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Ordinance 1983-06 ORDINANCE NO. 83-6 AN ORDINANCE OF THE CITY OF GILROY ADOPTING THE MODEL HAZARDOUS MATERIALS sTORAGE ORDINANCE THE CITY COUNCIL OF THE CITY OF GILROY DOES ORDAIN AS FOLLOWS: SECTION I: That attached hereto and incorporated herein by reference is THE SANTA CLARA COUNTY MODEL HAZARDOUS MATERIALS STORAGE PERMIT OP~INANCE, consisttnE of 41 pa§es and a Table of Contents, and approved May 5, 1983, by the Santa Clara County Inter§overnmental Council, which is hereby adopted to apply in the City of Gilroy. SECTION II. All other ordinances and parts of ordinances in conflict herewtith are hereby repealed. SECTION III: This ordinance shall take effect and be in full force thirty (30) days from and after its adoption and approval. PASSED AND ADOPTED this 20th day of June, 1983, by the following vote: AYES: COUNCILMEMBERS: NOES: ALBERT, GAGE, HUGHAN, LINK, TAYLOR, VALDEZ and GOODRICH COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE APPROVED: ATTES. T: ORDINANCE NO. 83-6 SANTA CLARA COUNTY MODEL HAZARDOUS MATERIALS STORAGE P~rRMIT ORDINANCE DRAFTED BY THE SANTA CLARA COLrNTY HAZARDOUS MATERIALS MODEL CODE TASK FORCE SPONSORED BY THE SANTA CLARA COUNTY FIRE CHIEFS ASSOCIATION IN CONJUNCTION WITH THE SANTA CI-~RA COUNTY CITY MANAGERS ASSOCIATION AS APPROVED BY SANTA CLARA COUNTY INTERGOVERNMENTAL COUNCIL MAY 5, 1983 TABLE OF CONTENTS HAZARDOUS MATERIALS STORAGE PERMIT ORDINANCE May 5, 1983 Chapter .01 .02 1.03 .O4 .05 II.01 II.02 III.01 III.02 III.03 III.04 III.05 III.06 III.07 III.08 III.09 III.lQ IV.01 IV. 02 IV.03 V.01 V.02 V.03 V.04 VI .0I VI .02 VI .03 VII.01 VII.02 VII.03 VII.04 ~II.05 PART I GENERAL PROVISIONS Purpose ................... 1 General Obligation - Safety and Care ..... I Specific Obligation ............. 2 Definitions .......... ' ...... '. 2 Professional Assistance for City 4 · Determinations ..... . · - ? ...... PART II MATERIALS REGULATED Materials Requlated ............. 5 6 Exclusions ................ PART III CONTAI~P4ENT STAndARDS 'Containment of Hazardous Materials ..... 7 Mew Storage Wacilities .... ' ....... 8 Existing Storage Facilities ......... 11 Out of Service Storage Facilities ...... 12 Monitoring ................. 13 Maintenance, Repair or Replacemen~ ..... 13 Handling .................. 14 Secured Facilities ............ ~ 14 Emergency Equipment ............ ~ . 14 Posting of Emergency Procedures ....... 14 PART IV HAZARDOUS MATERIALS MANAGEMENT PLAN Hazardous Materials Management Plan ..... 15 Standard Form HMMP ............. 15 Short Form HMMP - Minimal Storage Site. . . 20 PART V HAZARDOUS MATERIALS INVENTORT Hazardous Materials Inventory Statement · . . 21 Information Required ............ 21 Public Records ............... 22' Trade Secrets ................ 22 PART VI RESPONSIBILITY Reporting Unauthorized Discharge ' 26 Cleanup Responsibility ............ 28 Indemnification .............. 29 PART VII INSPECTIONS AND RECORDS Inspections by City ............. 29 Inspections by Permittee .......... 30 Special Inspections ............ 31 · Substituted Inspections ........... 31 Maintenance .of Records ........... 31 i VIII .01 VIII .02 VIII.03 VII I. 04 VIII .05 VIII.06 VIII .07 VIII.08 VIII. 09 VIIS. 10 VIII. 11 VIII. 12 VIII. 13 VIII. 14 IX.01 IX. 02 IX.03 IX. 04 IX.05 IX.06 X.01 X.02 X.03 X.04 X.05 X.06 X.07 X.08 X1.01 XI. 02 XII.01 XII.02 XlI.03 XII.04 XIII.01 XIII.02 XIII.03 XIII.04 XIII.05 XIV.01 X!V.02 PART VIII APPLICATION FOR PERMIT 31 Permit ................. Application for Permit ........... 32 Investigation ................ 32 Approval of Permit ............. 32 Provisional Permit ............. 32 Temporary Permi~ ........... 32 Issuance of Permits ............. 33 Additional Approvals ............ 33 Term .................... 34 Renewal ................... 34 Determination ........... , .... 34 · 34 Fees ................ · · · Transfer for Permit ............. 35 Effective Date of Permit .......... 35 PART IX DENIAL Denial of Application ............ 35 Grounds for Denial ............. 35 Transmittal of Decision .......... 36 Appeal to City Manager ........... 36 Hearing on Appeal .............. 36 Disposition of Appeal · · · ......... 36 PART X REMEDIAL ACTION Grounds for Remedial Action ......... 36 Notice of Noncompliance ........... 37 No~ice of Hearing ............ - - . 37 Suspension Prior to Hearing ......... 37 Remedial Action ............... 38 Transmittal of Decision ........... 38 Authority after Suspension, Revocation, or Expiration ............... 38 Return of Permit .............. 38 PART XI HEARING PROCEDURE Hearing Rules ................ 39 Hearing Notices ............... 39 PART Eh~ORCEMENT Criminal Penalties ............. 39 Civil Penalties ............... 39 Civil Action for Retaliation ........ 40 Remedies not Exclusive ........... 40 PART XIII MISCELLA~N~OUS Disclaimer of Liability ........... 40 Guideline~ ................. 41 Duties are Discretionary .......... 41 Conflict with Other Laws .......... 41 Severability ................ 42 PART XIV COMPLIANCE SCHEDULE Effective Date ............... 42 Ti=e Table for Initial Compliamce ...... 42 ii RJL:JRG:lr 4/7/83 MODEL ORDINANCE May 5, 1983 RECITATIONS: WHEtLEAS, a.number of facilities in the city* store hazardous materials in the normal course of conducting their opera~ions; and %~EREAS, the public health, safety, and welfare of the citizens of the cit____Zv* may be endangered by the improper storage of such hazardous materials; and ~EREAS, ic is necessary for protection of all citizens thac the storage of hazardous materials be regulated; and WHEREAS, (EIR clearance). NOW, THEREFORE, BE IT ORDAINED · CHAPTER HAZARDOUS MATERIALS STORAGE PERMIT PART I GENERAL PROVISIONS 1.01 Puroose. The purpose of this chapter is the protection of health, life, resources, and property through prevention and control of unauthorized discharges of hazardous materials. 1.02 General Obligation - Safety and Care. A. No person, firm or corporation shall cause, suffer, or permit the storage of hazardous materials: 1. In a manner which violates a provision of this chapter or any other local, federal, or state statute, code, rule, or regulation relating to hazardous materials;- or 2. In a manner which causes an unauthorized discharge of hazardous materials or poses a significant riskof such unauthorized discharge. B. City* shall have discretion to exempt an applicant from any specific requirement of this Chapter, other than the requirement citM sh~ll mean the local entity enacting the model ordinance. appropriate local officer 1042A 0084B -1- RJL:JRG: Ir a/7/83 1'.03 l .04 ** appropriate local officer 1042A 0054B for secondary containment in underground storage facilities, except as provided in Section III.02.C.4, or to require applicant to meet additional or modified requirements, where such'actto~ would be appropriate and consistent with achieving the general obligation of this Chapter for protecting public health, safety, and welfare. Specific Obligation. A. Any person, firm, or corporation which stores any material regulated by Section II.01 which is not excluded by Section II.02 shall obtain and keep currant a Hazardous Materials Storage PermiT. B. All such hazardous materials shall be contained in conformity with Part III of this Chapter. C. The storage of such hazardous materials shall be in conformance with the approved Hazardous Materials Management Plan. Definitions. Unless otherwise expressly stated, whenever used in This Chap- ter, the following terms shall have the meanings set forth below: A. Abandoned, when referring to a storage facility, means out of service and not safeguarded in compliance with this C~pter. B. Facilit~ means a building or buildings, appurtenant struc- tures, and surrounding land area used by a single business entity at a single location or site. C. Hazard class means Explosives A, Explosives B, Explosives C, Blasting agents, Flammable liquids, Combustible liquids, Flammable solids, Oxidizers, Organic peroxides, Corrosive materials, Flamm- able gases, Nonflammable gases, Poisons A, Poisons ~, Irritating materials, Etiologic agents, Radioactive materials, Other Regulated Materials (ORR) A, B, C, D and E. For purposes of this Chapter, the U.S. Department of Transportation (DOT) definitions in 49 CFR Part 173 as amended shall be utilized; however, whenever the definitions in 49 CFR 173 refer to transportation or hazards associated with transportation, they shall be deemed to refer To storage or other regulated activity under this Chapter. O. Hazardous material means any material which is subject ~o regulation pursuant to Part II of this Chapter. A mixture shall be city sha~l mean the local entity enacting the model ordinance. -2- RJL:JRG:lr 4/7/83 deemed to be a hazardous material if it either is a waste and con- tains any material regulated pursuant to Part II of this Chapter, or is a nonwaste and contains one percent (1%) by volume or more of any material regulated pursuant to Part II of this Chapter. E. Officer means the employee assigned by city* to administer this Chapter or any designee of such employee. F. Permit means any Hazardous Materials Storage Permit issued pursuant to this Chapter, as well as any additional approvals thereto. G. Permit quantity limit means the maximum amount of hazardous material that can be stored in a storage f~cility. Separate permit quantity limits will be set for each storage facility for which a permit is obtained in accordance with the requirements of this Chapter. H. Permittee means any person, firm, or corporation to whom a permit is issued pursuan[ to this Chap~ar and any authorized repra- sentative~ agent or designee of such person, firm, or corporation. I. Pipes means pipeline systems which are used in connection with the storage of hazardous materials exclusively within the confines of' a facility and which are not intended to transport hazardous' materials in interstate or intrastate commerce or to transfer hazardous materials in bulk to or from a marine vessel. J. Primary containment means the first level of containment, i.e. the inside portion of that container which comes into {mmedlate contact on its inner surface with the hazardous material being contained. K. Product-ti~ht means impervious to The hazardous material which is contained, or is to be contained, so as to prevent the seepage of the hazardous material from the primary containment. To be product-tight, the container shall be made of a material that is not subject to physical or chemical deterioration by the hazardous material being contained. L. Secondary containment means the level of containment external to and separate from the primary containment. M. Sin~le-walled means construction with walls made of but one city shall mean the local entity enacting the model ordinance. ** appropriate local officer 1042A 0084B -3- RJL:JRG:lr 4/7/83 thickness of material. Laminated, coated, or clad materials shall be considered as single-walled. N. Storage facilttymeans any one or combination of tanks, sumps, wet floors, waste-treatment fa¢tlitles, pipes, vaults or other portabls or fixed containers, used, or designed to he used, for the storage of hazardous materials at a facility° O. Sum~ means a pit or well in which liquids collect. ?. Unauthorized discharge means any release or emission of any hazardous material which does not conform to the provisions of this Ckapter, unless ~uch release is in ~ccordance with the release regulations of the BayArea Air Quality Managemen~ District and California Air Resources Board, wit~ a Na~ionai Pollutant Discharge Elimination System Permit, with waste discharge requirements estab- lished by the Regional Water Quality Control ~oard pursuant to the Porter Cologne Water Quali~y Act, or with local sewer pretreatment requirements for Publicly Owned Treatment Works. (See footnote.) Q. Wet floor means a floor which is used ~o routinely collect, contain or maintain standing liquids or to transmit standing li- quids on a more or less continuous basis. 