Pollution Prevention Regulation
Resolution Adopting the Amended Washtenaw County Pollution Prevention Regulation Governing the Identification and Disclosure of Toxic, Hazardous, or Polluting Substances
August 3, 1994
WHEREAS, on April 2, 1986 the Washtenaw County Board of Commissioners adopted the Washtenaw County Health Department Community Right-To-Know Regulation (the Regulation); and
WHEREAS, on February 21, 1990 and October 21, 1992 the Board of Commissioners adopted amendments to the Regulation and retitled the Regulation to the Washtenaw County Pollution Prevention Regulation; and
WHEREAS, the Washtenaw County Public Health Division has a duty to continually and diligently endeavor to prevent disease, prolong life, and promote the public health through organized programs, including those aimed at the prevention and control of environmental health hazards; and
WHEREAS, it is necessary to make technical amendments to the Regulation to clarify the practices currently in place to implement the Regulation; and
WHEREAS, a public hearing receiving comment on the proposed amendments to the Washtenaw County Pollution Prevention Regulation was held August 3, 1994;
NOW THEREFORE BE IT RESOLVED that the Washtenaw County Board of Commissioners hereby adopts the amended Washtenaw County Pollution Prevention regulation as attached hereto and made a part hereof.
Washtenaw County Public Health Division Pollution Prevention Regulation Governing the Identification and Disclosure of Toxic, Hazardous, or Polluting SubstancesWHEREAS, the Washtenaw County Public Health Division has a duty to continually and diligently endeavor to prevent disease, prolong life, and promote the public health through organized programs, including those aimed at the prevention and control of environmental health hazards; and
WHEREAS, the Division is aware that a great variety of toxic, hazardous, and polluting substances are manufactured, used, and stored within the County; and
WHEREAS, the Division is aware that unless proper precautions are taken, such substances can cause disease, shorten life, and create environmental health hazards, both with respect to the general public and with respect to the emergency personnel working in the County on environmental and other emergencies; and
WHEREAS, the Division is aware that elsewhere such substances, absent proper precautions, not only have caused disease and shortened life on a small scale and at a slow pace, but also, on occasion, have done so quickly and on a large scale, creating emergencies; and
WHEREAS, the Division is aware that emergency personnel may encounter such substances both in their work with respect to environmental emergencies and with respect to other emergencies; and
WHEREAS, the Division is aware that at present in this County both the public and emergency personnel lack sufficient current detailed information, in accessible form, with respect to the nature, amount, location, characteristics, disposal methods, and (in emergency situations) emergency facts with respect to such substances; and
WHEREAS, the Division is aware such people also lack sufficient access to the manufacturers of such substances, who could furnish more information to be used in handling such substances and treating persons who have come in contact with them; and
WHEREAS, the Division has determined that, by the measures required in this amended regulation, such information can be obtained in a feasible manner and made accessible to the public and to emergency personnel in a way that will reduce disease, prolong health and prevent and control environmental health hazards; and
WHEREAS, it is the intent of the County Board of Commissioners to reduce required inspections when it can be shown that facilities have a history of compliance with this Regulation
NOW THEREFORE BE IT RESOLVED that this amended regulation governing the identification and disclosure of toxic, hazardous, or polluting substances is hereby adopted and established under the authority of the laws of the State of Michigan, as amended.
Article I - ScopeThis Regulation shall apply to all toxic, hazardous, or polluting substances which are manufactured, used, or stored by a party within Washtenaw County.
This Regulation shall not apply to:
- Substances contained in foods, drugs, cosmetics, tobacco products and consumer products held for retail sale;
- Agricultural operators;
- Boxed or bagged salt;
- A party who manufactures, stores, or uses a toxic, hazardous, or polluting substance at a workplace in an aggregate volume or quantity of not more than five (5) gallons or eighteen (18) kilograms or approximately forty (40) pounds or one hundred (100) cubic feet shall not be required to include such substance on any inventory or to submit a status sheet on such substance; provided, however, that the Washtenaw County Public Health Division may require reporting of toxic, hazardous, or polluting substances in lesser quantities if these substances are specified on the extremely hazardous substance list, 40 CFR 355.
