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Ordinance 1998-10t ORDINANCE NO. 98-10 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GILROY AMENDING THE HAZARDOUS MATERIALS STORAGE PERMIT ORDINANCE TO AUTHORIZE THE CITY, AS A CERTIFIED UNIFIED PROGRAM AGENCY, TO REGULATE GENERATORS OF HAZARDOUS WASTE, AS WELL AS THE TREATMENT, STORAGE, RECYCLING, AND DISPOSAL OF HAZARDOUS WASTE WHEREAS, the City of Gilroy applied to the California Environmental Protection Agency (hereafter "CalEPA") to become a "Certified Unified Program Agency" (hereafter "CUPA"); and WHEREAS, the City's application to become a CUPA was approved by CalEPA pursuant to Title 27 of the California Code of Regulations, and the City of Gilroy was certified, effective July 1, 1997, to become a CUPA; and WHEREAS, as a result of said certification, the City of Gilroy now has authority to regulate generators of hazardous wastes, as well as the treatment, storage, recycling, and disposal of hazardous wastes pursuant to California Health and Safety Code, Division 20, Chapter 6.5; and WHEREAS, delegation to the City of Gilroy of these regulatory responsibilities requires amending and updating the City of Gilroy's Hazardous Materials Storage Permit Ordinance in order to be consistent with State law; and WHEREAS, the City Code does not presently address the numerous regulatory and legal concerns related to the City of Gilroy assuming responsibility for the regulation of hazardous materials storage as a result of its status as a State-certified CUPA; and WHEREAS, it is the intent of the City Council to amend the City Code to include the detailed regulatory standards applicable to individuals and entities seeking to obtain and holding hazardous materials storage permits; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY DOES HEREBY ORDAIN AS FOLLOWS: The text of the Hazardous Materials Storage Permit Ordinance attached hereto as Exhibit A and incorporated herein by this reference should be and hereby is approved. If any section, subsection, subdivision, paragraph, sentence, clause, phrase or word of tiffs ordinance is for any reason held to be invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council ORDINANCE NO. 98-10 ~MSD\407990.01 -1 - 81-04100470~002 hereby declares that it would have adopted this ordinance and each and every provision herein, irrespective of the possibility that one of more provisions might be declared invalid. This ordinance shall take effect and be in full force thirty days from and after its adoption and approval. AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: PASSED AND ADOPTED this 27th day of April, 1998 by the following vote: ARELLANO, GIFFORD, ROWLISON, SPRINGER, GILROY NONE SUDOL MORALES, APPROVED: Mike Gilroy, Mayor ATTEST: Rhonda Pellin, City Clerk ORDINANCE NO. 98-10 \MSDg07990.O~ -2- 8~4)4~004706002 'R~h:l.b:Ll: A CITY OF GILROY HAZARDOUS MATERIALS STORAGE PERMIT ORDINANCE DECEMBER 1983 · AMENDED OCTOBER 1986 AMENDED 1998 · TABLE OF CONTENTS CITY OF On.ROY HAZARDOUS MATERIALS STORAGE PERMIT ORDINANCE 1998 PART I GENERAL PROVISIONS' 1.01 Purpose [02 General Obligation - Safety and Care 1.03 Specific Obligation 1.04 Definitions 1.05 Professional Assistance for City Determinations II.01 II.02 I1.03 III.01 El.02 III.03 III.04 III.0S III.06 RI.07 HI.08 III.09 III. 10 PARTH MATERIALS REGULATED Materials Regulated Exclusions Underground Tanks PART m CONTAINMENT STANDARDS Comainment of H,~,-rdous Materials New Storage Facilities Existing Storage Facilities Facility Closure Monitoring Maintenance, R~palr or ReplaCement Handling Secured Facilities Posting of Emergency Procedures 1 I 2 3 5 6 8 9. 10 14 14 15 16 16 17 17 17 1V.OI IV.02 IV.03 ~US MATERIALS BUSINESS H*~clous IVhtedah B-~-~,~ Plan S~ Form HMBP IVfmimal Storage Site 17 18 22 V.01 V.02 V.03 V.04 VI.0I Vl:02 VI.03: VII.01 VII.02 VII.03 VII.04 VII.05 PARTV HAZARDOUS MATERIALS INVENTORY Hazardous Materials Inventory Statement Information Required Trade Secret Protection Disclosure to Health ProfesSionals PART VI RESPONSIBILITY ' Reporting Unauthorized Discharge. Cleanup Respons~ility Indemnification PART VII INSPECTIONS AND RECORDS Inspections by City Inspections by Permittee Spe d inspecti°ns Substituted Inspections Maintenance of Records 22 .22 23 24 24 27 28 28 30 30 31 31 ' VIII.01 VIII.02 VIII.03 VIII.04 VIII.05 VIR06 VIII.07 VIII.08 VIII.09 VIII. 10 VI~.ll VIII. 12 VIII. 13 PART VIII '. APPLICATION FOR PERMIT Permit Application for Permit Investigation Approval of Permit Pwvisional P~u~ Temporary Permit Is.mauce of Peri,its Additional Approvals Determination Fee~ Transfer for P~, Effective Date of Permit 31 32 .32 32 32 33 33 34 34 35 35 35 36 IX.01 IX.02 IX~03 IX.04 I~05 IX.06 X. 01 X.02 X03 X. 04 X.05 X06 X. 07 X.08 XI.O1 X/.02 XII.O1 XII.02 XII.03 XII.04 xm01 ~Xlll 02 xm03 XTH04 XHL05 XIII.06 Grounds for Denial Transmittal of Decision Appeal to City AdminL~ator Disposition of Appeal PART X RE~-DIAL ACTION Grounds for Remedial Action Notice of Noncompliance Notice of Hearing Suspension Prior to Hearing Remedial Action Transmittal of Decision Authority ai~er Suspension, Revocation, or Expiration Return of P~sufit PART XI HEARING PROCEDURE Hearing Rules Hearing Notices PART XH ENFORCEMENT Criminal Penalties Civil Penalties Civil Action for Retaliation · Remedies Not Exclusive PART xm MISCELLANEOUS Disclaimer of L'mbility Guidelines Duties are Discretionary Conflict with Other Laws Report to the California Environmental Protection Agency 36 · 36 37 37 37 37 38 38 39 39 39 40 40 41 41 · 42 42 42 43 43 44 45 45 45 XIV. O1 · XIV.02 PART ~V COMPLIANCE Effective Date Time Table for Initial Compliance 47 47 CITY OF GrL~OY KA~RDOUS MATERT~L~ STORAGE PERM1T ORDINANCE L01 L02 A. C. PART 1 GENERAL PROVISIONS Pu~ose The purpose of this chapter is the protection of health, life, resources and property thr6 .u~h prevention and control of unauthorized releases ofb~-~rdous materials. Genernl Obligation-Safety and Care_ No person, firm, corporation, or other entity shall cause, suffer, or permi~ the storage of bzT~rdous materials: 1. In a manner which violates a provision 0fthis chapter or any other law; or 2. In a manner which causes an unauthorized release ofb*7~rdous materials or poses a significant risk of such unauthorized teleas~ The City shall have discretion to exempt an applicant fi.om any specific requirement'of this Chapter, other than the requirement for secondary containment in underground storage fac'flities, or io require applicarrt to meet additional or modified requirements, where such action would be appropriate and consistent with achieving the general obligation of this Chapter for protecting public health, safety, and welfare.' The City as a Certified Un/fled Program Agency (CUPA) is responsible for the implementaion of Title 27, Division l, Subdivision 4, California Code of Regulations known as the Unified H*7~rdous Waste and Hazardous Materials Management Regulatory LO3 A. ' Any person, firm, or corporation which stores any material resulated by Section lI.