1.05 Professional Assistance for City Determinations Whenever the approval or satisfaction of city* may be required in this Chapter for a design, monitoring, testing or other technical submittal by an applicant or permittee, citz* may, in its discretion, require such applicant or permittee, at such applicant's or permi=tee's sole cost and expense, to retain a suitably qualified independent engineer, or chemist, or other appropriate professional consultant, acceptable to ci__~*, for the purpose of evaluating and rendering a professional opinion respecting the adequacy of such submittal to achieve the purposes of this Chapter. Cit~* shall be entitled to rely on such evaluation and/or opinion of such engineer, chemist or professional consultant in making the relevant determinations provided for in this Chapter. Foo=note: Con=rol!ing agencies =ay differ for different local Jurisdictions. * ci~ shall mean the local entity enacting ~ha mode% ordinance. *~ appropriate local officer 1042A -4- 0084B RJL:JRG:lr 4/7/83 II.01 following: PART II MATERIALS REGULATED Materials Regulated. The materials regulated by this Chapter, shall consist of the A. Any material listed as a hazardous and/ar extremely haz- ardous material or hazardous and/or extremely hazardous waste in Sections 66680 and 66685 of Title 22 of the California Administrative Code, as amended, whether such material is stored or handled in waste or nonwaste form; or B. Any material which is listed on the list of Environmental Pro~ection Agency (EPA) pollutants, 40 Code of Federal Regula- tions, Section 401.15, as amended; or C. Any material which is classified by the National Fire Protection Association (NFPA) as either a flammable liquid, a Class II combustible liquiR or a Class IIIA combuagible liquid; or D. Any material which is listed by the Director of the Departmen~ of Industrial Relations in Title 8, California Administrative Coda §339, as amended, excluding all footnotes thereto and subject to the exclusions specified in this subsection. Such exclusions shall apply only to materials which are not otherwise regulated pursuant to this Section II.01. These ex'olusions shall be as follows: 1. Materials recognized in the official United States Pharmacopoeia, official Homoeopa~hic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them if such material~ are intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; hormones; enzymes; and aflatoxins. 2. Aluminum salts; Asphalt fumes; Atrazine; Benomyl; Bis (dimethylthtocarbamoyl) disulfide; Boron oxide; 4-tert-Butyl-2-chlorophenyl-methyI * citZ shall mean [he local entity enacting the model ordinance. ** appropriate local officer 1042A -5- 0084B RJL:JRG:lr a/7/83 methytphosphoramidate; Camphor; Carbon black; 2-Chloro-6 (trichloromethyl) pyridine; Clopidol; Coal tar pitch volatiles; Cotton dust, Diben~oyl peroxide (Benzoyl peroxide); Dicyclopentadienyl iron; 3,5-Dinitro-o-toluamide; 2,6-DJ-left-butyl-p-cresol; Ferbam; Fumaric acid; Glass, fibrous or dust; Graphite, Helium; Iron oxide; Iron salts; Magnesium Oxide; Mica; Mineral wool fiber; Oil mist; Phenothiazine; Phenyl ether; Phenyl ether-diphenyl (eutectic ~ixture), vapor; Phthalic anhydride; m-Phthalodinitri!e; Poyltetrasluoreoethylene Decomposition products; Rhodium salts; Ronnel; Rosin core solder; Rotenone, commercial; Silica, Soapstone, Talc; Tantalum oxide; Terphenyls; and 4,4'-Thiobis (6-left-butyl-m-cresol) E. Any material which has been determined to be hazardous based upon any appraisal or assessment by or on behalf of the party storing this material in compliance with the requirements of the EPA or the California Department of Health Services, or which should have been, but was not, determined to be hazardous due to the deliberate failure of the party storing the material to comply with the requirements of the EPA and/or the Department of Health Services; or F. Any material which has been determined by the party stor- ing it, through testing or other objective means, to be likely - to create a significant potential or actual hazard to public heal~h, safety or welfare. This subsection shall not establish a requirement to tes~ for the purposes of ~his Chapter. II.02 Exclusions. This Chapter does not apply to the following: A. Certain Elemental Metals. The following elemental metals included within the purview of Section II.O1 shall not be considered hazardous materials for pur- poses of this Chapter unless they are stored in & friable, powdered or finely divided state: Aluminum, Ber~.lliu~, Cadmium, Chromium, * ~ shal~mean the local entity enacting the model ordinance. ** appropriate local officer 1042A -6- 0084B RJL :JRG: Ir ~I7/83 Copper, Lead, Manganese, Molybdenum, Nickel, Rhodium, Silver, Tellurium, Tin, and Zinc. Furthermore, Tantalum, Titanium, Tungsten, and Uranium shall be excluded from regulation under this Chapter. B. Retail Products. Hazardous materials when contained solely in consumer products packaged for distribution to, and use by, the general public or commercial products used at the facility solely for janitorial or minor maintenance purposes such as paint thinner or wax strippers. C. Feed. Hazardous materials when contained in a substance intended for use as animal feed. D. Work Station. Hazardous materials located at a worR station in a quantity reasonably required for use as determined by city.* under the circumstances. E. Exemption. The city* shall exempt any material from the requirements of this Chapter where it-has been demonstrated to the satisfaction of city* tha~ the material in the quantity and/or solution stored does not present a significant actual or-potential' hazard to the public health, safety or welfare. PART.III CONTAINMENT STANDARDS III.01 Containment of Razardous Materials. No person, firm or corporation shall store any hazardous materials regulated by this Chapter until a permit or approval has been issued pursuant to this Chapter. No permi~ or approval shall be granted pursuant to this Chapter unless permit applicant demonstrates to the satisfaction of cit%*, by the submission of appropriata plans and other information, that the design and construction of the storage facility will result in a suitable manner of storage for the hazardous material or materials to be con:aimed therein. All installation, construction, repair or modification, clo- sure, and removal shall be to the satisfaction of city~. City* shall * city sha~ll mean the local entity enacting the model ordinance. *~ appropriate local officer 1042A -7- 0084B RJL:JRG: Ir 4/7/83 have the discretion to exempt an applicant from any specific requirement, other than the requirement of secondary containment for underground storage facilities, except as provided in Section III.02.C.4, or to impose reasonable additional or different requirements in order to better secure the purpose and general obligation of this Chapter for protection of public health, safety, and welfare. The guidelines approved pursuant to Section XIII.02 shall serve as an interpretation of the provisions of this Part addressed in such guidelines. III.02 New Storage Facilities. A. No person, firm or corporation shall construct or install any new storage facility until a permit or approval has been issued pursuant to this Chapter. B. Monttorin~ Ca~ability. All new storage facilities intended for the storage of hazard- ous materials which are liquida or solids at standard temperature and pressure (STP) shall be designed and constructed with a monitor- ing system capable of detecting that the hazardous material stored in the primary containment, has entered ~he secondary containment. (See Footnote.) Visual inspection of the primary containment is the preferred method; however, other means of monitoring may be required by city*. Where secondary containmen~ may be subject to the intrusion of water, a means of monitoring for such water shall be provided. Whenever monitoring devices are provided, they shall, where applicable, be connected to attention-getting visual and/or audible alarms. C. Containment Requirements. Pri~:ary and secondary levels of containment shall be required for all new s~orage facilities intended for the storage of hazard- ous materials which are liquids or solids at standard ~empera~ure and pressure (STP) unless exempted by cit~*. (See Footnote.) Footnote: It is anticipated that a follow-up task force will develop construction and monitoring sgandarda fo: gases. * citZ shall mean the local entity enacting the model ordinance. ** appropriate local officer 1042A -8- 0084B RJL:JRG: ir ~.1715~ 1. All primary containment shall be product-tight. 