Article II - DefinitionsAs used in this Regulation, the following definitions shall apply:
- "Agricultural operator" means a party who is engaged in farming.
- "Board" shall mean the Board of Commissioners of Washtenaw County.
- "CAS" shall mean the identification number assigned by the Chemical Abstract Service to chemical substances.
- "Chemical Name" means the scientific designation of a substance in accordance with the nomenclature systems developed by either the International Union of Pure and Applied Chemistry or the Chemical Abstract Service.
- "Common Name" means any designation or identification, such as a trade name or number or code name or brand name, used by a party to identify a substance other than by its chemical name.
- "Container" means any receptacle either formed or flexible covering liquid, solid, or gaseous substance, including, but not limited to, bag, barrel, bottle, box, can, cylinder, drum, carton, stationary or mobile storage tank, vessel or vat.
- "Emergency" means an intended or unintended release of a toxic, hazardous, or polluting substance from its container or containers (including, but not limited to, equipment failure or human error) if the release meets one or more of the following criteria:
- The release constitutes a substantial threat to the health or life of a person or persons or constitutes a substantial threat to the environment.
- The release was not made pursuant to previously obtained license or permission from any government agency regulating discharges of toxic, hazardous, or polluting substances and was in an amount substantially greater than the amount the party ordinarily releases in the routine course of manufacture, use or storage of the substance and said discharge may pose a threat to the public health or environment.
- A release which would require notification to the Director of the Department of Natural Resources.
- "Employee" means any person who works with or without compensation in a workplace.
- "Environment" means the air, water and land outside of a workplace.
- "Health Officer" means the Director of the Washtenaw County Public Health Division or his/her designated representative.
- "Maximum Storage Inventory" means the maximum volume or quantity of a toxic, hazardous, or polluting substance that is, or has been, or may be present in the workplace during a specified calendar year.
- "Party" means any person, firm, corporation, partnership, association or other entity (whether for-profit or not-for-profit) who or which has at least one (1) workplace within the County of Washtenaw.
- "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing of any toxic, hazardous, or polluting substances into the environment.
- "Retail Sale" means the sale or purchase of any toxic, hazardous, or polluting substance that is individually packaged and sealed in small quantities (not more than 5 gallons or 40 pounds) for distribution to the ultimate consumer.
- "Substance" means any element, chemical, compound, combination, or any mixture thereof, whether organic or inorganic.
- "Toxic, hazardous, or polluting substance" means any substance (or mixture containing such substance in concentrations of 1.0 % or more, or 0.1% for carcinogens, mutagens or teratogens) which is defined and regulated by any of the following:
- 29 CFR Part 1910 Subpart Z, Toxic and Hazardous Substances, also known as the Worker Right-To-Know Act, which is administered by the Occupational and Safety and Health Administration (OSHA). A substance is deemed toxic, hazardous, or polluting under this Regulation if a Material Safety Data Sheet (MSDS) is required.
- 40 CFR 355, List of Extremely Hazardous Substances. This list is generated by the Environmental Protection Agency (EPA) under SARA Title III, section 302;
- 40 CFR 372.65, Subpart D - Specific Toxic Chemical Listings. This is a list generated by the Environmental Protection Agency (EPA) under Sec. 313 of SARA Title III. It is also known as the Toxic Chemical Release Inventory (TCRI).
- Michigan State Water Resources Act 245 of 1929 Michigan Compiled Laws, and the rules generated thereunder:
- Critical Materials Register (CMR). This list is generated by the Michigan Department of Natural Resources. The list is generated under Section 6B of the act.
- Oil of any kind or in any form, including but not limited to petroleum, gasoline, fuel oil, grease, sludge, oil refuse and oil mixed with waste.
- Salt, meaning sodium chloride or calcium chloride.
