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1 COUNCIL BILL NO. 13-6 1 ORDINANCE NO. 13-6 2 AN ORDINANCE CREATING A NEW CHAPTER IN THE BUTTE-SILVER BOW 3 MUNICIPAL CODE ENTITLED “EXCAVATIONS AND DIRT MOVING”, 4 ESTABLISHING REGULATIONS FOR THE CONTROL AND MANAGEMENT OF 5 SOIL; ESTABLISHING AN EXCAVATION CONTROL DISTRICT; ESTABLISHING 6 EXCAVATION AND DIRT-MOVING PROTOCOLS; REGULATING THE 7 EXCAVATION, TRANSPORTATION AND DISPOSAL OF CONTAMINATED SOIL; 8 PROVIDING FOR PERMITS; PROVIDING PENALTIES FOR VIOLATION; 9 PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE 10 HEREIN. 11 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF COMMISSIONERS 12 OF THE CITY AND COUNTY OF BUTTE-SILVER BOW, STATE OF MONTANA: 13 14 8.28.010 Purpose. The purpose of this chapter 15 is to protect human health and the environment 16 by taking the appropriate measures to prevent 17 contaminated soils from migrating to or on a 18 clean site; preventing contaminated soils from 19 being exported to any site other than the Mine 20 ---PAGE BREAK--- 2 Waste Repository; and ensuring contaminated 1 soils are properly capped. 2 8.28.020 Scope. Unless otherwise indicated, 3 this chapter applies to all persons, agencies, 4 institutions, businesses, or government entities 5 living or located within the “Excavation Control 6 District” except for sources exempt from local 7 government regulation under 75-2-301(5), MCA. 8 8.28.030 Definitions: As used in this chapter, 9 unless indicated otherwise, the following 10 definitions apply: 11 Applicant means a property owner or applicant 12 representing a property owner who has filed an 13 application for an “Excavation and Dirt-Moving 14 Permit.” 15 Best Management Practices (BMPs) means schedules 16 of activities, prohibitions of practices, 17 general good housekeeping practices, pollution 18 prevention and educational practices, 19 maintenance procedures, and other management 20 ---PAGE BREAK--- 3 practices to prevent or reduce the migration of 1 contamination from a site. 2 Butte Priority Soils Operable Unit or BPSOU 3 means historic mining areas within and near 4 municipalities of Butte and Walkerville, surface 5 water, and alluvial groundwater associated with 6 Silver Bow Creek, as designated on the National 7 Priority List of sites established by the 8 Environmental Protection Agency (EPA) through 9 the Comprehensive Environmental Response 10 Compensation and Liability Act, (CERCLA). A map 11 of this area is on file in the BSB Clerk & 12 Recorder’s Office. 13 Butte-Silver Bow (BSB) means the local 14 government of the City-County of Butte-Silver 15 Bow, Montana. 16 Cap or capped means an impervious or soil cover 17 that minimizes the migration of contaminated 18 soil. 19 ---PAGE BREAK--- 4 Contaminant of Concern means Lead, Arsenic or 1 Mercury exceeding EPA standards for clean-up 2 action. 3 Contaminated Soils or contamination means soil 4 containing contaminants of concern exceeding EPA 5 action levels for residential, commercial, 6 industrial, or open space and recreation areas. 7 Action levels are: 8 Residential – Exceeding 1,200 parts per 9 million for Lead; Exceeding 250 parts per 10 million for Arsenic; Exceeding 147 parts 11 per million for Mercury 12 Commercial and Industrial - Exceeding 2,300 13 parts per million for Lead; Exceeding 500 14 parts per million for Arsenic. 15 Recreational and Open Space - Exceeding 16 2,300 parts per million for Lead; Exceeding 17 1,000 parts per million for Arsenic. 18 Department means the Butte-Silver Bow County 19 Planning Department. 20 ---PAGE BREAK--- 5 DEQ means the Montana Department of 1 Environmental Quality. 2 EPA means the United States Environmental 3 Protection Agency. 4 Excavation and Dirt-Moving Activity means any 5 activity which changes the volume of dirt on the 6 land surface. This may include the grading, 7 digging, cutting, scraping, or excavating of 8 soil, placement of fill materials, paving, 9 construction, substantial removal of vegetation, 10 or any activity which exposes soil or rock. 11 Excavation Control District means the entirety 12 of the Silver Bow Creek/Butte Area National 13 Priority List site within Silver-Bow County. A 14 map of the above-described geographical area, as 15 illustrated and approved by Natural Resource 16 Information System, is available and on file in 17 the City-County’s Clerk and Recorder’s office. 18 Excavation and Dirt-Moving Permit means a Permit 19 issued under this ordinance allowing an 20 ---PAGE BREAK--- 6 Applicant to proceed with an Excavation and 1 Dirt-Moving Activity. 2 Excavation and Dirt-Moving Protocols means those 3 protocols attached as Exhibit and 4 incorporated herein, approved by the EPA and the 5 MDEQ and updated as necessary that set forth the 6 protocols for management of excavated materials 7 (soil, dirt or debris) within the Excavation 8 Control District. 