds of an extremely hazardous substance.
L. "Trade secret information" means information which is exempted from disclosure as a trade secret pursuant to any Federal or State law including but not limited to 42 U.S.C. 11042(b) of the Federal Emergency Planning and Community Right to Know Act.
ARTICLE IV - RESOLUTION
Be it resolved and ordained by the people of Eugene that: all hazardous substance users in Eugene shall file an annual, public, materials balance report listing inputs and outputs of all hazardous substances obtained, used, or generated.
ARTICLE V - HAZARDOUS SUBSTANCES PUBLIC REPORTING
Section 5.1 Materials balance reporting
A. Materials balance reports shall indicate the weight in pounds of hazardous substances in each of the categories enumerated in Article III(G) and III(I).
B. Each hazardous substance shall be designated by full chemical name and CAS number.
C. All materials balance reports shall be filed electronically on forms provided by the Toxics Board as defined in Section 6.1 of this Act. These completed forms shall be compatible with the Eugene Public Library`s computer system. These forms, common to all reporting entities, shall be in an easily understood format for both the reporting entity and the public.
D. An authorized representative of the reporting facility shall file a signed declaration with the Toxics Board certifying that the facility has filed the report and that it is accurate and complete.
E. The materials balance reports shall be filed by April 1 of each year for the previous calendar year.
F. The repository for all materials balance reports shall be the Eugene Public Library, where they shall be readily accessible by the public for seven years after reporting. Reports older than seven years shall be archived by the City Recorders Office.
Section 5.2 Reporting related to trade secret chemicals.
A. If a claim of trade secrecy is made by any hazardous substance user for one or more hazardous substances, that user must:
1. file with the Office of the Fire Marshal a notarized report documenting that the hazardous substance is comprised of a substance which satisfies all conditions of the definition of trade secret information as found in Article III(L). A separate report must be filed for each trade secret chemical. The notarized report shall be on file with the Fire Marshal prior to commencement of procurement or production of each trade secret chemical.
2. file with the Toxics Board, on a form provided by the Toxics Board, notification of each trade secret report filed with the Office of the Fire Marshal.
3. file with the Toxics Board, on a form provided by the Toxics Board, an aggregate materials balance account for all trade secret hazardous substances, if trade secrecy is claimed for more than one hazardous substance by any hazardous substance user. This report shall be filed by April 1 of each year.
4. file with the Toxics Board, prior to April 1 of each year, an annual, public report prepared by a qualified independent auditor, on a form supplied by the Toxics Board, which reports:
(a) whether the hazardous substance user has taken and is taking the greatest possible precautions in its use of each trade secret hazardous substances; and
(b) whether or not there are, for each trade secret chemical, technological options available for using alternative processes or chemicals that likely are more protective of workers, the community, and natural resources.
B. The repository for the annual public reports on use and alternatives to use of trade secret chemicals shall be the Eugene Public Library, where the reports shall be readily accessible for seven years after reporting. These completed forms shall be readable by the Eugene Public Library`s computer system. Reports older than seven years shall be archived by the City Recorders Office.
ARTICLE VI - ADMINISTRATION OF HAZARDOUS SUBSTANCE REPORTING
Section 6.1 Appointment of the Toxics Board
A. The City Council shall appoint a Toxics Board of seven people to enforce and implement this Act.
1. Three members shall be appointed who are employed by or are agents of "persons" required to report under this Act.
2. Three members shall be appointed who are not employed by or are not agents of "persons" required to report under this Act, and who have a demonstrable record of advocating for the public`s right-to-know.
3. One member shall be nominated by a two-thirds majority of the six appointed members.
B. The Toxics Board shall be appointed within two months of passage of this Act, and any vacancies shall be filled, so as to maintain the balance set forth in Section 6.1(A), within two months of the creation of a vacancy.
C. The term of office shall be three years, except that two members, one from Section 6.1(A)(1) and one from Section
6.1(A)(2), of the first Toxics Board shall be appointed to serve a first term of one year; three members, one each from Section
6.1(A)(1), 6.1(A)(2) and 6.1(A)(3) shall be appointed to serve a first term of two years; and two members, one from Section
6.1(A)(1) and 6.1(A)(2), shall be appointed to serve a first term of three years. No member shall serve more than two consecutive terms.
Section 6.2 Responsibilities of the Toxics Board
A. The Toxics Board shall, within three months of appointment of the sixth member, supply forms for materials balance reports and audits of precautions taken during use and alternatives to use of chemicals for which the trade secrecy reporting exemption has been invoked.
B. The Toxics Board shall annually:
1. recommend the fee structure necessary to implement this Act;
2. establish the qualifications necessary for a person to independently audit precautions used with trade secret chemicals, and independently audit the existence of technological alternatives that likely would be more protective of the environment, as required in Section 5.2(A)(4); and
3. file a public report on the effectiveness of implementation of this Act, and any recommendations for improved implementation of this Act.
C. By May 1 of each year, the Toxics Board shall report to the Fire Marshal the names of any hazardous users in non-compliance with the requirement to file materials balance reports.
D. The Toxics Board shall cause to be published a notice listing the names of non-complying entities in a daily newspaper with general circulation in the city of Eugene by June 1 of each year.
E. The office of the City Fire Marshal shall investigate all credible evidence that hazardous materials balance reports or trade secret chemical reports are not being filed in compliance with this Act.
F. The office of the City Fire Marshal shall audit the accuracy of the reporting processes of each hazardous substance user in an order such that all hazardous substance users are audited in a random order at least once every three years. Companies to be audited shall be given an advance audit notification of no more than one month.