(Jl which is not excluded by Section II.02 shall obtain and keep. cun-en~ a ~,~uns Materials Storage Pe,,.;t. · Ali such bn~dous materials shah be contained in conformity with Part m' of this ' Chapter. . . The storage of such hazardous materials shall be in conformance with the approved Ha:~.arduns Materials Business Plan. The City shall apply for, and the Officer shah consider and issue where approlmate, a permit, in conformity with this Chapter, for the storage ofhn-~rdous materials by the City in an underground storage tank, as those terms are defined in Title 23, Division ChaPter 16 California Code of Reg-lnfions and Chapter 6.7 of Division 20 of the California. Health and Safety Code, wherever the City's storage facility may be situated. Any other city, county, district or depaa huent, or agency of the state which stores any h~7~rdous substance, in an underground storage tank, as those terms are defined in Chapter 6.7, and Title 23 California Code of Regulations in the City without a peiu~t meeting the requirements of said Chapter.6.7 a~d Title23 issued by such other local. agency, shall obtain and keep current a permit fi.om the City which conforms at a minimum to Section 25284 of the Health and Safety Code. 2 shall have the meanings set forth belov<. Abandoned_ when referring to a storage facility, means out of service and n°t safeguarded in compliance with this Chapter. Facility. means a building or buildings, appurtenant structures, and surroun' '.di~ land area used by a' single business entity at a single location of site. ~ means Explosives A, Explosives B, Explosives C, Blasting agents, Flammable liquids, Combustible liquids, Flammable solids, Oxidizers, Organic peroxides, Corrosive materials, Flammable gases, Nonflammable gases, Poisons, Irritating materials, Etiologic agents, Radioactive materials, Carcinogens, Other Regulated ' · Materials (ORIVo 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 may be utilized; howeVer, wheneVer the definitions in 49 CFR 173 refer to transportation or. hazards associated with transportation, they may be deemed to refer to storage or other regulated activity under this Chapter. ~ means any material which is subject to regulation pursuant to Part II of this Chapter. A mixture shall be deemed to be a bpT~rdous material if it either is a waste and contains any material regulated pursuant tO Part II of this Chapter, or is a non- waste and contains one percent (1%) by volume or more of any material regulated pursuant to Part II of this Chapter. ~llfiag..Q~a.e~ means the City Admin?rator or his/her designee. Laws means all governmental statutes, codes, roles, regulations or other laws. Officer means the employee assigned by the City to administer this Chapter or any designee of such'employee. 3 that can be stored in a storage facility. Separfite p~.~t quantity limits will be set for' each storage facility for which a permit is obtained in accordance with the requirements of thi,'s Chapter. 'Permittee means any person, firm, corporation, or other entity to whom a permit is issued pursuant to this Chapter and any authorized representative/'agent or designee of such person, firm, corporation, or other entity. Piping means any pipe, tubing, vahtes and fittings conveying bn:'nrdous materials. ~ means the first level of containment, i.e. the inside portion of that container which comes into immediate con .t.t.t.t.act on its inner surface with the hnTnrdous nmterial being contained. ~r_oA[lt~lz.ti~ means imp~Vious go the hazardous material which is contained, or is to be contained, so as to prevent the seepage of the hazardous material fi.om the primary containment. To be product-fight, the container shall be made ora material that is not subject to physical or chemical deterioration by the b~7~rdou$ material being contained. ~ means the level of containment external to and separate fi.om the primary containment. ~.means construction with walls made of but one thickness of material. Laminated, coated, or clad rnaterial$ shall be cormidered as single-walled. ~ mean~ any one or combination of tanks, SUmps, wet floors, waste- 'treatment facilities, pipes, vaults or other portable or fixed containers, used, or designed to be Used, for the storage ofhaT~rdou~ materials at a facility. Sump means a pit or well in which liquids collect. 4 ~ is a rdease or eminion ofmat~l~ in a manner which does not publio henlth'and ~ety regulatior~ Wet floor means a floor which is used to routinely collect, contain or maintain standing liquids or to transmit standing liquids on a more or less ~n~tinuous basis. LO~ Professional Assistance for City Determinotlons Whenever the approval or satisfaction of the City maybe required in this Chapter for a design, monitoring, testing or other technical submittal by an applicant or permittee, the City may, in its discretion, require such applicant or pesmittee, at such applicant's or per~J/tee's sole cost in.d expense, to retain a suitably qualified independent engineer, or chemist, or other appropriate professional consultant, acceptable to the City, for the purpose of evaluating and rendering a professional opinion respecting the adequacy Of such submittal to achieve the purposes of this ChaPter. The City shall be entitled to rely on such evaluation and/or opinion of such engineer, chemist or professional consultant in making the relevant determina~:ons provided for in this Chapter. PART It' MATERIALS REGULATED The materials regulated by this Chapter, shall:consi~ of the followin~ ' A. Any material I~sted as a bsT~nious and/o~: extremely b~7*rdo~s-matefial o~: b~7~dous and/or extremely b;~,*Tdous waste in SeCtions 66680 and 66685 of Title 22 of the California Admini~u~ive Code, as emended, whether such material is stored or handled in waste or non-wasta form; or Any material which is listed on the list of Environmental Protection Agency (EPA) pollutants, 40 Code of Federal Regulations, Section 401.15, as amended; or Any ~naterial which is classitied by the National Fire Protection Association (NFPA) as either a flammable liquid, a Class II combustible liquid or a Class IliA combustible liquid; or as classified in Article 80 of the 1994 Uniform Fire Code as amended; or Any material which is listed by the Director of the Department oflndusuial Relations in Title 8~ California Admi~. ' .st?ative Code Sec, 339, as amended, excluding all footnotes thereto and subject to the exclusions specified in this subsection. Such exclusions Shall apply only to materials which ar~ not otherwise regulated pursuant to this Section II.01 These exclusions shall be ds follows: 1. Materials reco~ in the official United States Pharmacopoeia, official Homoeopathic Pharmaoopoeia of the United States, or official National ' Formulary, or any supplement to any of them if such materials are inlended for 6 disulfide; Boron'oxide~ 4-tert-Butyl-2-chlorophenyi-~nethyl. mehyiphosphoramidate; Camphor; Carbon black4 ~-Chl°ro-6 (trichloromethyt) pyridine; Clopidol; Coal tar pitch vohitiles; Cotton dust; Dibenzoyl peroxide (Benzoyl peroxide) Dicyclopentadienyl iron; 3,$-Dinitro--o-tol~mlde; 2,6-Di- ' tert-buWl-p'cresol; Ferbam; Fumaric acid; Gta~, fibrou~ or dust; Graphite, · Helium; Iron oxide; Iron salts; Magnesium oxide; Mica; l~aneral wool fiber; Oil mist; Phenothiazine; Phenyl ether; Pheny[ ether-diphenYl (eutectic mixture), vapor; Phthalic anhydride; m-Phthalodinitrile; polyt~h-~sluoreoethyiene Decomposition products; Rhodium salts; Ronnel; Rosin core ~older; Rotenone, commercial; Silica, Soapstone, Talc; Tantalum oxide; Terphenyis; and 4,4'- Thiobis (6-te~'t -butyl-m-cresol). Any'material which has been determined to be i~7~rdous based, upon any appraisal or assessmeht 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, deteimined to be hazardous due to the deh'oerate failure of the party storing the material to comply with the requirements of the EPA and/or the Depamaent of Health Services; or Any material which has been determined by the patty storing it, through testing or other objective means, to be likely to create a significant potential or actual h*7~rd t° public 7 IL02 This chapter does not apply to the following:' A, . Cet~ain Elemental health, safety or welfar~ ~ subsection shall not estab!i~h a requiremeat to.test for the pUrPoses of this Chapter. The following elemental metals included within the purview of Section HOI shall not be considered b~nrdous materials for purposes of this Chapter unless they are stored in a friable, powdered or finely divided state: Aluminum. Beryll_ ium Cadmium_ Chromium Copper~ Lead. Man_~anes?, Molybdenunt Nickel. Rhodium Silver. Tellurh~m Till and Zinc. Furthermore, Tantalum. Titanium_ Tun?