- Waste materials containing substances otherwise identified in Definition P of this Regulation or defined and regulated by:
- 40 CFR part 261, Appendix VIII, and 40 CFR 261.3. These are RCRA listed wastes and waste generating processes. Included are wastes that meet the criteria of: a) Ignitability; b) Corrosivity; c) Reactivity; or d) Toxicity Characteristic, or
- Act 136, P. A. 1969, Michigan Compiled Laws, Liquid Industrial Wastes Act. Liquid industrial waste means any liquid waste, other than unpolluted water, which is produced by or incident to or results from an industrial or commercial activity or the conduct of any enterprise.
The references listed above will be available at the Washtenaw County Department of Environmental Services and the Ann Arbor Public Library Main Branch.
- "Work Area" means any area within a workplace, whether outdoors or inside a structure, where substances are stored, used, or manufactured, (and includes, but is not limited to, areas where substances are handled, mixed, processed, packaged, or re-packaged); and where employees, licensees, invitees, or other persons may be present. The term "work area" does not include principal and secondary residences and also does not include lawns or fields upon which fertilizers, pesticides, or herbicides are applied.
- "Workplace" means an entire establishment or business, at one geographic location, containing one or more work areas.
Article III - Pollution Prevention Information for the PublicSection 3.1 - Reporting Requirements: Any party who manufactures, uses or stores toxic, hazardous, or polluting substance at any workplace in this County on or after the effective date of this Regulation shall compile and deliver the following documents to the Health Officer by the following deadlines:
- A first status sheet for each substance accurate as of the date a party first manufactures, uses or stores a toxic, hazardous, or polluting substance within ten (10) calendar days after a party first manufactures, stores, or uses the toxic, hazardous, or polluting substance at a workplace.
- An updated status sheet accurate as of January 1 of each year shall be filed as of March 1 of each year and shall include, but not be limited to, the maximum storage inventory for the prior calendar year.
- An inventory of all toxic, hazardous, or polluting substances manufactured, stored, or used at the workplace. The inventory shall include, but not be limited to, a listing of the common name, the chemical name, the CAS number, the storage location, hazards associated with the substance, and the maximum storage inventory for the applicable calendar year.
- The name, address and telephone number of the manufacturer of the substance.
- The names, addresses and telephone numbers of two (2) persons in the party's organization with authority to make decisions for the party in the event of any emergency involving the substance.
- The party's plan for notification of emergency personnel and other personnel in the event of an emergency involving the substance, including names, addresses and telephone numbers of persons to be notified and the contents, if known, of emergency messages to be delivered.
- Information that may help emergency personnel identify which containers in the workplace may or do contain the substance.
- For each such workplace, a plan view showing the location of such containers in the workplace.
- The party's intended plan for consuming or ultimately removing the substance from the workplace, including, but not limited to: consumption of the substance in the process of manufacturing products, shipment in the ordinary course of business to retailers or wholesalers of the substance, shipment to a workplace of the party located outside the County, discharge of the substance into the local sanitary sewer system, loss of the substance by evaporation, etc.
Section 3.4 - Public Notification: Washtenaw County shall notify the public at least annually that the information required by this Regulation is available from the Washtenaw County Public Health Division and that the public has a right of access to the information.
Article IV - Pollution Prevention Information for Emergency PersonnelArticle 4.1 - Records: The Washtenaw County Public Health Division shall forward to the Washtenaw County Office of Emergency Management one copy of each inventory and status sheet it receives.
Section 4.2 - Emergency Notification: Every party covered by this Regulation, in the event of an emergency, shall immediately notify the fire and police departments, the Washtenaw County Office of Emergency Management and the Health Officer. Such notification shall include the following information, to the extent known to the party:
- The common name and either the chemical name or CAS of all toxic, hazardous, or polluting substances involved in the emergency;
- An estimate of the quantity of each such substance that was, or may have been, released during the emergency;
- The time and duration of the emergency;
- The actions taken by the party to respond to and contain the released material; and
- Any advice regarding medical attention necessary for exposed individuals.
Article V - Duties of the Health OfficerThe Health Officer shall have jurisdiction throughout Washtenaw County, including all cities, villages, townships and charter townships, in the administration of this Regulation and any amendments hereafter adopted, unless otherwise specifically stated herein.