2. Secondary containment: a. All secondary containment shall be constructed of materials of sufficient thickness, density, and composi- tion so as not to be structurally weakened as a result of contact with the discharged hazardous zaterials and so as to be capable of containing hazardous materials discharged from a primary container for a period of time equal to or longer than the maximum anticipated time sufficient to allow recovery of the discharged hazardous material. b. In the case of an installation with one primary container~ the secondary containment shall be large enough to contain at'least 110% of the volume of the primary container. c. In the case of a storage facility with multiple primary containers, the secondary container shall be large enough to contain 150% of the volume of the largest primary container placed in it, or 10% of the aggregate internal volume of all primary containers in the storage facility, whichever is greater. d. If the storage facility is open to rainfall, then the secondary containment must be able to additionally acco~odate the volume of a twenty-four (24) hour rain- fall as determined by a twenty-five (25) year storm history. ~ 3. Laminated, coated, or clad materials shall be considered single-walled and shall not be construed to fulfill the requirements of both primary and secondary containment. &. Variance. a. A variance from the requirement for secondary containment for an underground storage facility may be granted upon a written finding by th~ officer issuing the * city shall mean the local entity, enacting the model ordinance. ~* appFopria~e local officer 1042A -9- 0084~ RJL:JRG:lr ' ~17183 permit, which has been reviewed and approved by the CitZ Council*, that based on the special circumstances: i. The re'quirement of secondary containment creates an unusual and particular hardship; and ii. An equivalent degree of protection is provided by the proposed alternative; and iii. The proposed alternative has been appropriately so certified in accordance with Section 1.05, or has been specified as potentially appropriate for a variance in the guidelines approved pursuant to Section XIII.02. b. The City Council* shall consider the. variance, at a public meeting, at which oral or written presentation on the matter may be made. A notice which includes a statement that a variance from secondary containment for hazardous materials will be considered, and which specifies the address o~ the facility seeking the variance, and the time and place of the meeting shall be given in the following manner: t. The City Clerk* shall cause a copy of the no,ice to be published once in a newspaper of general circulation in the Citz*, not less then ten (10) days prior to the meeting; and ii. The City Clerk* shall cause a copy of the notice to be mailed to at least ten (10) days prior to the meeting to any party who files a written request with the City Clerk*, for mailed notice of meetings at which such variance is to be considered. Such written request for notice shall be valid for one year from the date on which it is filed unless a renewal request ia filed. Renewal request for such mailed notices shall be filed on or before April 1st of each year. D. Overfill Protection. Means of overfill' protection may be required for any primary container. This may be an overfill prevention device ~nd/or an attention-getting high level alarm. ci.t~ shall mean the local entity enacting the model ordinance. appropriate local officer 1042A -10- 0084B RJL:JRG: Ir 417183 E. Seoaration of Materials. Materials that in combination may cause a fire or explosion, or the production of a flammable, toxic, or poisonous gas, or the deterioration of a primary or secondary container shall be separa- ted in both the primary and secondary containment so as to avoid intermixing. F. DrainaBe syste~. Drainage of precipitation from within a storage facility comtaining hazardous materials which are liquids or solids at STP shall be controlled in a manner approved by the city* so as to pre- vent hazardous materials from being discharged. No drainage system will be approved unless the flow of the drain can be controlled. Ill.03 Existin~ Storage Facilities. Any storage facility in existence aa of the effective date of this Chapter, or any storage facility for which a building permit was is- sued prior to the effective date of this Chapter, which does not meet the standards of Section III.02, may be permitted pursuant to this Chapter as long as it is providing suitable storage for hazardous materials. In addition, storage facilities which contain hazardous materials which are liquids or solids at standard temperature and pressure (STP) must be monitored in accordance with a plan approved by city* as set forth herein. (See footnote.) A. A monitoring plan for each such storage facility containing hazardous materials which are liquids or solids at STP, shall be submitted to cit~* as par~ of the Hazardous Materials Management Plan. B. Monitoring under such plan shall include visual inspection of the primary containment wherever practical; however, if the visual inspectiom ia not practical, an alternative method of monitoring each storage facility on a semiannual or more frequent basis may be approved by citM*. C. Alternative method(s) of monitoring may include but are hOC Footnote: It is anticipated thac a follow-up task force will develop construction and monitoring standards for gases. city sha~l mean the local entity enacting the model ordinance. appropriate local officer 1042A -11- 0084B RJL:JRG:lr 417183 limited to: pressure testing of piping systems, groundwater moni- toring well(s) which are downgradient and adjacent' to the storage facility; vapor analysia within the well(s) where appropriate; and analysis of the soil boring(s) at the time of initial installation of the well(s). The number of well(s), depth of well(s), and sam- pling frequency shall be approved by the ci__~i-'*. D. Such monitoring devices and methods, as approved by cttM*, shall be installed and operating within six (6) months of the issu- ance of a provisional permit in accordance with Section VIII.05 and Section XIV.O2.B.[. Citx* may grant an extensicn of this compli- ance date; however, such extension shall not exceed one (1) addi- tional year. The full term permit may be issued when compliance with this subsection has been achieved. E. The continued use of, and permit approval for, existing stor- age facilities is subject to review and modification or termination by cit_.__~W* whenever there has been any unauthorized discharge. It shall also b~ reviewed by the citM* each time the permit is renewed. In determining whether continued storage in such storage facility is suitable, citM* shall consider the age of the storage facility, the methods of containment, the methods of monitoring, the feasibility of the required retrofit, the concentration of the hazardous materials contained, the severity of potential unauthorized discharge, and the suitability of other long term preventive measures which meet the intent of this Chapter. F. Existing storage facilities which are not approved in accord- ance with this Section must be upgraded to comply with this Chapter or be closed in accordance with Subsection III.04 below within one (1) year of a decision not to issue a full term per=it. An extension of time for compliance with this subsection, not to exceed one (1) additional year, may be granted by city*. III.04 Out of Service Storage Facilities. A. No storage facility shall be abandoned. ' B. Storage facilities which are ~emporarily out of service, and are intended to be returned to use, must continue to be monitored and inspected. * citZ shal~mean the local entity enacting the model ordinance. **-appropriate local officer 1042A -12- Od84B RJL:JRG: lr ~,/7/8.3 C. Any storage facility which is not being monitored and inspec- ted in accordance with this chapter must be closed or removed in a manner approved by ci~* in accordance with Section VIII.08. D. Any person, firm or corporation having an interest, including a leasehold interest, in real property and having reason to believe that an abandoned storage facility is located upon such property shall make a reasonable effort to locate such storage facility within six~(6) months of the effective da~e of this Chapter. E. ~enever an abandoned storage facility is located, a plan for the closing or removing or the upgrading and permitting of such storage facility shall be filed within ninety (90) days of its discovery. A closure plan shall conform to the standards specified in Section VIII.08. III.05 Monitorins. A. Monitoring Methods. Monitoring methcds shall include at least one system for detecting leakage from :he primary container. A mon- itoring system capable of detecting that the hazardous material stored in the primary containment has entered the secondary containmen: shall be provided. Visual inspection of the primary containment is the preferred method; however, other means of monitoring may be required by citM*. Where secondary containment may be subject to the intrusion of water, a means of monitoring for such water shall be provided. Whenever monitoring devices are provided, they shall, where applicable, be connected to attention-getting visual and/or audible alarms. B. Monitoring~ Testin~ and Inspection. Every permittee under this Chapter shall provide testing, monitoring (if applicable), and inspections in compliance with the Hazardous Materials Management Plan and shall maintain records adequate to demonstrate compliance therewith. III.06 Maintenance~ Repair or Replacement. A. Permit:ee will carry ouc maintenance, ordinary upkeep, and minor repairs in a careful and safe manner. No permit or other approval will be required for such maintenance and upkeep. * titZ shall mean the local entity enacting the model ordinanc, e. ** appropriate local officer lO&2A -13- 005~3 RJL :JRG: Ir 4/7/83 B. Any substantial modification or repair of a storage facility other than minor repairs or emergency repairs shall be in accord- ance with plans to be submitted ¢o the city* and approved in accord- ance with Section VIII.08 prior to the initiation of such work. C. Permittee may make emergency repairs to a storage facility in advance of seeking an additional permit approval whenever an imme- diate repair is required to prevent or contain an unauthorized dis- charge or to protect the integrity of the containment. However, within five (5) working days after such emergency repairs have been started, permittee shall seek approval pursuant to Section VIZIo08 by submitting drawings or other information adequate to describe the repairs to city*. D. Replacement of any storage facility for hazardous materials, which are liquids or solids at STP, must be in accordance with the new installation standards of Section III.02. III.07 Handling, A. Dispensing and mixing of hazardous materials must not be done in such a manner as to substantially increase the risk of an unauthorized discharge. B. When hazardous materials are moved into or ou= of a storage facility, they shall remain in the travel path only for the time reasonably necessary to transport the hazardous material and such movement shall be in a manner which will not resuI= in an unauthor- ized'discharge. III.08 Secured Facilities. Access to the storage facili=ies shall be secured by means of fence~ and/or locks. The access to the storage facilities shall be kep= securely locked when unattended. III.09 Emergency Equipment. Emergency equipment shall be provided which is reasonable and appropriate for potential emergencies presented by the stored hazardous materials. Such equipment shall be regularly tested and adequately maintained. III.10 Postin~ of Emergency Procedures. Simplified emergency procedures shall be posted conspicuously in locations where hazardous materials are stored. * city shal1 mean the local entity enacting the model ordinance. ** a-~opriate local officer 1042A -14- 0084B RJL:JRG:lr ~17/83 IV .01 PART IV HAZARDOUS MATERIALS ~NAGEME~ PLAN Hazardous Materials Manasement Plan. Each applicant for a permit pursuant to this Chapter shall file a written plan, for ci~'s* approval, to be kno'~a as a Hazardous Materials Management Plan (~), which shall demonstrate the safe storage and handling of hazardous materials. The HMMP may be amended at any time with the consent of city*. The HM~P shall be a public record except as otherwise specified. Approval of the HMMP shall mean ~hat the HMMP has provided adequate information for the purposes of evaluating the permit approval. Such approval shall not be understood to mean tha~ the citx* has made an independent determination of the adequacy of that which is described in the IV.02 S:andard Form H:~MP. The s~andard form Hazardous Materials Managemen~ Plan mus~ be submitted unless the facility qualifies as a minimal s~orage site under Section IV.03 below. The HMMP shall include the following: A. Facility Description. 