~t~n and Uranium shall.be excluded fi'om regulation under this Chapter. B. Retail.and Wholesale prOd,,~S Storage of retail and wholesale hazardous materials products shall be in accordance with Article 80 of the Uniform Fire Code as mended. C Feed Hazardous materials when contained in a substance imended for use as animal feed. 14a;ardous materials located at a work ~tation in a quantity reasonably required for 6se as determined by the City under the circumstances. The City shall exempt any material f~om the requirements of this Chapter where it has been demonstrated to the satisfaction of the City that the material in the quantity and/or solution stored does not presmt a si~nificant actual or pou~*! hn~,d to t~e public hedth, safety or welfare. ]].O3 IJ~lm~zimlt~ta~ NotWithstanding Section H.02 above, and in addition to, those materials regulated . pursuant to Section H.01 above, n permit to operate shall be.required for the storage in an under~ound storage tank as defined by. California Health and Sa_Cetv Code, Chapter 6.7 and ' Title 23, Division 3, Chapter 16, California Code of Re_m~lations as amended, of any, material defined as a hazardous mbstance. PART IH CONTENT STANDARDS HI.01 Containment ofHn-*,xlous Materip~- No person, firm or corporation., or other entity shall store any. baT*rdous materials re_gulated by this Chapter until a perm~ has been issued pursuant to this Chapter. No permit shah be ~anted pursuant to this Chapter unless .~.~t applicant demonstrates to the satisfaction of the City_, by the.submission of apprOP~eplans and other information, that the desin~ and construction of the storage facility will result in a suitable manner of storag_e for the bnT~rdous · material or materials to be contained therein. AH installation- consm~ction, rep. air or modification, closure, and removal ~ be to the satisfaction of the City.. The _.guidelines ap~oved pursuant to Section XII102 shall serve as an interpretmi.'on of the provisions of this Pan addressed in such _s~uidelines., 9 .B. · No person, firm, cow_oration or other ~aky shall construct or/nstall any new . stor _a~e facility until a permit ~ been issued pursuant to this Cim~er. All new storage facilities intended for the storage ofh~rdOUs materials which are liquids or solids at normal temperature and pressure (NTP) shall be desi_~ed and constructed with a monitoring system cap. able of detect~_ that the b~:'srdous material stored in the primary containment has eniered the secondaw containment. 'Visual inspection of the prirn~, containment is the preferred method; however, other means of monitoring may be required by the City.. Where secondary. containment maY be mbject to the intrusion of water, a means of monitoring for such water shall b~. provided. In addition to monitoring,_ an approved method for safely removing the water shall also be provided. Whenever.monitoring devices are provided, they. shall, where applicable, be · connecied to attention-getth~g visual and/or audible alarms. C°n}ainment Requkem~-~ts Primary. and secondary, levels of containment shall be required for all new storage' ;' facilities intended for the .storage ofhlizardous materials which are liquids or solids at normal temperature and pressure (NTP). 1. All primary, containment shall be product-ti_~t. 2. Secondary. containmc, nt: a. All secondao.' containment shall be constructed of materials of'sufficient 10 . thickne~, de~y., and co .mpo~ition so as ~ to ~ ~ ~ ~fidpat~.~e ~d~ to ~ow ~v~ of~e ~'hn~-rdous B~gs, rooms or ~ ~ ~r ~e ~o~e ofh"=nrdo~ ~t~s ~qui~ or ~l~ s~ ~ pro~d~ ~th ~n~ ~t whm the c~oad~ of ~ ~&~d~ v~l or ~e agente ~p~ of~fiple yes,Is ~c~ds ~e ~Ho~mg: Liq~ds: C~a~ of ~ ~d~ vess~ exc~s 55 ~o~ (208.2L) or ~e a~e ~ ofm~le v~ls ~c~ 1,~0 g~s (3785L). So,ds: Cap~ of~ ~d~ ~ ~s 550 ~unds (248.8kg) or ~e a~egate ~p~ ~f ~ple vessels ~ 10,~0 pounds (4524.8~). S~on~ ~n~mt for ~door ~omge ~e~ ~ ~ de~ed to of 20 ~teg ll d. Second. containment for outdoor ~tor~e_ ~ ~ be de~.~ned to contain a spill from the largest individual vessel. If the area is oven .to rainfall secondary, containment shall be desi.l!~ned to include the volume of 'a 24-hour rainfall as determined by. a 25-...v?r. storm and proyisions shali ., be made to drain accumulations of ~zroundwater and rainwater. 3. Laminated, coated, or clad materials shall be considered' sin_gle-walled and shall. not be constrUe~l to fulfill the requirement~ of both primary and secondary. Ove~ll/Overs.oill Protection Means of overtilVoverspill protection may be required for any primary container. This may be an overfilVoversp_ ill prevention device and/or an attention-_~euing_ hi_v,h level Incompatible materials in storag_ e and storage of materials incompatible with materials in use shall be separaIed when the stored materials are in containers havin_~ a capacity. of more. than 5 pounds (2.268k_~) o.r 1/2 _gallon (,1..89L). Separation shall be accomplished by.: 1. Se_re' _e~ting incompatibl~ materials storag; by a distance of not less than 20 feet (6096mm). Isolating incompata'ole materials storag_¢ by. a noncombustible partition extending not less than 18 inches (4~7.2mm) above and tO the sides ofthe stored 12 't Storing liquid and ~olid matefi,I, in'hazard~ m~eri~!~ stor~ cabinets, or . Storing compassed gases in gas cabinets or exhausted e~losur~. Materi~s which are inoompa~'ble shall not be stored within the same cabinet or exhausted enclosur~ ' Drain~__ e systems shall be in accordance with the Uniform Plumbing Code as amended and the following: The slope of floors in indoor locations or similar areas in outdoor locations to -. drains shall be not less than I percent, Drains from indoor storage areas shall be sized to carry, the volume of the fire- protection water as determined by the design density, discharged from the automatic fire-extinguishing .system over the minimum required system design . area or area of the rOOm or area in which the storage is located, whichever is smaller. Drains from outdoor storage areas shall be sized to carry, the volume of the fire flow and the volume ora 24-hour rainfall as determined by a 25-year storrr~ Materials of e0nstmction for drainage systems shall be com.t~tible with the materials stored.' Incompatible materials shall be separated from each other in the drainage systenL and Drains shah terminate in an approved location away from building, valves, means of e~ess, fire access roadwa.vs~ adjgining property, and storm drair~ 13 · m.03 Exlstin~ stor~_~ Any storage facility, in existence as of the effective date of this Chapter, or any. stora_a_e ~ for which a building .~t'~t was issued prior to the effective date ofthi, Chapt. er. which does not meet the standards of Section RI.02. rrmy be ~ vursuant to this Chapter as 10ng as it is providing suitable storage for hn~'~rdous materials as determined by the City.. In addition,. storage facilities which contain ha=~rdous materials which are li/luids 0r solids at normal temperature and pressure (NTP) must be mon/tored in accordance with a phn approved by the City. as set forth herein. A. A morn'toting plan for each such storag_e fac/I/ly containing ha=~rdous materials which are liquids or solids at' NTP. shall be submitted to the City as oart of the I4A=~rdous Materials Business Plan. B. Monitoring under such plan shall include visual inspection 0fthe primary containment wherever practical; however, if the visual ' .inspection is not practical an alternative method of monitoring each storage fadli .ty on a mont~, or more frequent basis may be approved by the Ci .ty. Temporarily °ut-o f-service fae/llti~ Facilities which are tem!~orarily out of sorvice shall continue to maintain a .ve~! and be monitored and inspected. Permanently_ out-of-service f-~ili~-i.~ Facilities for which a .o=u~At is not kept current or is not monitored and ins-vected on a re_~uhr basis.shall be deemed to be permanently ou~ of service and shall be closed in accordance with Section m.0~(C). 