Section 5.1 - Inspections: The Health Officer shall conduct annual inspections, except as detailed in Section 5.2, of those workplaces within Washtenaw County during years that they may have an aggregate maximum storage inventory of not less than 56 gallons (450 pounds) of any toxic, hazardous, or polluting substances. These inspections shall be for the purpose of, but not limited to, determining:
- That all required inventories and status sheets have been completed accurately and have been submitted to the Health Officer as required in Article III.
- That adequate and appropriate safety, containment, and clean-up equipment is readily available.
- That signs are posted as required in Section 4.3.
- That proper storage practices and procedures are being followed as required in Section 5.4.
- The maximum storage inventory of the calendar year in which the inspection occurs.
To maintain reduced frequency inspection status, the party must:
- Remain in compliance with this Regulation, including reporting requirements under Article III and fee payments under Article VIII;
- Make no changes to storage conditions or modifications to the workplace without prior review and approval of the Health Officer;
- Not increase the maximum storage inventory since the most recent inspection;
- Adequately address any releases to avoid environmental health hazards.
- Submit an annual written verification as to items A - D above to the Health Officer by March 1 each year.
Nothing in this section shall prohibit the Health Officer from conducting site visits as necessary to verify the accuracy and validity of reduced frequency status. If reduced frequency inspection status is found to be unwarranted, the site visit will be treated as an annual inspection.
Section 5.3 - Reinspections: The Health Officer shall conduct reinspections of those workplaces which have been found to be in violation of this Regulation. These reinspections shall be conducted as necessary to verify correction of such violations.
Section 5.4 - Storage Practices: All parties shall store all toxic, hazardous, or polluting substances that may be at their workplaces according to practices and procedures which will assuredly prevent contamination of air, groundwater and surface water and which will assuredly prevent accidental release. Parties shall so store such substances even if their storage is only short-term, pending their use or disposal of such substances or pending completion of the manufacturing process and shipment of the manufactured substance in the ordinary course of business.
The Health Officer shall develop written criteria for evaluating storage practices and procedures for conformity with these requirements. Such written criteria shall be available to the public, upon request, at no cost. The Health Officer shall review with each party that is inspected whether the party's storage practices and procedures meet these criteria.
The Health Officer, in proper cases, shall report suspected violations of state law to appropriate state agencies.
Section 5.5 - Records: The Health Officer shall also maintain the following information:
- Inventories and status sheets filed pursuant to Article III of this Regulation, indexed by name of the party:
- Reports from on-site inspections, indexed by the name of the party;
- Variances and applications for variances, as provided under Article IX of this Regulation;
- Public health and environmental information on those toxic, hazardous, or polluting substances listed on the inventories received by the Health Officer. Such information may include, but is not limited to, physical and chemical characteristics; physical and health hazards; generally applicable precautions for safe handling and use; procedures for clean up of spills and leaks; generally applicable control measures; and emergency and first aid procedures. The information referred to in this subsection D of Section 5.5 shall be gathered by the Health Officer, insofar as possible, from sources other than regulated parties. Copies of this information shall be made available to the public, upon request, during business hours free of charge, except for a reasonable cost for duplication.
- The Health Officer shall have the authority to issue citations for any violations of this Regulation. Any person who shall fail to comply with any provision of this Regulation shall be liable for monetary civil penalties of not more than One Thousand ($1,000.00) Dollars for each violation or day that the violation continues. The citation shall be written and cite with particularity the section of this Regulation alleged to have been violated and the right to appeal.
- Not later than twenty (20) days after receipt of the citation, the alleged violator may petition the appropriate appeals board of Washtenaw County for an administrative hearing to affirm, dismiss or modify the citation. This hearing shall be held thirty (30) days after the receipt of the petition. The decision of the appropriate appeals board of Washtenaw County shall be final, unless within sixty (60) days of the decision a review is granted.
- The person aggrieved by the decision may petition the Washtenaw County Circuit Court for review no later than sixty (60) days following receipt of the final decision.