9 Mine Waste Repository means the designated area 10 for disposal of contaminated soil and mine 11 waste. 12 Permit Area means the surface property defined 13 on the set forth in the Excavation and Dirt- 14 Moving Permit. 15 Person means an individual, landowner, 16 partnership, firm, association, municipality, 17 public or private corporation, responsible 18 party, the state or a subdivision or agency of 19 the state, trust, estate, interstate body, 20 ---PAGE BREAK--- 7 federal government or an agency of the federal 1 government or any other legal entity. 2 Remedy means the EPA approved engineering 3 components and remediation requirements, 4 including remedial action objectives, 5 applicable, relevant and appropriate 6 requirements, and clean-up levels. 7 8.28.030 Exemptions. The following activities 8 are exempt from Excavation and Dirt-Moving 9 provisions: 10 Any “Excavation and Dirt-Moving Activity” 11 required by the EPA or MDEQ or Potentially 12 Responsible Party as part of general Operations 13 & Maintenance, a removal or a remedial action in 14 compliance with Superfund law and the permanent 15 remedy, provided that the Butte-Silver Bow 16 County Planning Department is notified prior to 17 the commencement of such EPA / MDEQ / PRP 18 approved work. 19 Any “Excavation and Dirt-Moving Activity” 20 related to Agricultural activities as defined by 21 ---PAGE BREAK--- 8 the Montana Department of Revenue, Property 1 Assessment Division, specifically for the 2 production of plants and/or animal pasturing, 3 crops, and the raising and caring for crops, 4 livestock or poultry and provided that such 5 activities do not take place in an area where a 6 soil cap has been used as a Superfund Remedy by 7 the EPA and/or the MDEQ. 8 Any “Excavation and Dirt-Moving Activity” 9 related to the production, harvesting and 10 logging of timber and timber products and 11 provided that such activities do not take place 12 in an area where a soil cap has been used as a 13 Superfund Remedy by the EPA and/or the MDEQ. 14 Any “Excavation and Dirt-Moving Activity” 15 related to emergency responses including Utility 16 Emergencies such as potable water line breaks, 17 sanitary sewer line breaks, stormwater sewer 18 line breaks, drain blockages, electric power 19 emergencies (transmission and/or distribution), 20 natural gas or propane emergencies (transmission 21 ---PAGE BREAK--- 9 and/or distribution), land management practices 1 posing an immediate danger to life or property, 2 or substantial flood or fire hazards. 3 Any “Excavation and Dirt-Moving Activity” 4 related to Emergency Land Management practices 5 necessitated by fire, flood, windstorm, 6 earthquake, structural failure or other 7 catastrophic events. Within five days after 8 commencement of such activity, the Owner shall 9 notify Butte-Silver Bow Planning Department of 10 the action with an explanation of why emergency 11 action was necessary. No notification is 12 required prior to an Emergency Action. 13 Reasonable care should be taken to minimize soil 14 disturbance and erosion during the conduct of 15 emergency land management practices; and 16 Any “Excavation and Dirt-Moving Activity” 17 removing a volume of soil less than 1 cubic yard 18 in the BPSOU or less than 3 cubic yards in all 19 remaining areas of the Excavation and Dirt- 20 Moving Control District. 21 ---PAGE BREAK--- 10 8.28.040 Permit Requirements. An Applicant shall 1 not commence any “Excavation and Dirt-Moving 2 Activity” nor receive any of the building, 3 grading, or other land development permits 4 within the “Excavation and Dirt-Moving Control 5 District” without fist meeting the requirements 6 of this Chapter. 7 A. Application Requirements. Any Applicant 8 desiring a permit for an “Excavation and Dirt- 9 Moving Activity” shall submit to the Department 10 an “Excavation and Dirt-Moving Permit 11 Application” on a form provided for that 12 purpose. The permit application shall meet the 13 “Excavation and Dirt-Moving Protocols”. 14 B. Application Procedure. 15 1. Excavation and Dirt-Moving Permit 16 applications shall be filed with the Department 17 on any regular business day. 18 2. The permit shall only be applicable to 19 the Permit Area as defined in the permit 20 application approved by the Department. 21 ---PAGE BREAK--- 11 1 C. Permit Duration. Permits issued under 2 this section shall be valid for six months 3 from the date of issuance unless a written 4 extension is granted by the Department. 5 8.28.050 Compatibility with other Regulations. 6 In any case where a provision of these 7 regulations is found to be in conflict with a 8 provision of any zoning, building, fire, safety, 9 or other Butte-Silver Bow code, the provision 10 which establishes the higher standard for the 11 promotion and protection of the health and 12 safety of the people shall prevail. 