14 C. Pi~ The pem~t holder or applicant shall subu~i a plan to the City. to te~minate storage. ~ handling or use of h~-*rd0us materials nt least 30 days prior to facili .ty closure. The plan shah demon~nle that hs~dous materials which were stored, dispensed` handled or used in'the facility, have been transported, disposed of or reused in a manner that eliminates the need for further maintenance and any. threat to public health, safety, and welfare. Closure shall be in accordance with any other State or Federal requirements concerning bsT~rdous materi~l$. Monitorin_g methods shall include at least one .system for detectin_~ leaka_~e fi.om the primary, container. A monitorin_g .system capable ofdetect~_ that the h~7~rdous material stored in the prim~, containment has .entered the second~, co .n~inroent shall be provided. Visual inspection of the primary, containment is the .preferred method; however, other means ofmonitorin_g may be r .equh'ed by the City.. Where secondary. containment may be subject to the intrusion of water, a means of monitorin_g for such water shall be provided. Whenever monitorin_~ devices are provided, they. shall where applicable, be connected to attention-_~ettin_g visual and/or audible alarms. B. ' Monitorin_~_ Testing_ and lns.nectio~l Every. p~ufittee under this Chapter shall provide testing, monitorin_g, and insl~ections in compliance with the HsT~rdous Materials Business Plan and shall maintain records adequate to demon,th~,e compliance' therewith: 15 A. Permittee will carry out maintenance, ordinal..upkeep, and minor repairs in a ctre~l.and safe manner. No ~ or other approval will be required for such m~;qteusnce and B. Any substantial modification or ~?air of a stora_~e facility, other th~n minOr rcoairs or emer_Renc.v, repairs sh~!! be in accordance with plans t° be submitted to'tbe CiW. and approved in accordance with Section V1~.08 prior to the initiation of such work. C.' Permittee may make emergency repairs to a stora.~e facility, in advance of seekin~ an additional permit approval whenever an immediate repair is required to prevent or contain an unauthorized release orto protect the inte.~ity of the containment. However. within five (5) working days after SUch emergency, repairs have been started. permittee shall seek appro.v~ pursuant to Section VH~.08 by. subr, fittlng drawings_ or other information adequate to descn~oe the rep. airs to the City. D'. Replacement of any storag_e facili .ty for hazardous materials, which are liquids or solids at NTP, must be ih accordance with the new installation standards of Section ITI.02. m.0? aandl A.. Dispensing and mixing ofhn'7~rdous materials must not be done in such a manner as'to substantially, increase the risk of an unauthorized release. When hnznrdous' materials are moved into or out ora storaxe facility, they shall remain in the travel path only for the time reasonably necessary to transport the b~7~rdous material and such movement shall be in a manner which will not result in an unauthorized release. 16 Access to the stora~_e facilities shall be secured by. means offences and/or locks. The access to the stor~_e facilities shall be kept secure.~ locked wh~ unattended. HI.09 ' Emery_choy E~uipment Emergency. equipment shall be provided which is reasonable and appropriate for. votential emergencies presented by. the stored b.7~rdous 'materials. Such equipment shall be r _e~ulariy tested and adequately maintained. !II.10 Posting of Emery_chOy Procedu~ Simplified emergency, procedures shall be posted conspicuously in locations where h"7-rdous materials are stored. PART IV HAZARDOUS MATERIALS BUSI~¥ESS PLAN IV.01 Hazardous Materials Bn*~ess plo~ Each applicant for a permit p~suant to this Chapter shall file a written pla~ for the Ci .ty's approval, to be known as a Hazardous Materials Business Plan (HMBP). which shall demonstrate the safe storage'and handling ofh~rdons m~t_erials, The HMBP may be amended ~'! any time with the consent of the City. The HIvlBP shall be a public record except as otherwise specified. Approval of the HIVlBP shall mean that the I-IMBP has provided adequate information for the purposes of evaluating the permit approval. Such approval shall not be understood to mean that the City. has made an independent deter-ruination 0fthe adequacy, of that which is described in the HMBP. 17. IV.02 Prior to the storage_ of any l~rdous material the owner of a facility.' must complete a H.--,dous ~ Business Plan and submit a coW for each site which handles any. individual b~rdous material or mixture containing a ha~dous material which has a quanti .ty at any one time during the renortine year e~ual to o£ ~reater thatc'. 1. Liquid'ha~rdous matc~ri~l~: a. Lubricating oils a.s defined by. Health & Safety. Code. 25503.$(b)(2 .}(B): -, 55 gallons of each .type. or 275 gallons an~renate ou/ntitv on site b. AH others, including waste oil: 55 gallons [Health & Safety. Code, 25503.5(a)] Z 500 pounds for solid hn7*rdous materials [Health & Safety. Code. 25503.5(a)] 3. Hazardous material _easeS' a. Oxygen or Nitrous Oxide stored/bandied at a physician, dentist. podiatrist, veterinarian, or pharmacist's place of business: 1.000 cubic feet of each material on site. [Health & Safety. Code, 25503.5COX1)]. b. AH otheri: -200 cubic feet .[Health & Safety. Code. 25503.5(a)]... B. Hazardous Matmiai/Waste Registration FOrm· The owner ofa facili .ty must comp!ete and submit a regi_'stration form when the quantities of baTardous matenals/waste is less than I-In=ardous Materials Business Plan requirements vursuant to Chanter 6.95 of the California Health & Safety. Code 1'8 Section A - Genend Infnrnmfion The HMBP ~an contain the name and address of the facility and b,~i-ess phone number of the applicant, the name and titi~ arid emergency phone numbers of the primary and secondary Emergen~ Coordinators, whether Acutely IJaT~*rdous Materials (as defined by State Law) are pre~ On-site, EPA ID Numbet, principal business activity, the billing address, Industrial Waste Discharge-Contaet, the property owner and phone number, facility hours of - operation, and the number of employee per shift 2. General Facili _ty Description The HMBP shall contain a map dravm itt a le~'ble scale and in a format and detail determined by th? City. It shall show the location,of all buildings and structures, 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, smi'~ce v]ater bodies, and/or general land uses (schools, hospitals, institutions, residential areas) withip One mile-of the facility boundaries. Section B - Non-Waste Ha~rdotm Materials Inventory Ail non-waste haT~*rd0US materials stored at the facility must he listed on the Non- Waste Hazardous Materials Inventory statement. Trade secret materials should be "Trade Secret". 19 .E. Inventory Statement. Trade secret m~tefials should b~ listed sepsrstely from non-trade secret materials and each page must clearly be marked q'rade Secret". Facility Site Plan and Stora_ee Mn_n A site plan and storage map must be included with an I-IMBP. For relatively small faoilities, thes~ documents may be combined into one duawing with City approval. Larger facilities should provide an overall site plan and a separate storage map for each I~uiiding/storage'area. These drawi%~ are intended for use in emergency response situations. Due to the threat to the safety of the facility posed by the disclosure of the . informati°n in the Facility Storage Map, the City sh~l! take reasonable steps not to disclose this information to the.public without th~ consent of the permittee or l~i,,;i apPlicani 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 ' action. PromPt notice of a lawsuit to compel disclosure shn!! be given by the City · tO l~-~mittee or permit applicant. However, the City shall not be required to take reasonable steps to prevent disclosures where there has been any unauthorized release of hazardous materials stored in storage facility(s) shown on such map or where tach disolosure arises out of any official emergency response relating to the storage fmqity(s). 2O b. The Facility Storage Map ,k.n,be updated ,.,..,.ny or whenever ~n additional Inventory Statemem is requited to be amended. Ememencv Reslx~tse/Contln~encv Plnn. AH ~es which handle h~.-,dous materials Or which generate 1,000 kilograms or more of b~7~rdous waste per month, or accumulate m°re than 6.0001 kilogrnms of hazardous waste On-site at any one time. must prepare a contingency pla~ AH fa~lities which handle hn-nrdous mnt~L~ ~ ~v~ a writte/l ~lployee trsining plan. Recordkeeping The following records must be msintained at the tacit: 1. Cmrent employee's trsininS record~ (to be retained until closure of the 4. 5. 6. 7. 