1. General Information~ The HM}~ shall contain the name and address of the facility and business phone number of applicant, the name and titles and emergency phone numbers of the primary response person and an alternate, the number of employees, number of shifts, hours of opera,ion, and principal business activity. 2. General FacilitM Description. The HMMP shall contain a map draw~ at a l~gible scale and im a format and detail determined by city shall show the location of all buildings and s~ructures, chemical loading areas, parking lots, internal roads, storm and sewer drains, and shall specify the uses of adjacent properties. The city* may also require information as to the location of wells, flood plains, earthquake faults, * city shall mean the local entity enacting ~he model ordinance. ** appropriate local officer t042A =15- 00848 RJL :JRG: Ir A/7/83 surface water bodies, and/or general land uses (schools, hospitals, institutions, residential areas) within one mile of the facility boundaries. 3. Facility Storage Map. a. The HMM~ shall contain a Facility Storage Map at a legible scale for licensing and enforcement purposes. The information in this Section is provided for purposes of ensuring the suitable and secure storage of hazardous materials and for the protection and safety of emergency response personnel of city*. Cit]{* shall take reasonable precautions to ensure the confidentiality of the information provided pursuant to this subsection. The Facilities Storage }~ap shall indicate the location of each hazardous materials storage facility, including all interior, exterior, and underground storage facilities, and access to such storage facilities. In addition, the map shall indicate the location of emergency equipment related to each storage facility, and the general purpose of the other areas within each facility. For 'each storage facility, the map shall contain information as prescribed below; except that where the hazardous material being stored is a trade secret, it . shall be identified in a coded manner (together with its key) and not in a manner which would reveal trade secret information: (t) a floor plan =o scale and the permit quantity limit; (ii) for each nonwasge hazardous material which is stored in a quantity greater than the quanti~ies specified in Section V.02 A, the general chemical name, common/trade name, major constituents for mixtures, United Mattons (UN) or North America (NA) number, if available, and physical state. For each waste hazardous * citZ sha~l mean the local entity enacting the model ordinance. *-~ appropriate local officer 1042A -16- 0084B RJL:JRG: ir ! · o material stored in any quantity within the storage facility, the presence of wastes shall also be indicated; (iii) for all hazardous materials, including wastes, stored in each storage facility, the hazard class or classes and the quantity range for each such class, aggregated within each storage facility, in the following ranges: Quantity Range ~umber 1 Ranse Amounts Up to and including 500 pounds for solids, 55 gallons for liquids, and 200 cubic feet at STP for com- pressed gases; Between 500 and 5,000 pounds for solids, 55 and 550 gallons for li- quids, and 200 amd 2,000 cubic feet at STP for compressed gases; Between 5,000 and 25,000 pounds for solids, 550 to 2,750 gallons for liquids, and 2,000 to 10,000 cubic feet at STP for compressed gases; Between 25,000 and 50,000 pounds for solids, 2,750 and 5.500 gal- lons for liquids, and 10,000 and 20,000 cubic feet at STP for compressed gases; More than 50,000 pounds for solids, 5,500 gallons for liquids, and 20,000 cubic feet at STP for compressed gases; (iv) for materials not regulated under this Chapter, but regulated under the Uniform Fire Code, such as radioactives or cryogens, or for materials stored in storage facilities exempted by Sections XIII.04.A and XIII.O4.B, the city* may require that the hazard class or classes and the quanti~y range of each such hazard class, using the quantity ranges listed in subsection (iii) above, be provided; (v) For tanks, the capacity limit of each tank, and the hazardous material contained in each tank by general Chemical name, * city shall mean the local entity enacting the model ordinanc.e. ** appropriate local officer IO&2A -17- 008aB RJL :JRG: lr 4/7/83 common/~rade name, major constituents for mixtures, United Nations (UN) or North America (NA) number, if available, and physical state. b. Due to the threat to the security of the facility posed by the disclosure of the information in the Facility Storage Map, this information, shall be maintained by cit~* for law enforcement purposes only and shall no= be made public. Public disclosure of this information could endanger ~he security of the facility or present a clear danger to public health and safety. City* shal~ not disclose this information so the public without the consent of the permi=tee or permi~ applican~ unless ordered to do so by a court of competent Jurisdiction. Permittee or permit applicant shall be deemed a real party in interest in any such acticn. Prompt notice of a lawsuit to compe~ disclosure shall be given by city* to permittee or permit applicant. However, city* shall be under no du~y to prevent disclosures where there has been any unauthorized discharge of hazardous materials stored in storage facility(s) shown on such map or where such disclosure arises out of any official emergency response relating to the storage facility(s). c. The Facility Storage Map shall be updated annually or whenever an additional approval is required for the facility or whenever the Hazardous Materials Inventory Statement is required to be amended pursuant to Sectto~ V.01. B. Hazardous Materials Inventory Statement. A Hazardous Materials Inventory Statement shall be filed in accordance with Part V of this Chapter. C. Separation of Materials. The HMMP shall contain a description ~f the methods to be utilized to ensure separation and protection of stored hazard- ous materials from factors which may cause a fire or explosion, * city shal~ mean the local entity enacting the model ordinance. ** appropriate local officer 1042A -18- 0084B RJL :JRG: Ir ~/7/8] or the production of a flammable, to×lc, or poisonous gas, or the deterioration of the primary or secondary containment. D. Monitoring Program. The HMM~ shall contain a description of the location, type, manufacturer specifications (if applicable), and suitability of monitoring methods to be used in each storage facility storing hazardous materials which are liquids or solids at STP. It shall also specify the frequency of inspections of storage facilities which will be cenducted by the permittee. E. Recordkeeping Form~. The HMMP shall'contain an inspection check sheet or log designed to be used in conjunction with routine in- spections. The check sheet or log shall provide for the recording of :he date and time of inspection and, for moni- toring activity, the date and time of any corrective action taken, the name of the inspector, and the countersignature of the designated safety manager for the facility or the responsible official as designated in the H>fMP. F. Emergency Equipment. The H~MP shall describe emergency equipment availability, testing, and maintenance. G. Variation in Information. 1. Additional information may be required for the ~}~? where such information is reasonably necessary to meet the intent of this Chapter. 2. Requirements for information in the H~.MMP._ may be waived where such information is not reasonably necessary to meet the intent of this Chapter. 3. Whenever permittee has submitted a plan which includes substantially the same information as is required for any component(s) of the HMMP to any other public agency regulating hazardous materials, such plan may be submitted to ci~x* in lieu of such component(s). The City may give deference to any approval of such plan by the other public agency. * ci~ shall mean the local entity enacting the model ordinance. ~-~ appropriate local officer 1042A -19- 0084B RJL:JRG:lr 4/7/83 IV.03 ** app~'opriate local officer 1042A 0084B Short Form HMMP - Minimal Storage Site. A. A facility shall qualify as a minimal storage site if the quantity of each hazardous material stored in one or more storage facilities in an aggregate quantity for the facility is 500 pounds or less for solids, 55 gallons or less for liquids, or 200 cubic fee~ or less at STP for compressed gases. B. The applicant for a permit for a facility Which qualifies as a minimal storage site may opt to file the short form Hazardous Material Management Plan. Such plan shall include the following components: 1. General application information; 2. A simple line drawing of the facility showing the loca- tion of the storage facilities and indicating the hazard class or classes and physical state of the hazardous materials being stored and whether any of the material is a waste; 3. The short form H>~ shall also include a carcinogen identification form which shall indicate the storage of any quantit~ of any carcinogen listed in Sections 5208-5215 and Section 5219 of Title 8 of the California Administrative Code, as amended. This provision will be satisfied by the submittal to City* of a copy of the Carcinogen Registration form submitted to the California Departmen~ of Industrial Relations in accordance with the above ctte~ sections of Title 8 of the California Administrative Code, as amended. 4. Information describing that the hazardous materials will be stored ia a suitable manner and will be appropriately con~ained, separated and monitored; 5. Description of emergency equipment to be maintained; 6. Assurance that the disposal of any hazardous materials will be in an appropriate manner. C. Where a claim for trade secret protection pursuang to Section V.04 is made for any carcinogen listed in Sections 5208-5215 and Section 5219 of Title 8 of the California Administrative Code, as amended, pursuant to subsection B.3 above, the Carcinogen Identification form t~ be publicly disclosed shall identify all city shal% mean the local entity enacting the model ordinance. -20- RJL:JRG:lr 4/7/83 carcinogens not claimed to be trade secrets and it shall indicate the number of carcinogens claimed to be trade secrets. PART V HAZARDOUS MATERIALS INVEh~ORY V.01 Hazardous Materials Inventory Statement. A Hazardous Materials Inventory Statement (HM!S) shall be filed with city* in accordance with this Part. Any person, firm, or corporation which stores any hazardous material in an amount which is equal to or greater than the quantities specified in Sec- tion V.02.A is required to file an HMIS. Such person, firm or cor- poration shall amend the HMIS within thirty (30) days of the stor- age of any hazardous material not listed thereon but required to be listed by Section V.02.A, or of an increase above the quantity range listed in accordance with Section V.02.C. or required to be identified in accordance with Section V.02.D. V.02 Information Required. A. Information shall be included in the HMIS for each hazardous material stored in a facility (aggregated over all such material stored in one or more storage facilities) where the aggregate quan- tity throughout the facility is greater than five hundred (500) pounds in weight for solids, greater than fifty-five (55) gallons for liquids, or greater than two hundred (200) cubic feet at standard temperature and pressure (STP) for compressed sasses. B. The information in the HMIS shall include either: 1. For non-wastes: The general chemical name, common/trade name, major constituents for mixtures, the manufacturer, Uni=ed Nations (UN) or North America (NA) number, if available, and the hazard class or classes and the Material Safety Data Sheet (MSDS) or equivalent information as required by city*. 