[HISTORY: Adopted by the Common Council of
the City of New Berlin 10-10-2000 by Ord. No. 2124 as Secs. 11.12, 11.13
and 11.15 of the Municipal Code; amended in its entirety 5-23-2023 by Ord. No. 2672. Subsequent amendments noted where applicable.]
The purposes of this chapter are:
The City finds that:
A.
Increasing production and consumption rates, continuing
technological development and energy requirements have led to the
generation of greater quantities of hazardous materials;
B.
The problems of disposing of hazardous materials are
increasing as a result of air and water pollution controls and a shortage
of available landfill sites; particularly, those certified to receive
hazardous materials;
C.
While it is technologically and financially feasible
for hazardous material generators to dispose of their materials in
a manner which has less adverse impact on the environment than current
practices, such knowledge is not being utilized to the extent possible;
D.
Even though the City is not heavily industrialized,
there is a significant daily hazardous material management and disposal
problem; and
E.
The public health and safety and the environment are
threatened where hazardous materials are not managed and disposed
of in an environmentally sound manner.
As used in this chapter, the following terms
shall have the meanings indicated:
The discharge, deposit, injection, dumping, spilling, leaking
or placing of any hazardous material into or on any land or water
so that this hazardous material or any constituent thereof may enter
the environment, be emitted into the air, or be discharged into any
waters, including groundwaters.
The act or process of producing hazardous material.
Any material, waste or combination of materials of a solid,
liquid, contain gaseous or semisolid form which, because of its quantity,
concentration or physical, chemical or infectious characteristics,
and which are defined as hazardous substances pursuant to Chapter
292 of the Wisconsin Statutes, as well as hazardous material and waste
as identified by the US EPA, the State of Wisconsin DNR, the United
States DOT, OSHA, the US Center for Disease Control or the US Nuclear
Regulatory Commission, may cause or significantly contribute to an
increase in mortality or an increase in serious irreversible or incapacitating
reversible illness; or pose a substantial present or potential hazard
to human health or the environment when improperly treated, stored,
transported or disposed of, or otherwise managed. Such materials include,
but are not limited to, those as defined above, inclusive of those
which are toxic, carcinogenic, flammable, irritants, strong sensitizers
or which generate pressure through decomposition, heat or other means,
as well as containers and receptacles previously used in the transportation,
storage, use or application of the substances described as a hazardous
material or waste.
The Mayor of the City of New Berlin or his or her designated
agent.
Any individual, partnership, corporation (including a government
corporation), trust, association, firm, joint stock company, organization,
commission, the city or federal government, or other entity.
Containment in such a manner as not to constitute disposal.
The movement from the point of generation to any intermediate
site, and finally to the point of ultimate storage or disposal.
Any method, technique or process, including neutralization,
designed to change the physical, chemical or biological character
or composition of hazardous material so as to neutralize or render
it nonhazardous, safer for transport, amenable for recovery or storage
or reduced in volume.
TREATMENT FACILITY --
A location for treatment, including an incinerator or a facility
where generation has occurred.
A.
Thirty days after the effective date of this chapter,
no person shall construct, substantially alter or operate any hazardous
material treatment or disposal facility or site, or store, transport,
treat or dispose of any hazardous material, without first obtaining
a permit from the City Council for such facility, site or activity
after review and recommendation by the Plan Commission.
B.
The City Council may issue, vary or modify the terms
of any permit, or suspend, revoke or deny a permit, to achieve the
purposes of this chapter, except that the City Council may not issue
a permit for a period exceeding one year. The City Council may establish
the appropriate permit fee to cover the costs associated with its
issuance.
C.
As a condition
of the issuance of the permit provided for hereunder, the individual
or entity which operates any hazardous material treatment or disposal
site or facility, or transports, treats or disposes of any hazardous
material, grants permission to the City of New Berlin and its authorized
representatives to enter their property to determine compliance with
the permit and any applicable hazardous material management or processing
activities.
The City Council may grant a variance not to
exceed 90 days upon a showing that compliance with the requirements
of this act or the rules and regulations promulgated pursuant thereto
would result in an unreasonable financial hardship, and that the public
health and welfare would not be endangered.
For the purpose of enforcing this chapter or any rule or regulation
promulgated pursuant hereto, the City may request, within reasonable
limits, and in a reasonable manner, upon presenting appropriate credentials
to the owner, operator or agent in charge, permission to enter any
property within the City where hazardous materials are generated,
stored, treated and/or disposed of; and to inspect and obtain samples
of any hazardous material or substance used in the treatment of hazardous
material and to inspect and copy any records, reports, information
or test results relating to the purposes of this chapter. In the event
the owner of the property refuses to permit access for the purposes
set forth herein, representatives of the City may apply for a special inspection
warrant pursuant to Wisconsin Statute § 66.0119. In the
event the City believes hazardous material is being generated or processed
in a manner which presents an imminent danger to the public health,
safety or welfare and the protection of the public health, safety
and welfare requires emergent action to be taken to prevent injury
to persons or damage to property, the City may enter the premises
to promptly address the public health, safety and welfare threat.
A.
Any person adversely affected by an action taken pursuant
to the provisions of this chapter or the rules and regulations promulgated
pursuant thereto is entitled to a hearing before the City Council
upon filing with the City Clerk, within 15 days of the date of such
action, a written request for a hearing.
B.