8. Former employee's training records (to be retained at least three years ..after termination of employment). Trnining _.larogra~' Current copy of the Emei'gency Response/~ingency Plan. Record of recordable/reportable hn~rdous material/waste releases. Record of hs~,nrdous materials/waste storage area inspeotions. Record ofhs~'dous materials/waste tank daily inspections, 21 A facility shall quai~ as a minimal storage site if the qmu~ty ofench hazardous material stored in one or more storage facilities in an a~gregate qumdlty for the facility is 500 pounds or less for solids, 55 gallons or less for liquids; or 2.00 cubic feet or less'at' NTP for compressed gases. The applicant for a permit for a facility which qualifies as a minlwial storage site is subject to Uniform Fire Code permit requirements. PART V ' HAZ, VOUS MATEmALS n'a' rro Y V.OI .Hn~srdous Ms~vinls ~v~to~ Stnt~t A Hn~d~'~ ~0~ S~t ~) ~ ~ ~ ~ ~ C~ ~ ~rd~ ~ ~s P~. A ~S is r~ to be ~ ~. A ~ on a ~ appmv~ fo~ t~ no c~ge ~ the q~ ofmt~ ~ ~ ~on ofn~ ch~s ~ ~ sin~ the ~ ~g ~'a~ie. ~ p~o~ ~ ~fion or o~ ~ ~ch aores ~ ~dous ~t~ ~ ~ ~ w~ch ~ ~ to or ~ ~ &e ~fifi~ ~ ~ . S~on V. 02.A ~ r~ m ~e ~ ~S. Such ~ ~ ~ or ~ ~F ~ th~e~ ~ r~ to ~ ~ ~ S~ V.02.A. v.0 (~ ~ ~ ~ch ~ ~or~ ~ ~e ~ m~ ~o~ ~) ~ ~ weight for solids, ~reater tlum ~'y=five (55) gallons ~or liquids, or ~fe~tel- thnn tWO hundred (200) cubic faet nt normal temp~ ~ure and pressure (NTP) for compressed B. . The information in the HM~S shall include: 1. For non-wnstes: The common/trade name, chemical nnm~,, components & concentration, the chemical abstract'number, physical state, quantity stored, units, days on site, ~storage codes, and the Superfund Amendments and Reauthorization Act of 1986, ' (SARA) h,,~rd class(es). 2. For wastes: The waste stream name, components and concentration, trentment/disposal methods, California waste code, physical state, annual quantity generated, quantity stored, units, days on site, storage codes, and the SARA hazard class(es). V.03 Trnde Secret Preteet_~,,., Any person, firm, corporation o~ other entity seekin~ trade secret protection under federal or state law .must do the following: A. claim trade secret protection, based on the'following factors: (1) no prior disclosure has been made, except to certain government representatives or otben bound by a confidentiality agn~ement; that reasonable measures have been taken to protect ez~identiality, and such measures will be continued,- 23 (2) no othe~ federal or state law require~ disclosure or av.,~.~ity to, the public: (3) disclo~are is likely to cause substantial com~ hnrng nnd (4) the chemical identity is not readily discoverable through reverse enginee~ng. submi~ ,,-~ copies which clearly indicate the information claimed as trade secret. V. 04 Disclosure to Hen#h Professiflool. Trade secret information shall be provided to health professionals when necessary to car~ om their duties with respect to diagnosis or treztment, a medical emergency, or the development of preventive measures. PART VI RESPONSIBrLrI'Y VL01. Re_oortin_~ Unauthori~4 Reich_-,. AS soon as any person in charge of a storage facility or responsible for emergency response for a facili~ has imOWledge of any confirmed or unconfirmed unauthorized release ora hazardous ~sterial which is liquid.or solid at NTP, such person shall take all necessary steps to enmre the discovery and containment and clean up of such release · and shall notify the City of the occurrence as required by this subsection. 1. Confirmed Uns~h~dzed Release, a. ' Recordnble Unn~nhnr~7~ ]~1~, Any recordnble unauthorized release ~hn. be contused and safely disposed of in an appropriate manner by permittee and such occurrence' records. A recordable ~,n~uthorized release is any ~ r~i .cOw o£& h~,~ous materizl which meets all o£the following ~eria: 'i. The release is fi'om a i~maz7 ~.~ to a secondary ' conta~ or to a rigid above ~r~Uad surfi~ce coverin~ capable of cO~tninlnoo the release until cleanup 0fthe hn~rd-o~ls material i~ completed; and ii. The permittee is able to adequately clean up the re/ease before it escapes fromsuch secondary containment or such above ground. surface, but if the cleanup requires more that eight (S) hours, it b~comes a reportable release in accordance with Section VI. O1. iii. There is no increase in the hsd*rd of fire or explosion, nor is the~e any production Of a flam~Sle or poisonous gas, nor is there any deterioration of such secondary containment or such rigid above · ground surface. iv. An otherwise recordable unauthorized release does not need to be recorded if the release is not the result of the deterioration or failure ofthe'primnry container a~d the quantity released is less than one (1) ounce by weight, s-O can be cleaned up within fifteen (~ ~) minutes. 25 The reporting party shah provide infozmafiOn to the city relating tO the ability of pe~ittee to contain and dispose of the h~rdous material, the estimated time it will take to complete comainment and disposal and the degree Of haT. rd created. The City may verify that th~ ha~rdou$ time upon a determination that permittee is not adequately containing and disposing of such h~rdous material, ahan have the power and authority to undertake and direct an emergency response in order to protect the public health, safety and welfare. 2. Unconfirmed ~.Jnmrthorized a, Indication of Loss in Inventnrv Recorde Whenever a material balance or other invemory record, employed as a monitoring technique under the HMBp, indicates a loss of ha~'~rdous material, and no unauthorized release has be~m confirmed by other means. permittec shall have f~e(5) wo~.5 clays to deter-~,,~ whether or not there hag ~ ~1 unmn'.horized r~. If'he,Core thz ~ of such peri°d, it is det~,.~;ned that there has been no tmamhofized release, an entry Where permittec has not be~n able, within such period, to determine that 26 th~ h~ b~n ao'unauthori~l r~, m um~oriz~ r~ ~s deemed co~-~ua~l and permittee shall proceed in ao:orclance with mbsection VI.OLA. I.b abovel Whenever any test results suggest a possa~ole Unauthorized release, and no unauthorized .release has been ~ed by other means, the pe~mit~ee shnll have five (5) working days to retest. Ifsec°nd test results obtained within that period establish that there has been no unauthorized release, the results of both tests shall be recorded in permittee's monitoring been no ~-n-thotized release, an unauthorized release is deeued confirmed and pennittee shall proceed in accordance with subsection VI. OI.A.I.b above. B. Gases at NTP Any person in charge of a storage facility or responsible for emergency response for a storage facility, who has knowledge of any unauthorized release of a h~rdous material which is a gas at 'NTP, must immediately report such release to the Cily if such release · presents a'threat Ofimminent danger to pUblic health,' safety and welfare. Any person, finn, corporation or oth~ entity responsible for sto~mg the hs~rdous material shall institute and complete all actions necessary to remedy the effects of any mmuthotized release, whether sudden or gradual. The City shsll undertake actions to remedy the etrects of such 27 circ~m~tances for the Ci~/to do so. The ~'ble pray shall b9 K~ble to .~m~rse the City the costs of figl~-~ f~es to the extent allowed by law. This respo~ili~ is no~ conditioned upon evidence of willfulness or negligence of the party Storing the hs-ardous materials in causing o~; allowing such release. Any responsible party who undertakes actionl0 remedy the effects of unauthorized releases shall no~ be barred by this Chn.,ner from seeking to recover appropriate coSts and expenditures from other respo~'ble parties except as p'rovided by VI.03. ' The permittee shall indemnify, hold harmless and defead the City n?in~ any claim, C~p.