2. For wastes: The Department of Health Services manifest for wastes or equivalent information, and the hazard class or classes. C. In addition, the HMtS shall state the aggregate quan=i~y range stored at the facility of each hazardous material listed in terms * ~ sha~l mean the local entity enacting the model ordinance. ** appropriate local officer 1042A -2t- 0034B RJL:JRG:lr 417183 of the quantity ranges stated in Section IV.02.A.3a (iii) [2-5] above. D. The HMIS shall also include a carcinogen identification form which shall indicate the storage of any quantity of any carcinogen listed in Sections 5208-5215 and Section 5219 of Title 8 of the California Administrative Code, as amended. This provision will be satisfied by the submittal to Ciq. z* of a copy of the Carcinogen Registration form submitted to the California Department of Industrial Relations in accordance with the above cited sections of Title 8 of ~he California Administrative Code, as amended. E. Where a claim for trade secret protection is made for any hazardous material pursuant to Section V.04, the HM!S to be publicly disclosed shall indicate the number of materials claimed to be trade secrets and the aggregate quantity range stored at the facility, for each such hazardous material stated in terms of the quantity ranges set forth in IV.02.A.3a (iii) [2-5]. Where a claim for trade secret protection is made for any carcinogen identified pursuant to subsection D. above, the Carcinoge~ Registration form to be publicly disclosed shall indicate all carcinogens not claimed to be trade secrets and it shall indicate the number of carcinogens claimed to be trade secrets. V.03 Public Records. The HM~IS is a public record except that no trade secre: shall be disclosed. Any request for a public record hereunder shall be submitted in writing to the city* officer responsible for administering this Chapter. V.04 Trade Secrets. A. Permi~tee or permit applicant may make a claim for the protection of the identity of any hazardous material which is its trade secret by filing a declaration under penalty of perjury on a form provided by citz*, signed by the permittee or permit applicant, supporting the trade secret status, for each such hazardous material asserted to be a trade secret. The name of the,hazardous material shall not be disclosed on said declaration. B. The exact name of the trade secret malarial, its quantity range by storage facility, and all so,her information required under * cit~ shal~ mean the local entity enacting the model ordinance. ** appropriate local officer 1042A -22- 0084B RJL:JRG: Ir 417183 Section V.02.B must, subject to the approval of city*, be placed in a double-keyed lockbox and maintained in at least two locations at the' facility. One key shall be provided to city* at the time the permit becomes effective. The other key shall be maintained on site aC all times, and readily accessible to permittee's designated emergency response person. Such emergency response person shall cooperate with citz* in opening the lockbox at any time city* responds to an emergency or unauthorized discharge on the site involving the storage facilit7 in which the trade secret material is contained. In the event that the permittee's designated emergency response person is not immediately available to assist city* emergency response personnel to open the lockbox, such' city* personnel are authorized to break the lockbox. C. In addition to providing the lockboxes, the permittee or permit applicant shall provide information to the city* under one of the following alternatives: 1. Alternative One. In lieu of submitting the exact chemical name of said trade secret material, permittee or permit applicant may submit a description of the hazardous material, including but not limited to, the chemical and physical properties, hazard class, reactivity'characteristics, fire and explosion characteristics, of the trade secret mat'erial, at a level of specificity satisfactory to city*, and on a form provided by city*. The description must include health hazard information including remedies and countermeasures appropriate ,- r emergency response ' and in case of human exposure to the trade secret material'. Such description must be adequate to enable city* to assess the suitability of the proposed containment and the proposed monitoring plan. The description must be certified as accurate, in writing, by a chemist or chemical engineer; or 2. Alternative Two. Instead of submitting the name of the trade secret to city*, the trade secre~ information, together with all submittals pursuant to this Chapter,.may be submitted to an * ctt~ shall mean the local entity enacting the model ordinance. ** appropriate local officer 1042A -23- 0084~ RJL:JRG:lr 4/7/83. independent chemical engineer or equivalent licensed professional, subject to approval by citz*, who shall certify, in w~iting, the suitability of the containment design, the monitoring methods and plans, and the separation of materials, and the accuracy of the facility storage map with regard to the informatin relevant to the trade secret. All such' submittals remain subject to city's* review and approval under this Chapter; or 3. Alternative Three. The trade secret information sought to be protected may be submitted to city* on a separate form or forms, clearly and conspicuously marked or labeled as containing trade secret information, and said form or fcrms must be submitted only to a city* official designated by cit~* to receive trade secret information. If this method of protecting the trade secret information is chosen by permittee or permit applicant, such party shall also submit a waiver, relieving city* of any and all liability resulting from disclosure of the trade secret in violation of this Part. a. The citx* official shall endeavor to protect from disclosure any and all trade secrets which come into the city's* possession pursuant to this subsection. I£ an action is instituted under California Public Records Act for the release of such trade secrets, the permittee or permit applican: shall be deemed a real party in interest in any such action. Notice of a lawsuit to compel discloaure shall be given by city* to permittee or permit applicant promptly upon * receipt of such notice by city The permittee or permit applicant shall have the option to defend citz* in any such action. The permittee or permi~ applicant shall indemnify the cit..y* in any such action. The permittee or permit applicant shall indemnify the city.* for all citz's* attorneys fees, cost~ citM shall mean the local entity enacting the model ordina.nc.e, appropriate local officer 1042A -24- 00gab RJL:JRG:tr and expenses incurred in any proceeding related to this Section, as well as for any judgment imposed pursuant to California Government Code Section 6259. b. Any information reported to the city* officer, under this subsection, which is exempt from disclosure pursuant to this section, shall no: be disclosed to anyone other than as required by law, except an officer or employee of the cit____Zv* in connection with the official duties of such officer or employee under any law for the protection of health, or to contractors with the city* and their employees, if in the opinion of the city* officer such disclosure is necessary and required for the satisfactory performance of a contract for performance of work. c. Any person who by virtue of employmen=, contractual relationship or official position has obtained possession of or has had access to information, the disclosure of which is prohibited by this sec:ion, and who knowing that disclosure of the information is prohibited, intentionally or recklessly discloses the information in any manner to any person not entitled to receive it, or uses the information for his or her own use or advantage, shall be guilty of a misdemeanor. d. Information certified by appropriate officials of the United States, az necessarily kept secret for national defense purposes, shall be accorded the full protections against disclosure as specified by such official or in accordance with the laws of the United States. e. The City Council shall, by resolution, adop:a procedure designed to prevent knowing or negligent disclosure of trade secret information. Such procedure shall identify which officials' shall have access to the information, and the means by which access will be controlled and monitored. Trade secret information shall * city shall mean the 'local entity enacting the model ordinance. *~ appropriate local officer 1042A -25- 008a~ RJL:JRG:lr 4/7/83 VI .01 be maintained in secured facilities which are designed to prevent inadvertent or unauthorized access or disclosure. f. The confidential treatment, pursuant to this subsection, of the identity of such trade secret disclosed to the city* does no~ apply where there has been any unauthorized discharge related ~o such trade secret material which is reportable in compliance with Section VI.01 or where such disclosure arises out of any official emergency response relating to the storage facility(s) involving such trade secret information by public safety personnel of city*. PART VI RESPONSIBILITY Reporting Unauthorized Discharge. A. Liquids and Solids at STP. As soon as any person in charge of a s~orage facility or responsible for emergency response for a facility has knowledge of any confirmed or unconfirmed unauthorized discharge of a hazardous material which is liquid or solid at STP, such person shall take all necessary steps to ensure the discovery and containment and clean up of such discharge and shall notify cit~* of the occurrence as required by this subsection. 