- A civil penalty becomes final if a petition for an administrative hearing is not received within the time specified in this section.
- Notwithstanding the existence or pursuit of any other remedy, the Health Officer may maintain an action in the name of Washtenaw County in a court of competent jurisdiction for any injunction or other appropriate process against any party to enforce this Regulation.
Section 5.8 - Power to Establish Policy and Guidelines: The Health Officer is hereby granted the authority to establish policies and guidelines, not in conflict with the purpose and intent of this Regulation for the purpose of carrying out the responsibilities herein delegated to the Health Officer by law. All such policies shall be in writing and shall be kept in a policy file available for public inspection upon request.
Section 5.9 Emergency Notification: The Health Officer, upon learning of an emergency discharge of a toxic, hazardous, or polluting substance, shall notify the Washtenaw County Office of Emergency Management.
Section 5.10 Annual Report: Each year the Health Officer must report to the Board the number and nature of inspections and type of enforcement actions undertaken in the previous year.
Article VI - FalsificationIt shall be unlawful for a party, or any officer, director, or employee of a party, to knowingly, or recklessly, or negligently fail to comply with the provisions of this Regulation, or to misrepresent, falsify, conceal, destroy or fail to retain information necessary to comply with this Regulation. The dissolution of a corporation shall not discharge its directors, officers or employees from liability for such conduct.
Article VII - Trade SecretsThis Regulation shall not be construed as limiting any rights, obligations, or remedies regarding trade secrets existing under applicable law, except as is necessary to achieve the objectives of this Regulation and as expressly provided below.
Section 7.1: A party may withhold the chemical name (but not the common name) of a toxic, hazardous, or polluting substance from inventories and the status sheets required by Article III provided that the party shall:
- Establish that the substance is a trade secret by showing:
- That the specific substance has not been published or disseminated or has not otherwise become a matter of general public knowledge.
- That the substance has competitive value in regard to the portion or phase of any scientific or technical information design, process, procedure, or formula which shall be substantially harmed by disclosure; and
- That the specific substance cannot be discovered lawfully by analytical techniques, laboratory procedures, or other means available to any potential competitor, including reverse engineering; and
- The substance is not required to be disclosed to the public under any federal or state law.
- Establish that the substance is not a suspected or recognized carcinogen, mutagen, teratogen, or cause of significant irreversible damage to human organs or body systems, as demonstrated through human, animal and other experimental media; and
- Identify the substance on the inventory and status sheet by a generic chemical classification that would provide sufficient information upon which a health professional could render recommendations for adequate safeguards to prevent exposure to the toxic, hazardous, or polluting substance; and
- Provide the withheld information on a confidential basis to a treating physician/nurse who states, (in writing, except in an emergency situation), that a patient's health problems may be related to exposure to the substance. A statement to this effect with the name and phone number of the person or persons authorized, on a 24-hour a day basis, to disclose the withheld information shall be included on the status sheet.
- A statement of the information the party deems to be a trade secret, protected under Section 5.7; and
- A true statement that the conditions of Section 7.1, subsections A-C have been satisfied; and
- The chemical name that, but for Section 7.1, would have been required on the status sheet and on the inventory.
Section 7.4: Notwithstanding any other provision of this Regulation, the Health Officer, is authorized to disclose trade secret information when such action is necessary to properly protect health, safety or property in an emergency situation.
Section 7.5: Within sixty days of receipt of a trade secret request sheet pursuant to Section 7.2 of this Article, the Health Officer, shall consider the evidence to determine if the party has supported the claim that the specific chemical identity is a trade secret pursuant to Section 7.1 of this Article. The Health Officer shall notify said party in writing of his/her determination regarding the party's trade secret request.
Section 7.6: If the trade secret request is denied, that party is then required to comply with the full provisions of this Regulation within ten working days of receipt of the decision of the Health Officer.