~e of action, disability, loss, liability, damage, coSt or expense, howsoever arising, which occurs by reason of an unauthorized release ofbaT*rdous' materialsm' counec~on' with' po'aattee' 's operations under this p~,,~it or in violation of this chapter, except as arises from the Cites sole willful act or sole active negligence. PART VII INSPECTIONS AND RECORDS VILO1 Ins_nections by_ the City_ The City may conduct inspections, at its discmi°n, for the purpose of ascertaining compliance with this Chapter and causin~ to be corrected any conditions which would ~,0nstitute any violation of thl, Chapter or of any other law affecting the Storage ofhs-*rdous materials. P~mittees nre not required to disclose the identity of~n-*,zious materials protected as trade secrets pursuant to federal or state htw to anyone other than the official designnted by the City 28 to receive SUch inform~on, except in the case of an emergmcy rospome or sn unsuthorized release related to the storage facility in which the trade secret macvlsi is contained. Therefore, course of the City's inspections conducted by other tha~ the Civ/officisl so dexi_.o~ted. Whenever necessary for the purpose of in~'estigeting or enforci the provisions of this Chapter, or whenever any enforcement officer h~s reasonable c~u~e tO believe th~ there exists in any smicture o~ upon any premises, any condition which cor~iiiates a violation of this Cl~apter, said officers may enter such structure or premises at all reasonable times to respect the same, or to perform any duty imposed upon any of ssid respective offices by hw; provided that if such structure or premieres be occupied, the officer shall first presenI proper cred~tials and request entry, and further provided, that if such structure or premises is unoccupied, the officer shall first mske a reasormble attempt to contact a respons~ie person from such firm or corporation and reqUest entry, except in emergency circumstances, ffsuch entry is refused, the officer seeking entry shsl! have recourse to every remedy provided' by law to secure entry. Inspections bv the Cit~ - Discretionary Ail inspections specified herein shall be at the discretion oftbe City and nothing in this chapter shall be construed as requiring the City to conduct any such inspection nor shall any actual inspection n le imp a duty to conduct Other i ectio Furthermore, nothing in this Chapter shall be construed to hold the City or any officer, employee or represen~ive of the City responm~ole for any damage to persons or property by reason 29. or VILO2 Ins_neefloes by_ Permi.,.~ The l~s m~l:ee shstll conduct re~j~ J~:g~-~ons of its owll ~lc~es to nsStLre co~p]~snce with thi~ Chapter and sh~ll m~i,,~aln logs.or fil~ reports in accordance with its I4,--~dous Materials Business Plan. The inspector conducting such inspections shall be qualified to conduct such inSl~Onq. In addition t(~ the inspections specified above, the City may require the periodic employment of special inspectors to conduct an audit or assessment of p~rmktee's facility to make a hazardous mamrial safety evaluation and to det,,,~h,e compliance with the provisions ofthi.q Chapter. A.. The special inspector ~ be a qU~lh%d person or finn who shall demonstrate expertise to the satisfaction of the City. R The special inspection report shall include an evaluation of the facilities and recomme~dations conzistent with the provisions of this Chapter where appropriate. A cop.y of the report shall be fried w~th the Cit~ a.t the same time that it is submitted to verminee. ' ' C. Permittee sh~ll. :w~thln thirty (30) days of said report, file with the City a plan to implement all recommendation, or shall demonstrate to the satiff-action of the City why such recommendations.need not be implemented. VIL04 .Substituted An inspection bY an employee of any other public agency may be deemed by the City as a substitute for any requirement above. VILOS Mnintennnee'of Ree~fda All records required by this Chnpter shall be maintnined by the l~u~iiee for a period of not less than three (3) years. Said records shall be made available to the City at all reasonable hours and upon reasonable notice. PART vm APPLICATION FOR PKRM1T rm.01 Pta:mit Any person, rum, corporati°n or other entity which stores any l~dous material shall obtain and keep current a Hazardous Materials Storage Permit issued pursuant to this Chapter. One such permit shah be issued for a single facility. Additional approvals by the City shall be Obtained for any storage facility thereaRer connected, installed, oonstmcted, repaired as required by Section ITl.06, substat~tinlly modified, replaced, closed, or removed, or for any change or addition in. hazardous materials stored, not in accordance with the prior approval of the C/ry. Storage of new or.different hn;nrdous materials shall requ/re the prior add/tional approval by the Application for a new, amended, or renewed l~mlt or an additional approval shah be made to the desi?sted officer on the form provided by the C/ry. In additi°n to the/nformation required by such form, applicant shall submit the Hs=*rdous Materials Business Plan requhed by Section ' 31 the pernnt qu~nf~t~ InT.t requested to be ~ed for each storage facility. The officer to whom an applicntion for a new or ~ pc[mit is. made n~, nudce ~ch investisadon nfthe applicant and the Foposed facility or acfi~it~ u such ~oer deems necessary to carry out the purposes of this Chapter. A permit sh,II not be approved until the issuing officer is sa/i~ed that the storage facility adequately c~nforms to the provisions of this Chapter. If the officer to whom application has be~m made finds that the proposal does not comPletely conform to the provisions of this Chapter, the officer may approve a provisional poorest, subject to conditions to be imposed by the officer, whe~ such a provisional permit is feasible and does not appear to be detrimantal to the public interest. The applicant must be infonnod in writing of the reasons why a full term permit was not issued. In no case shall the officer be less reslrictive than the requirements set forth in Div 20 of the California Health and Safety Code, Chapter 6.7. A T?mporary Permit for storage may be. issued Where storage does not ex~d thirty (305 days and occurs no more frequently fh,q once every dx (6) montlu. The Containment Standards of Part TTT, the Hazardous Matefiah Business Plan of Part IV and the Inspection and Records requirements of P~rt VII may be modified as appropriate'under these circumstances for the storage of hazardous mnteriais on a non-re, far temporary basis. 32 Upon. the approval of a temporary, provisional, or full term permit by the officer and upon the pa/meat of any applicable fee, the officer shall issue and aeliver the p~.;i to the applicant. Such pomit shall contain the followin~ information: 1. The name and address of the pennittee for pUrpOses of notice and service of ' pr0ces~; 2. The address of the facility for which the l~i~i/s hsued; "Authofizafionofthestoragefaciti~s)approvedunderthepermit, thepermi! quanfil~- l/mit(s) and the approved hs~,~rd class or classes for the s~ora~e 4. The date the p~mit is effective; 5. The date of expiration; 6. When applicable, a des/l~,ation that the p~ii is provisional or temporary: ?. Any special cond/fio~s of the permit. B. Re~rds The officer shall keep a record of all permits issued and all conditions allayed therelo. When a request for an additional approval is filed as r .~uired by Section VHI. oI, the procedures set forth in this Ch~er for an applica~/on for a perm/t shall also apPly to an application for an additional approval. Each application for an add/tiona] approval shall be aCCOmpanied by an appropriale amendm~ to the HMBP. 33 'B. If the additional approval request is for closure of a storage lira'S, pemlittee ~ apply for approval to close such storage facility not less than thirty 00) day~ prior to the termination of the stbrage of hazardous materials a/the storage facility. Such closure shall be in a~cofdance with a closure plan which des~n~es pro0edur~ for termin~fin~ the Storage of hay~rdous materials in each storage facility in a m~n~r that: a. Minimizes the need for further maintenance; and b. Controls to the extent that a threat tO public health, safety and welfare or io the environment from residual ha,~'dous 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 the City if there are special cirimmstanr~ requiring' tach waiver. · ' A permit may be issued, for aterm not to exceed five (5) years, excepting provisional permits which may be issued for any period of. time up to six months and temporary pe~,nits which may be issued for no longer than thirty (30) days. Every application for the renewal of a permit or exteusion of a provisional pemdi'shall be made at least thirtT'(30) days prior to the expiration date of such permit.: Ifa timely application for renewal has been submitied, the permit shall remain in effect until the City has made its determination pursuant to Section VILLI 1 and any administrative appeal pursuant to Part IX has 34 The City shall make a determination with regnrd to any application for a permit, an additional approval, or a renewal, within ninety (90) days alter the date that the application has been completed or complinnce with the appropriate provisions of the Cnlifomia Environmental (?