1. Confirmed Unauthorized Discharge. a. Recordable Unauthorized Discharge Any re¢ordable unauthorized discharge shall be contained amd safely disposed of in an appropriate manner by permittee and such occurrence and the response thereto shall be recorded in the permittee's monitoring records. A re¢ordable unauthorized di$¢harse ia any unauthorized discharge of a hazardous material which meets all of the following criteria: (i) The discharge i~ from a primary containment to a secondary containmen~ or to a rigid above ground surface covering capable of containing the discharge until cleanup of the hazardous material * city shall mean the local entity enacting the model ordinanc, e. ** appropriate local officer 1042A -26- 0084B RJL:JRG:lr 4/7/83 is completed; and (ii) The permittee is able to adequately clean up the discharge before it escapes from such secondary containment or such above ground surface, but if the cleanup requires more than eight (8) hours, it becomes a reportable discharge in accordance with Section VI.O1.A.lb below; and (iii) There is no increase in the hazard of fire or explosion, nor is there any production of a flammable or poisonous gas, nor is there any deterioration of such secondary containment or such rigid above ground surface. (iv) An otherwise recordable unauthorized discharg~e does not need to be recorded if the discharge~is not the result of the deterioration or failure o£ fha pri=ary container and the quan.ti~y discharged is less than one (1) ounce by weight, and can be cleaned up within fifteen (15) minutes. b. Reportable Unauthorized Discharge. Any unauthorized discharge which is not determined to be recordable under subsection V1.01.A.I,a above, must be reported to city* immediately. The reporting party shall provide information to ci~z* relating to the ability of permittee to contain and dispose of the hazardous material, the estimated time it will take to complete containment and disposal, and the degree of hazard created. Citz* may verify that the hazardous material is being contained and appropriately disposed. CitE*, at any time upom a determination that permittee is not adequately containing and disposing of such hazardous material, shall have the power and authority to undertake and direct an emergency response in'order to protect the public health and/o'r safety. Unconfirmed Unauthorized Discharge. a. Indication of Loss in Inventory Records. * city sh~ll mean the local entity enacting the model ordinance. ** app~opriate local officer 1042A -27- 0084B RJL :JRG: ir ~/7/83 hazardous material shall institute and complete all actions necessary to remedy the effects of any unauthorized discharge, whether sudden or gradual. City* shall undertake actions to remedy the effects of such unauthorized discharge itself, only if it determines that it is reasonably necessary under the circumstances for the city* to do so. The responsible party shall be liable to reimburse city* for-all costs incurred by city* in remedying the effects of such unauthorized discharge, including the costs of fighting fires to the extent allowed by law. This responsibility is not conditioned upon evidence of willfulness or negligence of the party storing the hazardous material(s) in causing or allowing such discharge. Any responsible party who undertakes action to remedy the effects of unauthorized discharge(s) shall not be barred by this Chapter from seeking to recover appropriate costs and expenditures from other responsible parties except as provided by VI.03. VI.03 !ndemnificaton. The permittee shall indemnify, hold harmless and defend thm city* against any claim, cause of action, disability, loss, liability, damage, cost or expense, howsoever arising, which occurs by reason of an unauthorized discharge in connection with permittee's operations under this permit, except as arises from city's* sole willful act or sole activ~ negligence. PART VI! INSPECTIONS AND RECORDS VII.01 lnsoections by Citz*. City* may conduct inspections, at its discretion, for the purpose of ascertaining compliance with this Chapter and causing to be corrected any conditions which would constitute any violation of this Chapter or of any other statute, code, rule or regulation affec=ing =he storage of hazardous materials. Permittees are not required to disclose the identity of hazardous materials protected as trade secrets pursuant to Section V.04 to anyone other than the official designated for That purpose pursuant to Section V.0&.C.3, except in the case of an emergency response or an unauthorized discharge related to the'storage facility in which the trade secret * c£tv shall mean the local entity enacting the model ordinance. ** app~opria=e local officer 1042A -29- OCS~B RJL:JRG:lr 4/7/83 material is contained. Therefore, permittee may put temporary coverings over the labels of trade secret materials during the course of citz* inspections conducted by other than the city official so designated. A. Right of Entry. Whenever necessary'for the purpose of investigating or enforcing the provisions of this Chapter, or whenever any enforcement officer has reasonable cause to believe-that there exists in any structure or upon any premises, any condition which constitutes a violation of this Chapter, said officers may enter such structure or premises at all reasonable times to inspect the same, or to perform any duty imposed upon any of said respective officers by law; provided that if such structure or premises be occupied, the officer shall first present proper credentials and request entry, and further provided, that if such structure or premises is uncccupied, the officer shall first make a reasonable attempt to contact a responsible person from such firm or corporation and request entry, excep~ in emergency circumstances. If such entry is refused, the officer seeking entry shall have recourse to every remedy provided by law to secure entry. B. Inspections by City~ - Discretionary. All inspections specified herein shall be at the discretion of the city* and nothing in this chapter shall be construed as requiring the ci~* to conduct any such inspection nor shall any actual inspection made imply a duty to conduct any other inspection. Furthermore, nothing in this chapter shall be construed to hold the city* or any 9fficer, employee or representative of the city responsible for any damage to persons or property by reason of making an inadequate or negligent inspection or by reason of any failure So make an inspection or retnspection. VII.02 Inspections by Permittee. The permittee shall conduct regular inspections of its own facilities to assure compliance with this chapter an~ shall maintain logs or file reports in accordance with its Hazardous Materials Management Plan. The inspector conducting such inspections shall be qualified to conduct such inspections. * city sha~l mean the local entity enacting the model ordinance. *~, appropriate local officer 1042A -30- 0084B RJL:JRG:lr 4/7/83 material is contained. Therefore, permittee may put temporary coverings over the labels of trade secret materials during the course of cit~* inspections conducted by other than the city official so designated. A. Right of Entr~. Whenever necessary'for the purpose of investigating or enforcing the provisions of this Chapter, or whenever any enforcement officer has reasonable cause to be!ieve~that there exists in any structure or upon any premises, any condition which constitutes a violation of this Chapter, said officers may enter such structure or premises at all reasonable times to inspect the same, or to perform any duty imposed upon any of said respective officers by law; provided that if such structure or premises be occupied, the officer shall first present proper credentials and request entry, and further provided, that if such structure or premises is uncccupied, the officer shall first make a reasonable attempt to contact a responsible person from such firm or corporation and request entry, except in emergency circumstances. If such entry is refused, the officer seeking entry shall have recourse to every remedy provided by law to secure entry. B. Inspections by City* - Discretionar~. All inspections specified herein shall be at the discretion of the city* and nothing in this chapter shall be construed as requiring the cit~* to conduct any such inspection nor shall any actual inspection made imply a duty to conduct any other inspection. Furthermore, nothing in chis chapter shall be construed to hold the city* or any officer, employee or representative of the city responsible for any damage to persons or property by reason of making an inadequate or negligent inspection or by reason of any failure to make an inspection or reinspection. VII.02 Inspections by Permittee. The permittee shall conduct regular inspections of its own facilities to assure compliance with this chapter an~ shall maintain logs or file reports in accordance with its Hazardous Materials Management Plan. The inspector conducting such inspections shall be qualified to conduct such inspections.~ * city shall mean the local entity enacting the model ordinance. *~, appropriate local officer 1042A -30- 0084B RJL:JRG:lr 4~7/83 VII.03 Special Inspections. In addition to the inspections specified above, ci~* may require the periodic employment of special inspectors to conduc~ an audit or assessment of permittee's facility to make a hazardous material safety evaluation and to determine compliance with the provisions of this The special inspector shall be a qualified person or firm who shall demonstrate expertise to the satisfaction of the c.i~*. B. The special inspection report shall include an evaluation of the facilities and recommendations ~:cnsistent with the . provisions of thfs Chapter where appropriate. A copy of the report shall be filed with citl* at the same time that it is submitted to permittee. C. Permittee shall, within thirty (30) days of said report, file with citz* a plan to implement all recommendations, or shall demonstrate to the satisfaction of citM* why such recommendations shall not be implemented° VII.04 Substituted Insoections. An inspection by an employee of any other public agency may be deemed by the city.