13 8.28.060 Liability. Neither the provisions of 14 this Chapter nor compliance with the provisions 15 of this Chapter shall relieve any Applicant from 16 the responsibility for damage to any person or 17 property otherwise imposed by law, nor shall it 18 impose any liability upon Butte-Silver Bow for 19 damage to any person or property. 20 8.28.070 Violations, Enforcement, Penalties. 21 ---PAGE BREAK--- 12 A. Violations. It shall be unlawful for 1 any Applicant to violate any of the provisions 2 of this chapter by doing any act forbidden or by 3 failing to perform any duty imposed herein. Any 4 such act or omission shall be deemed a 5 misdemeanor and jurisdiction for prosecution 6 thereof shall be vested in the City Court or 7 Justice Court of Butte-Silver Bow. 8 In the event the violation constitutes an 9 immediate danger to human health and the 10 environment or public safety, Butte-Silver Bow 11 is authorized to enter upon the subject private 12 property, without giving prior notice, to take 13 any and all measures necessary to abate the 14 violation and/or restore the property. Butte- 15 Silver Bow is authorized to seek costs of the 16 abatement as outlined in 8.28.080(7). 17 8.28.080 Enforcement: The provisions of this 18 ordinance shall be enforced as follows: 19 ---PAGE BREAK--- 13 A. The Department and the appropriate law 1 enforcement officials shall be responsible for 2 enforcement of this ordinance. 3 B. Notice of Violation. When the Department 4 determines that an “Excavation and Dirt-Moving 5 Activity” is not being carried out in accordance 6 with the requirements of this Chapter, it shall 7 issue a written notice of violation to the 8 Applicant. The notice of violation shall 9 contain: 10 1. The name and address of the owner and/or 11 applicant; 12 2. The physical address or a description of 13 the building, structure or land upon which the 14 violation is occurring; 15 3. A statement specifying the nature of the 16 violation; 17 4. A description of the remedial measures 18 necessary to bring the “Excavation and Dirt- 19 Moving Activity” into compliance with this 20 ---PAGE BREAK--- 14 Chapter and a time schedule for the completion 1 of such remedial action; 2 Such notice may require without limitation: 3 a. That violating practices or operations 4 shall cease and desist. 5 b. The abatement or remediation of 6 contamination hazards and the restoration of any 7 affected property. 8 c. Payment of a fee to cover 9 administrative and remediation costs. 10 d. The implementation of source control 11 or BMPs. 12 5. A statement of the penalty or penalties 13 that may be assessed against the person to whom 14 the notice of violation is directed. 15 6. A statement that the determination of 16 violation may be appealed as defined in 17 subchapter 8.28.100. 18 7. A statement specifying that, should the 19 violator fail to restore compliance within the 20 established time schedule, the work may be done 21 ---PAGE BREAK--- 15 by the Department, Butte Silver Bow Public Works 1 Department or a designated contractor, and the 2 expense thereof shall be charged to the 3 applicant. 4 C. Suspensions Due to Emergency Situations. 5 The Department may, without prior notice, 6 suspend “Excavation and Dirt-Moving Activity” to 7 stop an actual or threatened violation which 8 presents or may present imminent and substantial 9 danger to human health and the environment, or 10 to the safety and welfare of a member of the 11 public. If the applicant fails to comply with a 12 suspension order issued in an emergency, the 13 authorized enforcement agency may take such 14 steps as deemed necessary to prevent or minimize 15 danger to human health and the environment. 16 D. Stop Work Orders. If issues identified in 17 the notice of violation are not addressed within 18 the required time schedule, the Department will 19 issue to the Applicant a stop work order. An 20 Applicant receiving a stop work order will be 21 ---PAGE BREAK--- 16 required to halt all “Excavation and Dirt-Moving 1 Activity.” This stop work order will be in 2 effect until the Department confirms that the 3 “Excavation and Dirt-Moving Activity” is in 4 compliance with the provisions of this chapter 5 and the violation has been satisfactorily 6 resolved. Failure to address a notice of 7 violation in a timely manner can result in 8 civil, criminal or monetary penalties in 9 accordance with the enforcement measures 10 authorized in Section 8.29.090. 11 8.28.090 Penalties: The penalties for violations 12 of this chapter are as follows: 13 A. Civil and Criminal Penalties. In 14 addition to or as an alternative to any penalty 15 provided herein or by law, any Applicant who 16 violates the provisions of this Chapter 17 constitutes a MISDEMEANOR punishable by a fine 18 not to exceed $500.00 or imprisonment in the 19 county jail for a term not to exceed six 20 months or by both a fine and imprisonment. Such 21 ---PAGE BREAK--- 17 person shall be guilty of a separate offense for 1 each day during which the violation occurs or 2 continues. 