~!i~y Ac~ (CEQA), has been COmpleted, whichever occurs later. This time limit may be fin'ther extended by mutual a~'eeme~t between the City and applicant. VIlL12 Fee~ The City shall establish fees sufficient to recover its costs in administering this Ch~er and no application shall be accepted unless and until the'fees have been paid. All permit fees delinquent for ~ (30) days or more ,hall be subject to an additional charge to be determined by the City which shall be added to the amount of the fee collected. No refund or rebate of a p~,mit fee shall be allowed by reason of the faot that the permit is.denied, or the permittee discontinues the activity or use of a facility prior to the · expiration of the t~,,~, or that the permit is suspended or revoked prior to .the e.,~irat/~n of the tom. The permit may be transferred to new owne~ of the same business only if the new owners accept responsibilit~ for all obligations under this Chapte~ at the time of the transfer of the 35. and dooument such transfer on a form provided by ~ City ~ thirty (30) days before the transfer of ownership of the b-elness. Such transfer and transferee sb~nll be subject to the approval of' the' City. VIILI4 EffectiVe Dnte of Permit No permit shall become effective uniil the permit hns been signed and accepted by the permittee. Where the p. ermittee is a company, firm, corP°rn/ion or other entity, the acceptance must be si~ned by a person having the legal authority to bind the pennit~ee. PART IX DENIAL If the officer to whom application has been made has cause to deny the application and determines that it would not be feasible ~r in the public interest to approve a temporary or provisional p~mlt, then the officer shah deny the application. DL02 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 be mbject to revocation pursuant to Pan X. IX.03 Tr~nsmt~l of The d~on to d~ ~fi~ ~tl ~ ~ to ~ ~p~ ~ ~n~ ~ ~ ~dln~ u~n ~ch ~ d~ ~ ~. A~ to C~ Admini~tor ~ ~ 00) d~ ~ ~ d~e of d~o~t of~e d~on ~ ~e ~ ~ a~d~ ~ S~on ~.02, the apph~ my ~ ~ ~ii~g to te C~ ~shator,. ~i~g f~ p~m~ the ~o~d or ~ for ~e a~. ~e co A~mtor shall ~ a ~e ~d pla~ Dr ~e h~g on ~e ap~ ~d ~ no~ the apph~, ~ ~ of m~ date ~ ~e not ~ ~ tm (I0) wor~ ~ ~ ~e date the ap~ w~ r~M ~ the C~ ~Wuator. ~e h~ ~ ~ ~n~ ~ ~ (30) ~ ~ ~e ~te ~e ap~ ~ r~ ~ ~e CiW i~tor. ~ ~e hmg on ~e ~ ~e H~g ~ my ~ ~e ~ b~ to ~ offic~ for a n~ ~on md d~o~ m~ a~ the d~ion of ~e ~g ~, my ~0~ a ~i~ ~ru~ ~ ~o~d~ ~ S~on ~.05 or my appro~ ~e ~ or ~out ~fiom. ~e d~on of ~e H~ ~ ~ ~ ~e ~ ~m, ~on 1 ~.5. ~t to C~a CMe of C~ ~m ~on 1 ~.6, my ~on for ~ ~ s~all ~ t~ not lat~ t~n m~ (~) da~ ~ ~e H~g ~ ~m Rs ~ d~on. ~ ~om of~a CMe ofC~ ~ ~on 1~.6 sh~ app~ to ~y tach a~oa 37 X.OI I~A.RT X ~nIAL ACTION Grounds for Rem,,alll ActiOn acts or omissions of the permittee, either before or gfler a permit is issued: A. 'X.02 Unless the Cit~ Administrator finds that an immediate suspension under Secti°n X.04 is necessary to protect the public health, safety or welfare l~om imminent danger, the officel: shall issue a notice of noncompliance: .4. For failure to comply with the provisiom of this Chapter, any permit conditions or any provisions of the Hs-ardOUS Materials Business Plan; or Before ir~iituting remedial action pursuant to Section X.O1.D such notice shall be sent 38 Fraud, willful misrepresentation, or any willful inaccurate or false statemem in applying for a new or renewed permit;~ Fraud, willful misrepresentation, or any willful inaccurate or false statement in any. report required by this Chapter; Failure to abate, correct or re, they any noncompliance within the time specified in the notice of noncompliance; Failure to correct conditions constituting an unreasonable risk of an unauthorized ' discharge of hn:,~*rdous materials within a reasonable time after notice from a governmental entity other than the Ciiy. Failure to abide by the remedial action imposed by the City. Notice of Noneom.nlil~gl. 'A p~.~ may be subjected m remedial action for anyofthe foil°win~ ~'a~ising from the A notice of hearing shall be given to the permittee by the City Admin~hntor, 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 statement 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 Hear/n_o Whenever ti~ City Admini.m'ator finds that' suspension of a permit prior to a hearing for remedial action is necessary' to protect the public health,, safety or welfare from imminent danger, the City Administrator may immediately suspend any permit'pending the hearing for remedial action. The'City Administrator sh," immediately notify the permittee of such suspension by having a w, itten notice of the suspension personalty served on the permittce. Permittee shall have the opportunity for a prelhninmy hearing with regard to such.pre-beating suspension within three (3) working days after receiving w~itten notice of such suspension. If the Hearing Officer, after the hearing, finds that cause exists for remedial action, the Hearing Officer gh~!! im~o~ se one or more of the following: A. A warning; B. An order to correct the particular noncompliance specified in the notice issued pursuant to Seclion X.02; C. A revocation of the permit for the faciiity Or for a storage facility and approval of a 39 provisio~ ~ D. Suspension of the pe,,.~ for the facilit~ or for ~ s~orage facility for a specified pedod not to exceed siz (6) momh~; ~ E. Modification or addition ofconditions of the permit; - F. Revocation of the permit with no reapplication permitted for a specified periodnot to exceed five (5) years. tithe grounds for remedial action are based on Section X.01 C, D or E end if such grounds are limited to one storage fee'dity, the remedial action taken shell be limited to tbet storage facility. ' X.06 - Trnnsmittnl .of D~el,lo,~ Withi. t= 00) d~ys ater the h~i.g the X-X~g Off~ s~ ~d~ a ~itt~ opt. ion, ~t~ti.g the findings, upon which the decision is based and the action taken, if any. The decision of the Hearing Officer shall be the final admini~t,~aive determination and is subject to judicial review in aceordanee with California Code of Civil Procedure section 1094.5. Pursuant to california Code of Civil Procedure section 1094.6, any petition for judicial review shall be filed not later than ninety (90) day~ after the Heating Officer makes its final decision.. The provisions of California Code of Civil Procedure section 1094.6 shall apply to any such action. X.07 'Authority_ After Sus_nenslon. Revocation'or The suspension, revocation or expiration of a Pe~..~t issued under this Chapter shall not prevent any proceedings to investigate such permit, any remedial action against such pe~'~,dttee or any proceedin~ against such permittee. day after notification of ~ach suspension or ~v°cafion. PART XI tlEARING PROCEDURE in any hearin~ under this Chapter, all parties involved shall have the fight to* offer testimonial, docum~ntary, and tansible evidence bearing on the issues, to be represented by counsel, and to confront and cross-examine any wimesses against them.' Testimonial evidence may be sworn or m~vom, although the Hearing Officer may consider ~nnn te~imony to be more c~dibl~ Any hearing under this Chapter may be continued by the Hearin~ Officer .for a reasonable time for the convenience of a party or a wimeas. The City Si,an be re~nmsible for making a record of the hearing either by aUdio or video tape. The Hearing Officer shall lodge th/s record with the City Clerk, who shsl! maintain the record for.one, (1) year at, er the conclusion of the hearing. If requested in writing by the applicant, the Cit~ shall have the hearing record trans°n'bed at the 'applicant's C°st. The · ' may require that a reasonable deposit in the amount of the estimated cost ofpX~Pamtion accompany any request for a transcribed record. The Hearing Officer shall nile on the admissibility of any evidence. F ,omml roles of evidenceshall not apply, and the Hearing Officer .,I,.