City Council

City of Chesapeake 2010
APPROVED Legislative Package

Legislative Initiatives

City of Chesapeake - 2010 APPROVED Legislative Package

REGULATION OF ABOVE GROUND STORAGE TANKS

On November 12, 2008, a liquid fertilizer tank (Tank 201) at the Allied Terminals, Inc. (Allied) facility in Chesapeake, Virginia split apart due to a defective weld. As a result, over two-million gallons of liquid fertilizer surged out, flooding the facility and the adjacent residential neighborhood. While clean-up efforts were instantaneous, unknown amounts of the material entered the Southern Branch of the Elizabeth River and seeped into the ground. Federal, State and local agencies diligently investigated this incident to determine the cause of the tank failure. The U.S. Chemical Safety and Hazard Investigation Board concluded in its May 2009 Investigation Report that the tank failed because the welds on the tank did not meet the industry's quality standards for tank fabrication.

While above ground storage tanks holding petroleum or flammable and/or combustible liquids are subject to state regulation, above ground storage tanks holding other types of liquids are not. This lack of regulation became glaringly obvious in the aftermath of the Allied tank failure. The liquid fertilizer involved in the Allied tank failure does not contain petroleum and is neither flammable nor combustible. According to the U.S. Chemical Safety and Hazard Investigation Board Report, if Tank 201 had been held to the same standard as tanks containing petroleum, the tank would not have failed. Therefore, this incident clearly illustrates a significant gap in the regulation of above ground storage tanks that needs to be remedied.

In response to the Allied tank failure, Chesapeake is requesting additional regulation on all above ground storage tanks capable of holding over one-hundred thousand gallons.

Request:

The City requests that the State Code be amended to provide localities with the authority to require a permit for non-petroleum aboveground storage tanks.

COAL COMBUSTION BY PRODUCTS (COAL ASH)

The use of coal ash as a fill material has come under great scrutiny as a result of the 1.5 million tons of ash deposited at the Battlefield Golf Course in Chesapeake. Based on recent reports, it appears the Environmental Protection Agency (EPA) and the Virginia Department of Environmental Quality (DEQ) are reviewing the placement of coal ash in locations other than lined landfills. There is great concern among our residents that constituents such as lead, arsenic, mercury and other metals which may threaten human health may leach from coal ash when it is exposed to moisture. These constituents may then contaminate drinking wells and reduce the availability of clean groundwater. Residents are further concerned that coal ash is being exposed to the air and becomes air born during construction stages. The City is concerned the impacts of coal ash are not well understood by the state and federal agencies that regulate its use.

Request:

The City seeks an examination by the legislature of the classification of coal ash as a "beneficial use" by state agencies. Further, until more is known, coal ash should be deposited in a lined landfill by qualified individuals. Finally, the City is also concerned that state and federal agencies are not monitoring coal ash uses once disposal is complete. For this reason, the City seeks legislation requiring on-going monitoring of all uses of coal ash.

STORMWATER REGULATIONS

House Bill 1177, passed in 2004, transferred the administration of the Virginia Stormwater Management Program (VSMP) permit program for discharges from construction activities as well as the Municipal Separate Storm Sewer (MS4) permit program from the Virginia Dept of Environmental Quality (DEQ) to the Virginia Dept of Conservation and Recreation (DCR). The Bill also authorized DCR to transfer the administration of the VSMP permit program for discharges from construction activities from DCR to localities. Localities which hold MS4 permits or lie within the Chesapeake Bay Preservation Act (CBPA) area are required to administer the program. Other Virginia localities will have the option to administer the program or leave the administration of the program with DCR.

Additionally HB 1177 authorized DCR to set minimum statewide technical criteria for post-construction stormwater discharges and set a new statewide permit fee for administration of the VSMP permit which is intended to cover the administrative costs of the program. As an MS4 permit holder and a CBPA locality, Chesapeake is required to take over administration of the VSMP permit program. Localities which administer the program will also be required to return 28% of the permit fee back to DCR for program administration and oversight. DCR convened two separate technical advisory committees to develop specific language and content for the revised VSMP regulations, parts I, II, III, and XIII. The regulations were published for a 60 day public notice period on June 22, 2009. In response to the 3000+ comments DCR received during the comment period, significant changes were made to the proposed regulations. On September 17, 2009 the Virginia Soil and Water Conservation Board heard additional verbal comments at their regular scheduled meeting. On October 5, 2009 the Virginia Soil and Water Conservation Board voted to pass the regulations, but at the recommendation of DCR staff, also voted to suspend the regulations so the recent changes could be published for another 30 day comment period which will begin on October 25, 2009.

The proposed regulations are expected to increase City staffing needs, necessitate changes to the PFM and City ordinances, require additional funding, and create significantly more stringent water quality and quantity requirements for new development and redevelopment. The more stringent standards will likely cause some developments or projects to be cost prohibitive. In fact, a number of the "low impact development" (LID) technologies which are being encouraged in these regulations may not be feasible in Chesapeake due to the high water table and soil types found here. Based on recent changes that DCR has proposed, the City will also need to develop a pro-rata fee or "buy down" program in order for certain developments or projects to go forward when water quality criteria cannot be met on site. Unless the City develops its own program, the state buy down program will become the default option and monies will be placed in a statewide water quality improvement fund which will fund agriculture best management practices and other water quality measures statewide. Chesapeake will still remain ultimately responsible for pollutant loads, however. The end result of the recently proposed "buy down" concept is that the burden of compliance with water quality criteria will shift from developers to the local programs.

The City of Chesapeake is committed to protecting the quality of Virginia's water bodies by controlling stormwater quality and quantity to the extent that is practicable. That said, the City believes that the original intent of HB 1177 was to delegate authority to administer the VSMP permit for discharges from construction activities to local governments as a means of streamlining stormwater programs and the permitting process with existing erosion and sediment control programs. Chesapeake believes that the proposed regulations have gone far beyond the original intent of the legislation. The City supports the concept of authorizing local governments to administer the VSMP permit program, however, the proposed regulations, as currently drafted, will require the City to implement new programs without the necessary funding or staffing; stifle development during an economic downturn; and shift the burden of reducing pollutant loads to the local programs. This could put Chesapeake in conflict with other water quality programs such as its MS4 permit and the upcoming Chesapeake Bay Total Maximum Daily Load implementation plan.

Request:

The City requests a 180 day delay in the effective date of the recently adopted stormwater regulations to allow time to pursue a cost/ benefit analysis, impacts on taxes and fees on the citizenry, and to evaluate impacts of practices (BMPs) on the levels of phosphorus.

CIVIL PENALTIES FOR VIOLATIONS OF NOISE ORDINANCE

On November 24, 2009, the Chesapeake City Council adopted comprehensive amendments to the noise ordinance in chapter 26 of the City code. The ordinance includes punishment as a Class IV misdemeanor for violation of the ordinance. There was sentiment among some Council Members that a criminal conviction for violation of the nosie ordinance is too severe a punishment; however, as the City Attorney advised, localities are not authorized to impose civil penalties for these types of violations. Accordingly, a legislative amendment is needed to authorize localities to adopt civil penalties in lieu of criminal sanction for violation of ordinances regulating levels of sound.

Request:

The City of Chesapeake seeks an amendment of Title 15.2 of the Code of Virginia to authorize localities to adopt civil penalties, in lieu of criminal convictions, for the violation of any ordinance prohibiting or regulating sound levels or noise.