The hearing shall be conducted in such a fashion that
the person adversely affected may be represented by counsel and may
present evidence, call and examine witnesses and cross examine other
witnesses called. The City Council may call witnesses and may issue
subpoenas. All witnesses shall be sworn by the City Council.
C.
The City Council shall cause notes to be taken of
the testimony and shall mark and preserve all exhibits. Within 20
days of such hearing, the City Council shall mail or deliver to the
person adversely affected a written determination stating the reason
therefor. The determination shall be a final determination.
A.
The Mayor may suspend a permit issued in accordance with § 133-4 of this chapter for a period not to exceed three months if the holder of the permit is in violation of this chapter or the rules and regulations promulgated pursuant thereto. Written notice of the suspension shall be served upon the affected party or his or her designated agent. If no appeal is filed within 10 days of receipt of this notice, the suspension shall become final.
B.
Where there is a history of repeated violations or
a permit has been previously suspended, the Mayor may revoke a permit
upon a showing of subsequent violation and upon providing the affected
party, or his or her designated agent, with written notice of the
intent to revoke the permit, with an opportunity for a hearing prior
to revocation. The revocation shall take effect 15 days after notice
has been given, unless a written request for a hearing is received
by the Mayor within that period.
C.
Where a permit has been revoked, the person affected
has the right to reapply for a permit. If this person is able to demonstrate
an ability and willingness to comply with the permit and with the
provisions of this act and the rules and regulations promulgated pursuant
thereto, the City Council may consider granting this new permit.
Notwithstanding any other provision of this
chapter, if the Mayor finds that any person is operating a storage,
treatment or disposal facility or site, or is transporting hazardous materials
in an illegal, unsafe or otherwise improper manner as to endanger
the public health or welfare, the Mayor may order such person to immediately
discontinue the act. Upon failure to comply with this order, the Mayor
may request the City Attorney or his designee to commence appropriate
civil action in the Circuit Court for Waukesha County or other court
of competent jurisdiction to secure a restraining order, a preliminary
injunction, a permanent injunction or other appropriate relief.
If the Mayor has reason to believe that there
has been a violation of this act or of the rules and regulations promulgated
pursuant thereto, he may, in lieu of or in addition to any other enforcement
procedures, give written notice of such alleged violation to the person
or persons responsible therefor, and order these persons to take the
corrective measures as are deemed reasonable and necessary. This notice
shall state the nature of the violation and shall allow reasonable
time for the performance of the necessary corrective measures. If
a person fails to comply with this notice within the time period stated
in the notice, the Mayor shall institute such action as may be necessary
to terminate the violation.
No person shall discharge, or cause to be discharged, leak, leach or spill upon any public street, alley or public property, or onto the ground, surface waters, subsurface waters or aquifers, or on any private property except those areas specifically licensed for hazardous material disposal or landfill activities, within the City, any hazardous materials as defined by § 133-3.
A.
Containment, cleanup and restoration. Any person in
violation of this section shall, upon direction of any emergency government
officer or staff, police or fire department representative, begin
immediate actions to contain, clean up and remove to an approved repository,
the offending hazardous material and restore the site to its original
condition. Should any person fail to engage or complete the requirements
of this section, the Office of Emergency Management may order the
required actions to be taken by public or private resources, with
all costs incurred by the City to be reimbursed by anyone violating
this section, including, but not limited to, the imposition of a lien
against the offending property as a special charge for current services.
B.
Access. Access to any site, public or private, where
a prohibited discharge is indicated or reasonably probable will be
provided to police, fire, emergency management staff or officers for
the purpose of evaluating the threat to the public and monitor containment,
cleanup and restoration activities. If permission for such access
is requested and not granted, the City reserves the right to pursue
a special inspection warrant or other warrant under the State of Wisconsin
Criminal Code as may be required by law.
C.
Public protection. Should any prohibited discharge
occur that reasonably causes a threat to the life, health, safety
or welfare of the public, the Mayor or Director of Emergency Management,
or in his/her absence, the Deputy Director of Emergency Management,
the City Fire Department or Police Department, may order an evacuation
of the area or take other appropriate protective measures as may be
necessary to deal with an eminent threat to the public health, safety
or welfare.
D.
Enforcement. The Director of Emergency Management
or his/her deputies, and the City Police and Fire Departments, shall
have authority to issue citations or complaints under this section.
E.
Civil liability. Any person in violation of this section
shall be liable to the City for any expenses incurred by the City
or loss or damage sustained by the City by reason of such violation
and to any individual whose person or property was damaged by such
violation. The City may assess the costs of the cleanup or management
of any hazardous material discharge or spill against the owner of
the property where the discharge or spill took place, which shall
be assessed as a special charge for current services under the Wisconsin
Statutes § 66.0627. The individual or entity which caused
the discharge or spill or where the spill is located shall be also
responsible for the costs related to the cleanup and proper disposal
of the spilled or discharged hazardous materials.
Except where otherwise provided herein, any person or entity who shall violate any provision of this chapter or any order, rule or regulation made hereunder, upon conviction thereof, shall be subject to a penalty as provided for by § 1-18 of the Municipal Code of the City of New Berlin. With respect to hazardous material discharges or spills, however, the person responsible for the discharge/spill may be charged an initial fine of $1,000 for the discharge/spill; however, each day the discharge/spill continues shall be considered a separate offense, with the second day and thereafter being assessed a forfeiture of $5,000 per day and if the site is not cleaned up within five days, a forfeiture of $10,000 per day for each day thereafter shall be assessed against the party responsible for the hazardous material discharge/spill.