G. The Toxics Board shall certify the qualifications of independent auditors who will audit the precautions used by hazardous substance users with trade secret chemicals and the technological options available for more protective alternatives.
Documentation for certification of the qualifications of each auditor shall be public information.
H. For the purposes of complying with Section 5.2(A)(4), hazardous substance users may hire only independent auditors certified by the Toxics Board pursuant to Section 6.2(G).
Section 6.3 Responsibilities of the City Manager
The City Manager shall consult with the Toxics Board in order to jointly determine the appropriate support services that shall be provided to the Toxics Board by City employees for the implementation of this Act. As set forth in Article VII(A), the cost of these support services shall be paid by fees collected pursuant to this Act.
ARTICLE VII - FEES
A. Each hazardous substance user shall pay an annual fee to the City of Eugene, sufficient to jointly cover the implementation of this Act, including expenses incurred by the Eugene Public Library, Fire Marshal, City of Eugene and the Toxics Board.
B. In order that this Act be self-supporting through hazardous substance user fees, the fee amounts shall be recommended annually by the Toxics Board and approved and amended as necessary by the Eugene City Council.
C. All fees due under this Act shall be paid by May 1 of each calendar year.
D. The operational budget for implementing this Act prior to the first collection of fees as set forth in Article VII shall be paid for out of City of Eugene general funds. The operational budget thereafter shall be funded wholly by hazardous substance user fees.
ARTICLE VIII - ENFORCEMENT
Section 8.1 Toxics Board enforcement and judicial review
A. In the event of noncompliance, the Toxics Board shall have the authority to enforce the reporting requirements of this Act and impose penalties as set forth in Section 8.2.
B. Any person may appeal a Toxics Board decision to the Circuit Court of Lane County, pursuant to the procedures providing for a writ of review (ORS 34.010) or a writ of mandamus (ORS 34.105).
Section 8.2 Penalties
A. Any hazardous substance user or person who violates this Act shall be subject to a penalty not less than $250 and not greater than $25,000 per day.
B. Each day that a violation continues shall be considered a separate violation subject to civil penalties. A violation occurs when a regulated entity fails to file a complete and correct report on or before the day the filing of a report is required.
C. In determining the appropriate amount of the penalty, the following shall by considered:
1. the likelihood at the time of the noncompliance that harm would arise from the violator`s noncompliance;
2. the degree of the violator`s awareness of that likelihood;
3. the profits reasonably related to the violator`s non-compliance;
4. the duration of the non-compliance and any concealment of it;
5. the attitude and conduct of the violator upon discovery of the concealment;
6. the number of previous violations by the specific violator of this Act;
7. the financial condition of the violator;
8. the total deterrent effect upon the specific violator at issue and other potential violators; and
9. other penalties paid by the specific violator for the specific violations at issue.
D. Any penalties imposed under this Section or Section 8.3 shall be paid to the City of Eugene for use in implementing this Act.
E. If a hazardous substance user repeatedly violates this Act in a fashion contrary to the public interest, the City Manager shall order that
hazardous substance user to cease and desist using hazardous substances in the City of Eugene.
F. Nothing in this Section is intended to restrict or limit any other enforcement remedies available, at law or in equity, arising out of the same circumstances upon which an alleged violation of the Act may be based.
Section 8.3. Citizen enforcement.
A. Any person may petition to the Toxics Board on her/his own behalf against a hazardous substance user or person for failure to comply with any of the terms of this Act. The Toxics Board shall set forth procedures by which persons may petition the Toxics Board.
B. The Toxics Board must issue a decision in response to a petition within 45 days of receiving the petition. If the Toxics Board fails to issue a decision within 45 days, the petition shall be deemed denied on the 45th day for the purpose of exhaustion of remedies and may be judicially reviewed pursuant to Section 8.1(B).
C. The petitioner must notify the Toxics Board and alleged violator ten days prior to seeking judicial review, except that such action may be brought immediately after such notification in the case of an action under this Section respecting an emergency posing a significant risk to the well-being of workers, people present in the community, or any species of fish or wildlife or plants.
D. No action may be commenced under paragraph A of this Section if the City of Eugene has commenced an action to impose a penalty pursuant to Section 8.2 and is pursuing a prompt resolution of that action.
ARTICLE IX - EXCLUSIONS
A. Nothing in this Act is intended to apply to the government of the United States or to the government of the State of Oregon, or to the agencies or political subdivisions of either government.
B. Nothing in this Act is intended to restrict, impede, or otherwise interfere with the exercise of rights guaranteed by the United States Constitution or the Constitution of the State of Oregon.
ARTICLE X - IMPLEMENTATION
Insofar as it is reasonable and practicable to so assume, the provisions of this Act are intended to be self-executing. In every other case, however, and any other provision of the Eugene City Charter or the ordinances of the City of Eugene notwithstanding, the City Council shall, upon recommendation of the Toxics Board and without unreasonable delay, enact reasonable ordinances necessary and proper for carrying into execution the provisions of this Act.
ARTICLE XI - SEVERABILITY
If any section, subsection, paragraph, phrase or word (hereafter the parts) of this Act shall be held to be unconstitutional, void, or illegal, either on its face or as applied, this shall not affect the applicability, constitutionality, or legality of any other parts hereof; and to that end, the parts of the Act are intended to be severable. It is hereby declared to be the intent of this Act that the same would have been adopted had such unlawful or unconstitutional provisions, if any, not been included herein.
ARTICLE XII - EFFECTIVE DATE
This Act shall be in full force and effect 31 days following passage.
(Ballot Measure 20-75, November 5, 1996, General Election)