Section 7.7: The Health Officer may revoke any trade secret designation upon the basis of new information showing that the original facts requested in Section 7.1 have changed; provided, however, that public disclosure of the claimed trade secret shall not be made until ten (10) calendar days after the holder of the trade secret is notified of the proposed revocation, unless the holder of the trade secret files an appeal of the revocation pursuant to Section 9.2, below, in which event public disclosure would be stayed pending the decision of the appropriate appeals board of Washtenaw County. If the appropriate appeals board of Washtenaw County upholds the proposed revocation, public disclosure shall not be made until ten (10) calendar days after receipt by the holder of the claimed trade secret of the written findings and decisions of the appropriate appeals board of Washtenaw County.
Article VIII - FeesSection 8.1 - Reporting Fee: Each party required to report under Section 3.1 shall pay an annual reporting fee to the Health Officer with the submission of a toxic, hazardous or polluting materials status sheet. The annual reporting fee shall be based on the aggregate maximum storage inventory which must be reported on that status sheet and shall be paid by March 1 of each year.
Section 8.2 - Inspection Fee: Each party whose workplace is inspected under Section 5.1 shall pay an inspection fee to the Health Officer based on the aggregate maximum storage inventory for the calendar year in which the inspection occurs. The minimum threshold for inspection fees shall be established at 56 gallons (450 pounds).
Section 8.3 - Reinspection Fee: For each reinspection in which violations are found to persist, the reinspected party shall pay a reinspection fee to the Health Officer.
Section 8.4 - Optional Service Fees: Other fees may be assessed by the Health Officer for requested, non-mandated services, such as on-site consultations and plan reviews.
Section 8.5 - Fee Amounts: The fee amounts shall be determined by a schedule to be approved and amended as necessary by the Washtenaw County Board of Commissioners.
Article IX - Variances and AppealsThe appropriate appeals board of Washtenaw County shall hear appeals and may grant individual variances from provisions of this Regulation by a concurring vote of the majority of its members where it is determined that no substantial health hazard is likely to occur from the requested variance and unnecessary hardship might result from strict compliance with this Regulation.
Section 9.1 - Variances: A request for a variance shall be in writing and shall contain a detailed description of the variance sought. The request for a variance, together with a fee of Fifty ($50.00) Dollars, shall be filed with the Health Officer.
Section 9.2 - Appeals: A notice of appeal shall be in writing and shall specify the particular grounds on which it is based. The notice of appeal, together with a fee of One Hundred ($100.00) Dollars, shall be filed with the Health Officer.
Section 9.3 - Hearing: Opportunity for a hearing shall be given at the next scheduled meeting of the appropriate appeals board of Washtenaw County following receipt of a notice of appeal or request for a variance, unless such notice or request is received within less than fourteen (14) calendar days of the time of such a meeting, in which event a hearing shall be provided at a subsequent or special meeting of the appropriate appeals board of Washtenaw County. Notice of a hearing shall be published at least five (5) calendar days prior to the date of the hearing in a newspaper of general circulation in Washtenaw County. Notice shall also be made to the township or municipality in which the party's relevant workplace is located and to adjacent property owners as determined by the Health Officer. The appropriate appeals board of Washtenaw County shall furnish the applicant/appellant with a written report of its findings and decision within sixty (60) days of the date of such hearing.
Article X - Waiver of Rights InvalidAny waiver of the rights or benefits of this Regulation is against public policy and is null and void.
Article XI - SeverabilitySection 11.1: If any provision, section, or word of this Regulation, or the enforcement thereof, is held to be invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect or render invalid or unenforceable any other provision of this Regulation. To this end, each of the provisions and sections of this Regulation are severable.
Section 11.2: If this Regulation or the enforcement of this Regulation is held to be invalid for any geographical area, such a holding shall not affect the validity or enforceability of this Regulation in any other area of Washtenaw County.
Article XII - ImplementationThe effective date of this Regulation is November 27, 1987.
Article XIII - Short Name
This Regulation, which was previously referred to as the "Washtenaw County Public Health Division Community Right-to-Know Regulation of 1986", may now be referred to as the "Washtenaw County Pollution Prevention Regulation of 1992".