* as a substitute for any requirement above. VII.05 Maintenance of Records. All records required by this Chapter shall be maintained by the permittee for a period of not less than three (3) years. Said records shall be made available to city* during normal working hours and upon reasonable notice. PART VIII APPLICATION FOR PERMIT VIII.01 Permit. Any person, firm, or corporation which stores any hazardous material shall obtain and keep current a Hazardous Haterials Storage Permit issued pursuant to this Chapter. One such permit shall be issued for a single facility. Additional approvals shell be obtained for any storage facility thereafter connected, installed, constructed, repaired as required by Section Ill.06, substantially modified, replaced, closed, or removed, or for any change or addition in hazardous materials stored, * city s~all mean the local entity enacting the model ordinance. *~ appropriate local officer 1042A -31- 0084~ Chapter. A. RJL:JRG:lr 417183 not in accordance with the prior approval. Notwithstanding the above, permittee shall have thirty (30) days to apply for an additional approval for the storing of a new or different hazardous =aterial with the same hazard class as stated on the existing permit approvals where such storage does not increase the hazard of fire or explosion or th~ hazard of the production of flammable or poisonous gas. Storage of new or different hazardous materials, not meeting all of these criteria, shall require the prior additional approval. VIII.02 Apolication for Permit. Application for a new, amended, or renawed permit or an additional approval shall be made to the designated officer on the form provided b~ city*. In addition to the information required by such form, applicant shall submit the Hazardous Materials Management Plan required by Section IV.01 and construction plans, if any, in conformity with Section III.01. Applican~ shall specify the permit quantity limit requested to be permitted for each storage facility. VIII.03 Investigation. The officer to whom an application for a new or renewed permit is made may make such investigation of the applicant and the proposed facility or activity as such officer deems necessary to carry out the purposes of this Chapter. VIII.04 Approval of Permit. A permit shall not be approved until the issuing, officer is satisfied that the storage approved adequately conforms to the provisions of this Chapter. VIII.05 Provisional Permit. If the officer to whom application has been made finds that the proposal does hot completely conform to the provisions of this Chapter, the officer may approve a provisional permit, subject to conditions to be imposed by the officer, when such a provisional permit is'feasible and does not appear to be detrimental to the public interest. The applican~ must be informed in writing of the reasons why a full term permit was not issued. VIII.06 Temporary Permit. A Temporary Permit for storage may be issued where storage does city shall mean the local entity enacting the model ordinance. appropriate local officer 1042A -32- 0084B RJL :JRG: ir ~,l;/s3 not exceed 30 days and occurs no more frequently than every six months. The Containment Standards of Part III, the Hazardous Materials Management Plan of Part IV and the Inspection and Records requirements of Part VII may be modified aa appropriate under these circumstances for the storage of hazardous materials on a non-regular temporary basis. VIII.07 Issuance of Permits. A. Issuance. Upon the approval of a temporary, provisional, or full term permit by the officer and upon the payment of any applicable fee, the officer shall issue and deliver the permi~ to the applicant. Such permi~ shall contain the following information: 1. The namm and address of the permittee for purposes of notice and service of process; 2. The address of the facility for which the permi~ is issued; 3. Authorization of the storage facility(s) approved under the permit, the permit quantity limit(s) and the approved hazard class or classes for the storage facility(s); 4.The date ~he permit is effective; 5.The date of expiration; 6. When applicable, a designation tha~ the permit is provisional or temporary; 7. Any special conditions of ~he permit. B. Records. The officer shall keep a record of all permits issued and all conditions attached thereto. VIII.08 Additional Approvals. A. When a request for an addi:ional approval is filed as required by Section VIII.O1, the procedures set forth in this Chapter'for an application for a permit shall also apply to an application for an additional approval. Each application for an additional approval shall be accompanied by an appropriate amendmem~ So the H>fMP. B, If the additional approval reques~ is for closure of a storage facility, permlttee ~hall apply for approval ~o close such storage facility not less than thirty (30) days prior to the termination of * city shall mean the local entity enacting the model ordinance. ** appropriate local officer 1042A -33- 0084B RJL :JRG: Ir 4/7183 the storage of hazardous materials at the storage facility. Such closure shall be in accordance with a closure plan which describes procedures for terminating the storage of hazardous materials in each storage facility in a manner that: a. Minimizes the need for further maintenance; and b. Controls to the extent that a threat to public health or safety or to the environment from residual hazardous materials in the storage facility is minimized or eliminated; and c. Demonstrates that hazardous materials that were stored in the storage facility will be removed, disposed of, neutralized, or reused in an appropriate manner. This thirty (30) day period may be waived by citX* if there are special circumstances requirimg such waiver. VIlI.09 Term. A permit may be issued for a term of five (5) years, excepting provisional permits which may be issued for any period of time up to six (6) months and temporary permits which may be issued for no longer than thirty (30) days. VIII.10 Renewal. Every application for the renewal of a permit Or extension of a provisional permi: shall be made at least thirty (30) days prior to the expiration date of such permit. If a timely application for renewal has been submitted, the permit shall remain in effect until the city* has made its determination pursuan~ to Section VIII.Il and any administrative appeal pursuant to Part IX has been exhausted. VIII.Il Determination. Cit~ shall make a determination with regard to any application for a peak-mit, an additional approval, or a renewal, within ninety (90) days from the date that the application has been completed or compliance with the appropriate provisions of the California Environmental Quality Act (CEQA), has been completed, whichever occurs later. This time limit may be further extended by mutual agreement between ci~ and applicant. VIII.12 Fees. Cit~* shall establish fees sufficient to recover its costs * city shal~ mean the local entity enacting the model ordinance. ** appropriate local officer I042A -34- 0084B RJL:JRG: Ir 417IS3 in administering this Chapter and no application shall be accepted unless and until the fees have been paid. A. Delinquent Fees. All permit fees delinquent for thirty (30) days or more shall be subject to an additional charge to be determined by citE* which shall be added to the amount of the fee collected. B. Refund of Fees. No refund or rebate of a permit fee shall be allowed by reason of the fact that the permit is denied or the permittee discontinues the activity or ~se of a facility prior to the expirat, ion of the term or that the permit is suspended or revoked prior to the expiration of the term. V!!I.13 Transfer of Permit. The permit may be transferred to new owners of the same business only if the new owners accept responsibility for all obligations under this Chapter at the time of the transfer of the business and document such transfer on a form provided by ci. tz* within thirty (30) days of transfer of ownership of the business. Such transfer shall be subject to the approval of city*. VIII.14 Effective Date of Permit. No permit shall become effective until the permit has been signed and accepted by the perm!tree. ~ere the permittee ia a company, firm or corporation, the acceptance must be signed by a person having the legal authority to bind thep~~m__teeo~ ~ . PART IX DENIAL IX.0I Denial of Application. If the officer to whom application has been made has cause to deny the application and determines that it would not be feasible or in the public interest to approve a temporary or provisional permit, then the officer shall deny the application. IX.02 Grounds for Denial. A permit shall be denied if the applicant fails to demonstrate adequate conformity to the provisions of this Chapter. In addition, a permit can be denied for any of the grounds upon which the permit would * city shall mean the local entity enacting the model ordinanc, e. ** appropriate local officer !042A -35- 0084~ RJL '.JRG: lr ~ ~ ~/7/83 ~ ~ be subject to revocation pursuant to Part X. IX.03 Transmittal of Decision. The decision to deny the application shall be given to the applicant in writing, setting forth the findings upon which the decision Is based. IX.04 ~Appeal to City Manager.*~ Within thirty (30) days from the date of d~posit of the decision in the mail in accordance with Section' XI.02, the applicant may appeal/ in writing, to the City ManageK,** setting forth with particu- larity the ground or grounds for the appeal. IX.05 Hearin~ on Appeal. The City Manager** shall set a time and place for the hearing on the appeal and shall notify the applicant, in writing, of such date and time, not later than ten (10) working days from the date the appeal was received by the City Manazer**. The hearing shal%.be conducted within thirty (30) days from the date the appeal was received by the Cit~ Manaser*~. IX.06 Disposition of Appeal. After the hearing on the appeal, the City Manaser** may refer the matter back to the originating officer for a new investigation and decision, may affirm the decision of the originating officer, may approve a provisional permit as provided in Section viii.05 or may approve the application with or without conditions. The decision of the Cit~ Manager** shall be the final administrative determination and is subject to Judicial review. PART X REMEDLiL ACTION X.01 Grounds for Remedial Action. A permi~ may be subjected to remedial action for any of the following causes, arising from the acts or omissions of the permittee, either before or after a permit is issued: A. Fraud, willful misrepresentation, or any willful inaccurate or false statemen~ in applying for a new or reneweW permit; B. Fraud, willful misrepresentation, or any willful inaccurate or * citX shall mean the local entity enacting the model ordinance. ** appropriate local officer 1042A -36- 0084~ RJL: JRG: 4/7/83 false statement in any report required by this Chapter; C. Failure to abate, correct or rectify any noncompliance within the time specified in the notice of noncompliance; D. Failure to correct conditions constituting an unreasonable risk of an unauthorized discharge of hazardous materials within a reasonable time after notice from a governmental entity other than City*; E. Failure to abide by the remedial action imposed by the city*. X.02 Notice of Noncom9liance. Unless the City Manager** finds that an immediate suspension under Section X.04 is necessary to protect the public health or safety from imminent danger, the officer shall issue a notice of noncompliance: 1. For failure to comply with the provisions of this Chapter, any permit conditions or any provisions of the Hazardous Materials Management Plan; or 2. Before instituting remedial action pursuan= to Section X.01.D. Such notice shall be sent by certified mail to permittee. If the non- compliance is not abated, corrected, or rectified within the'time specified, remedial action may be taken. X.03 Notice of Hearin~ A notice of hearing shall be given to the permittee by the City Manager,** in writing, setting forth the time and place of the hearing, the ground or grounds upon which the remedial action is based, the pertinent code section or sections, and a brief statemen= of the factual matters in support thereof. The notice shall be given at least fifteen (15) days prior to the hearing date. X.04 Suspension Prior to Hearins. Whenever the City Manager*~ finds that suspension of a permit prior to a hearing for remedial action is necessary to protect the public health or safety from imminent danger, the City Manaser** may immediately suspend any permit pending the hearing for remedial action. The City Manaser** shall immediately notify the permittee of'such suspension by