~ not be bound by the California Evidence Code or the Federal Rules of Evidence. Documentary evidence shall be marked for ide~ilu%ation purposes, and copies of all 41. · evidence shall be maintained by the City Clerk wi~h the record oftl~'hea~ for one (1) year after the conclusion of the heafin& : ~ll notices required IV'this Pan shall be se~ by ceded mail, po..mSe pepaid, to .the applicant or pG[u~iltee at the address ~iven for.purposes of not/ce on the appl'icafio~ or permit or delivered to the perm/tree personally.' ' PART Xll ENFORCEMENT Criminal sanctions may be sought for violations of this Chapter, to the extent available under ex/st/nE .law. xn,02 ~,~y person, firm, c~rp~ration or oth~ entity wh~ intentionally or n~giigcntly violat~s any pr~vision ofthis Chapter, (except that an unauthoriz~l release which is rccordabl¢ and in ¢cnnplianc~ w~th $ ~on VI.O ! shall not b~ a vitiation ~f this Chapt~ for pur~s~s of this · Section) or fails'to comply with any order isSUed thereunder, shall be liable for a civil penalty not to exceed five hundred dollars ($500.00) 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 det~mLnin8 the penalty, the court shall consider ali relevant circumstan~s, including, but not limited to, the foflowing: A. The extent of harm or potential harm caused by the violation; ' 42 The nature ami persistm~ of the violation; The length of time over which the violation occurred; The frequency of past violations; F. . Corrective actions, if any, taken by the pe,',~ttee. In any civil action brought pursuant hereto, in which'the City prevails] the court Shah deteru~ne and impose reasonable expenses, including a~torneys' fees, incurred by the City in the investigation and prosecution of the action. XII.03 Civil Action for A civil action may be instituted against any employer by any employee who has been discharged, demoted, suspended, or in any other manner discriminated ~i~t in t~ims or Conditions of employment, or fl~reatened with'any such retaliation, because such employee has, in good faith, made any oral or w~;~ten repor~ or complaint related to the enforcement of this Chapter to any ~ompany official, public official or union official, or has testified in any proceeding in shy way ~elated theretO. In addition to shy actual damages which may be awarded, damages shall include ~sts and attorn~--y's fees. The Cou~ may award punitive dam%~es in a proper ca~e. XIL04 Remedle~ No~ ~emeclJes und~ ~s ~o~ are J~ adci~on to and do not supersede or ~ any a~ an other ~emedjes, ~ oy cr~inal ~lBbleunder applicable laws. 43 XHL01 A. 3. · PART XII ML~CELLANEOUS The degree of protection required by this Chapter is comicleted reasonable for regulatory purposes. The standards set forth herein are minimal standards and this. Chapter does not impl~ that compliance will ensure that there will be no unauthorized release ofhn~zrdous material. This Chapter shall not create liability on the part of the City, any officer or employee thereof, for any damages that ~ from reliance on this Chapi~-r or any administrative decision lawfully made thereund~. All persons handling, storing, using, processing, and disposing ofhn~rdous materials within the City should be and are advised to determine to their own satisfaction the level of protection in addition to tha~ required by this Chapter necessary or desirable to ensure tlutt there is no unauthorized release of hazardous materials. This Chapter is not intended to create any different standard or obligation for the storage of carcinogens than is imposed for the storage of other hazardous materials. Hazardous materials are identifi.ed as carcinogens herein for publi.c record purposes only and the . identification of a mzt~erial ~s 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 expressly specified in this Chapter, nor shah such identification create any other duty or obli?tlon upon the City different f~om or additional to those duties or obligations applicable tO the storage of othe~ hazardous material-~. Guidelines approved by the City Admini~,-tor shall be-nmintained in the Office oftbe City Clerk. Such guidelines, in the erea.~addressed therein, shall ser,~ as an interpret~ion of thi~ Duties are Disere~nn~ry_ ' ' Subject to the limitations of due process, notwithstanding any other provision of this ~ode whenever the words "shs!!' or "must" are used in establishing a respunm'bility or duty of the City, its elected or appointed officers, employees, or agents, it is the legislative intent that such words estab&h a discretionary respon.~"oility or'duty requiring the exercise otjudsem~t and discretion. XIII.04 Conflict With Other Law~ 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. lfthe storage facility is requi~ed to have a permit from the Deparh,,ent of Health Services under Hesith and Safety Code Section 25100 et ~1., it shall be exempted any provision of this Chapter which is cove~d by the regulalions adopted under the above cited stm'ute. C. Wbenever any provision of this Chapter conflicts with the Fire Code as adopted by the. City, the micter shall prevail. 45 If any section; subsection, sentence, clause, or phr~e of this Chapter is for any reason held to be invalid or unconstitutional by a decision of any court of compotent jurisdiction. ~aeh dec. on shall not affect the validity of the remaining POrtions ofthe Chapter. The City Council hereby declares that it would have passed this Chapter and each and every ~x~tion, SUbsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to'whether any PO~on of the Chapter would be SUbsequently declared invalid or uncor~i~ationsl. The City ~ require its permit applicants and permittees to fill out, in addition to forms required for the City's own purposes under this Chapter' standardized forms based on the application form and annual report forms prepared by the Santa Clara Counts Certified Unified Program The City will forward these forms to the appropriate state agency. However, where any of the information required on SUch standardized forms is claimed by the permit applicant or perminee to be a trade secret, the permit applicant or permitten shall leave that portion of the form submitted to the City blank, except to indicate the words "trade secret", and the permit appficant or po,~ttee.shall thereafter, within ten (10) days aider SUbmitting the incomplete form to the City, SUbmit the completed form including the trade secret information directly to the appropriate state agency. 46 XIV. OI XIV.02 ,1998. As of the effective date of this Chapter, a H*~ous Materials Storage Permit for a facility must be obtained prior to the installation or use of any new storage 2. The H--ArdOUs Material Business Plan must be filed a~ the time of application for 8 I-1'*TArdous Matedsl Storage P,~,uit. Existin_~ Stora~_e F~Leiliti~q 1. A facility which has any existing hn~mrdous materiaJs storage facilities or had obtained a building permit ~or such a storage facility prior to the effective date of' this Chapter, and to which no new storage facility is added, shall have one (l) year fTom such effective date to file a completed application for a H--nrdous Materials Storase Permit? including a monitoring plan in ~cordance with Section m. o3. The t'i'~-' ]bnita.~ion.~-or determination specified in Secti°n VII:Z:] ]. shat1 not apply but the applicant .qhnll Im deemed to have a provisional permit of indefinite terms, until the City makes such det~.~fination. Notwi~ the above, a ~--~dous Material InVentory Statement, if Chapter. 47. 1, RHONDA PELLIN, City Clerk of the City of Gilroy, do hereby certify that the attached Ordinance No. 98-10 is an original ordinance, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 27th day of April, 1998, at which meeting a quorum was present. IN WITNESS WHEREOF, 1 have hereunto set my hand and affixed the Official Seal of the City of Gilroy this 6th day of May, 1998. City Cl~erk of the City of Gilroy (Seal)