3 B. Restoration of Lands. An Applicant 4 may be required to restore land to its 5 undisturbed condition. In the event that 6 restoration is not undertaken within a 7 reasonable time after notice, the Department may 8 take necessary corrective action, the cost of 9 which shall become a lien upon the property 10 until paid. 11 C. Compensatory Action. In lieu of 12 enforcement proceedings, penalties, and remedies 13 authorized by this Chapter, the authorized 14 enforcement agency may impose alternative 15 compensatory actions upon an Applicant. 16 D. Violations Deemed a Public Nuisance. 17 In addition to the enforcement processes and 18 penalties provided, any condition caused or 19 permitted to exist in violation of any of the 20 provisions of this Chapter is a threat to public 21 ---PAGE BREAK--- 18 health, safety, and welfare, and is declared and 1 deemed a nuisance, and may be summarily abated 2 or restored at the Applicant’s expense, and/or a 3 civil action to abate, enjoin, or otherwise 4 compel the cessation of such nuisance may be 5 taken. 6 E. Remedies Not Exclusive. The remedies 7 listed in this Chapter are not exclusive of any 8 other remedies available under any applicable 9 federal, state or local law and it is within the 10 discretion of the authorized enforcement agency 11 to seek cumulative remedies. 12 8.28.100 Appeals. Any Applicant aggrieved by a 13 decision of the Department (including any 14 decision with reference to a Notice of 15 Violation, waiver, or variance from the terms of 16 this Chapter) may appeal by filing a written 17 notice of appeal within thirty (30) calendar 18 days of the issuance of said decision to the 19 Second Judicial District Court. 20 8.28.110 Enforcement Measures after Appeal. If 21 ---PAGE BREAK--- 19 a violation has not been corrected pursuant to 1 the requirements set forth in the Notice of 2 Violation, or, in the event of an appeal, within 3 ten (10) days of the decision of the District 4 Court upholding the decision of the Department, 5 then representatives of the Department may enter 6 upon the subject private property and are 7 authorized to take any and all measures 8 necessary to abate the violation and/or restore 9 the property. It shall be unlawful for any 10 Applicant to refuse to allow the Department or a 11 designated contractor to enter upon the premises 12 for the purposes set forth above. Any violation 13 will also be reported to the Enforcement 14 Division of the Montana Department of 15 Environment Quality. 16 8.28.120 Cost of Abatement of the Violation. 17 Within twenty (20) days after abatement of the 18 violation, an Applicant will be notified of the 19 cost of abatement, including administrative 20 costs. The Applicant may file a written protest 21 ---PAGE BREAK--- 20 to the Council of Commissioners objecting to the 1 amount of the assessment within ten (10) days. 2 If the amount due is not paid within forty-five 3 (45) days, the charges shall become a special 4 assessment against the property and shall 5 constitute a lien on the property for the amount 6 of the assessment. 7 Any Applicant violating any of the provisions of 8 this article shall become liable to the City- 9 County by reason of such violation. If the sum 10 to be repaid on or before the date due, the 11 Clerk and Recorder shall certify the amount 12 thereof, with the description of the land to be 13 charged, and shall enter the sum on the 14 assessment list as a special tax on the land, 15 and shall enter the same on the assessment list 16 of Butte-Silver Bow as a special tax on the 17 land. If the land for any reason is exempt from 18 general taxation, the amount of such charge may 19 be recovered by direct claim against the lessee 20 and collected in the same manner as personal 21 ---PAGE BREAK--- 21 taxes. When such charges are collected, they 1 shall be returned to the fund from which 2 abatement was paid. 3 8.28.130 Severability: If any provision of this 4 Ordinance or any section thereof, in any 5 circumstances is held invalid, the validity of 6 the remainder of the Ordinance and of the 7 application of any of the other provisions or 8 sections shall not be affected. 9 8.28.140 Repealer: All ordinances and 10 resolutions in conflict herewith are 11 repealed. 12 8.28.150 Effective Date: This Ordinance shall be 13 in full force and effect from and after thirty 14 (30) days after its passage and approval. 15 16 PASSED this day of 17 18 19 20 21 22 CINDI SHAW 23 CHAIRMAN OF THE COUNCIL OF COMMISSIONERS 24 25 ---PAGE BREAK--- 22 1 APPROVED this day of 2 3 4 5 6 MATT S. VINCENT 7 CHIEF EXECUTIVE 8 9 ATTEST: 10 11 SALLY J. HOLLIS 12 CLERK AND RECORDER 13 14 15 16 17 18 APPROVED AS TO FORM: 19 20 21 22 23 EILEEN JOYCE 24 COUNTY ATTORNEY 25 26 27 WILLIAM O. ANDERSEN 28 CHAIRMAN, JUDICIARY COMMITTEE 29 30 31 32 33