having a written notice of the suspension personally served on the permittee. Permi~ee shall have the opportunity for a preliminary hearing with regard to such preheating suspension within three (3) * city shall mean the local entity enacting the model ordinance. *~ appropr{ate local officer 1042A -37- O08&B RJL: 3RG: lr A/7/83 working days of receiving written notice of such suspension. X.05 Remedial Action. If the City Manager,** after the hearing, finds that cause exists for remedial action, the City Manager** shall impose one or more of the following: A. A warning; B. An order to correct the particular noncompliance specified in the notice issued pursuant to Section X.02; C. A revocation of the permit for the facility or for a storage facility and approval of a provisional permit; D. Suspension of the permit for the facility or for a storage facility for a specified period not to exceed six (6) months; E.Modification or addition of conditions of the permit; F. Revocatiom of the permit with no reapplication permitted for a specified period no~ to exceed five (5) years. If the grounds for remedial action are based on Section X.01 C, D or E and if such grounds are limited to one storage facility, the remedial action taken shall be limited to that storage facility. X.06 Transztttal of Decision. Within ten (10) days of the hearing the City Manager shall render a written opinion, stating the findings upon which the decision ia based and the ac=ion taken, if any. The decision of the City Mana~eK** shall be the final administrative determination and is subject to judicial review. X.07 Authority after Suspension~ Revocation or Expiration. The suspension, revocation or expiration of a permit issued under this Chapter shall not prevent any proceedings to investigate such permit, any remedial action against such permittee or any proceeding against such permittee. X.08 Return of Permit. In the event that a permit issued under the provisions of this Chapter is suspended or revoked, the permittee shall forward it to the issuing officer not later than the end of the third business day after notification of such suspension or revocation. * city shall mean the local entity enacting the model ordinance. ** appropriate local officer 1042A -38- RJL:JRG:lr PART XI HEAR!~G PROCEDURE XI.01 Hearing Rules. In any hearing under this Chapter, all parties involved shall have the right to offer testimonial, documentary, and tangible evidence bearing on the issues, to be represented by counsel, and to confront and cross-examine any witnesses agaimst them. Any hearing under this Chapter may be continued by the person conducting the hearing for a reasonable time for the convenience of a party or a witness. XI.02 Hearing Notices. Ail notices required by this Par~ shall be sent by certified mail, postage prepaid, to the applican~ or permittee at the address given for purposes of notice on the application or permit or delivered to the permittee personally. PART XI I Ei'~FORC a.,~,~ ~ XII.Ol Criminal Penalties. [NOTE: Criminal sanctions may be sought for viola:ions of this chapter, to the exten~ available under existing code provisions.] XII.02 Civil Penalties. Any person, firm, or corporation who intentionally or negligently violates any provision of this Chapter, except that an unauthorized discharge which is recordable and recorded in compliance with Section VI.01 shall not be a violation of this Chapter for purposes of this Section, or fails to comply wi~h any order issued thereunder, shall be liable for a civil penalty not to exceed Five Hundred Dollars per day for each violation which shall be assessed and recovered in a civil action brought in the name of the people by the City Attorney**. In determining the penalty, the court shall consider all relevan~ circumstances, including, but not limited to, the following: A. The extent of harm or potential harm caused by the violation; B. The nature and persistence of the violat{on; C. The length of time over which the violation occurred; D. The frequency of past violations; * city sh~ll mean the local entity enacting the model ordinance. ** appropriate local officer 1C42A -~.- OO845 RJL: JRG: Ir 417153 E. The permittee's record of maintenance; F. Corrective action, if any, taken b7 the permittee. In any civil action brought pursuant hereto, in which the citz* prevails, the court shall deter~-ine and impose reasonable expenses, including attorneys' fees, incurred by the city* in the investigation and prosecution of the action. XII.03 Civil Action for Retaliation. A civil action may be instituted against any employer by any employee who has been discharged, demoted, suspended, or in any other manner discriminated against in' terms or conditions of emp!oTment, or threatened with any such retaliation, because such employee has, in good faith, made any oral or written report or complaint related to the enforcemen~ of this Chapter to any company official, public official or union official, or has testified in any proceeding in any way related thereto. In addition to any actual damages which may be awarded, damages shall include costs and attorney's fees. 'rhe Court may award punitive damages in a proper case. XIt.04 Remedies not Exclusive. Remedies under this section are in addition to and do not supersede or limit any and all other remedies, civil or criminal. PART XIII MISCELLANEOUS XilI.01 DisclaiJer of Liability. A. The degree of protection required by this Chapter is consider- ed reasonable for regulatory purposes. The standards set forth herein are minimal standards and this ChapTer does not imply that compliance will ensure that there will be no unauthorized discharge of hazardous material. This Chapter shall not create liability on the part of the city*, any officer or employee thereof for any damages that result from reliance on this Chapter or any administrative decision lawfully made thereunder. Ail persons handling, storing, using, processing, and disposing of hazardous materials within the citz* should be and are advised to determine to their own satisfaction the level of prbtection in addition to thag required by'this Chapter necessary or desirable to ensure that there is no unauthorized discharge of hazardous materials. * citX shaI1 mean the local entity enacting the model ordinance. ** appropriate local officer 1042A -40- 0084B RJL :JRG: Ir ~/~/~3 B. This Chapter is not intended to create any different standard or obligation for the storage of carcincgens than is imposed for the storage of other hazardous materials. Hazardous materials are identified as carcinogens herein for public record purposes only and the identifica- tion of a material as a carcinogen shall not require a different or stricter application of the provisions of this Chapter, nor notice to any person under any circumstances other than those expressiy specified in this Chapter, nor shall such identification create any other duty or obligation upon city* different from or additional to those duties or cbligations applicable to the storage of other hazardous materials. XIII.02 Guidelines. Guidelines approved by the City Manager** shall be maintained in the Office of the City Clerk**. Such guidelines, in the areas address- ed therein, shall serve as an interpretation of this Chapter. XIII.03 Duties are Discretionary. Subject to the limitations of due process, notwithstanding any other provision of this code whenever the words "shall" or "must" are used in establishing a responsibility or duty of the city*, its elected or appointed officers, employees, or agents, it is the legislative intent that such words establish a diJcretionary responsibility or duty requiring the exercise of judgment and discretion. XIII.04 Conflict with Other Laws. Notwithstanding any other provision of this Chapter: A. A storage facility regulated by any state or federal agency will be exempted from any conflicting provision of this Chapter. B. If the storage facility is required to have a permit from the Departmen~ of Health Services under Mealth and Safety Code § 25100 et seq.., it shall be exempted from any provision of this Chapter which is covered by the regulations adopted under the above cited statute. C. ~enever any provision of this Chapter conflicts with the Fire Code as adopted by city*, the stricter shall prevail. * city shall mean the local entity enacting the model ordinance. ** appropriate local officer 1042A -41- 0084B R3L:JRG: ir 4/7/83 XIII.05 Severabili~v. If any section, subsection, sentence, clause, or phrase of this Chapter is for any reason held to be invalid or unconstitutional by a decision of any court of competent Jurisdiction, such decision shall not affect the validity of the remaining portions of the Chapter. The City Council* hereby declares that it would have passed this Chapter and each and every section, subsection, sentence, clause, or p~rase not declared invalid or unconstitutional without regard to whether any portion of the Chapter would be subsequently declared invalid or unconstitutional. P.A_RT XIV COMPLIANCE SCHEDULE XIV.01 Effective Date. The effective date of this Chapter is XIV.02 Time Table for Initial Comoliance. A. New Storage Facilities: 1. As of the effective date of this Chapter, a Hazardous Materials Storage Permit for a facility musg be obtained prior to the installation or use of any new storage facility unless a building permit for such new storage facility was issued prior to such date. 2. The Hazardous Material Management Plan must be filed at the time of application for a Hazardoffs Haterial Storage Permit. B. Existin~ Storage Facilities: 1. A facility which has any existing hazardous materials storage facilities or had obtained a building permit for such a storage facility prior to the effective date of this Chapter, and to which no new storage facility is added, shall have one (1) year from such effective date to file a complened applicacion for a Hazardous Materials SCorage Permit, including a monitorin~ plan in accordance wi~h Section III.03. The time limitation for determina- tion specified in Section VIII.Il shall not apply but the applicant shall be deemed to have a provisional permit of * city shall mean the local en~ity enacting the model ordinanc.e. ** appropriate local officer 10&2A -42- O0~B RJL JRG: Ir 417I~3 indefinite term, until citx* makes such determination. ~!otwithstanding the above, a Hazardous Material Inventory Statement, if applicable, muse be filed within ninety (90) days of the effective date of this Chapter. PASSED FOR PUBLICATI©N OF Ti.mLE this __ the following vote: day of , 19 ., by' AYES: NOES: ABSEnt: A~T_ST. Mayor City Clerk * city sha~l mean the local entity enacting the model ordinance. ** ~ppp~opriate local officer !042A -43- O08~B I, SUSANNE Eo STEIN-METZ, City Clerk of the City of Gilroy, do hereby certify that the attached Ordinance NOo~ 83-6. is an original ordinance, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the' 20th day of June ..~, 19 83, at which meeting a quorum was present° IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Gilroy, this 14th day of -, . July , 19 83 . City Clerk of .the CiCy of Gilroy