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Ord 1586 - ORDINANCE ADDING CHAPTER 35 TO THE TOWN CODE REGULATING STORAGE OF HAZARDOUS MATERIALSORDINANCE NO. 1586 ORDINANCE ADDING CHAPTER 35 TO THE TOWN CODE REGULATING STORAGE OF HAZARDOUS MATERIALS Tile Town Council of Los Gatos hereby ORDAINS: SECTION 1. Chapter 35 is hereby added to the Town Code, as follows: "CHAPTER 35 STORAGE OF HAZARDOUS MATERIALS Article I. General Provisions Sec. 35.010.005 Purpose The purpose of this chapter is the protection of health, life, resources, and property through prevention and control of unauthorized discharges of hazardous materials. Sec. 35.010.010 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 risk of such unauthorized discharge. (b) The Enforcing Officer shall have the discretion to exempt an applicant from any specific requirement of this Chapter, other than the requirement for secondary containment in underground storage facilities, except as provided in Section 35.030.020(c)(4), or to require applicant 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. Sec. 35.010.015 Specific Obligation. (a) Any person, firm, or corporation which stores any material regulated by Section 35.020.010 which is not excluded by Section 35.020.020 shall obtain and keep current a Hazardous Materials Storage Permit. (b) All such hazardous materials shall be,contained in conformity with Article III of this Chapter. (c) The storage of such hazardous materials shall be in conformance with the approved Hazardous Materials Management Plan. Sec. 35.010.020. Definitions. Unless otherwise expressly stated, whenever used in this Chapter, 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 Chapter. (b) Enforcinc0fficer means the agent designated by the Town to administer this C —a— or any designee of such agent. (c) Facility means a building or buildings, appurtenant structures, and surrounding and area used by a single business entity at a single location or site. (d) Hazard class means Explosives A, Explosives B, Explosives C, Blasting agents, Flamm — a - `e i'quids, Combustible liquids, Flammable solids, Oxidizers, Organic peroxides, Corrosive materials, Flammable gases, Nonflammable gases, Poisons A, Poisons B, Irritating materials, Etiologic agents, Radioactive materials, Other Regulated Materials (ORM) 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. (e) Hazardous material means any material which is subject to regulation pursuant to rtic e o t is Chapter. A mixture shall be deemed to be a hazardous material if it either is a waste and contains any material regulated pursuant to Article II of this Chapter, or is a nonwaste and contains one percent (1%) by volume or more of any material regulated pursuant to Article II of this Chapter. (f) Permit means any Hazardous Materials Storage Permit issued pursuant to this Chanter as well as any additional approvals thereto. (g) Pe rmit quantity_ limit means the maximum amount of hazardous material that can be stored in a storage facility. 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 pursuant to this Chapter and any authorized representative, agent or designee of such person, firm, or corporation. (i) P 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 immediate contact on its inner surface with the hazardous material being contained. -2- (k) Product-tight 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. (1) Secondary containment means the level of containment external to and separate from e primary containment. (m) Sing le- walled means construction with walls made of but one thickness of material. amfnased; coated, or clad materials shall be considered as single - walled. (n) Storage facility means 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 of hazardous materials at a facility. (o) Sump, means a pit or well in which liquids collect. (p) Unauthorize dis charge means any release or emission of any hazardous material whicF not con or - m o the provisions of this Chapter, unless such release is in accordance with tshe- welease regulations of the Day Area Air Quality Management District and -- California Air Resources Board, with a National Pollutant Discharge Elimination System Permit, with waste discharge requirements established by the Regional Water Quality Control Board pursuant to the Porter Cologne Water Quality Act, or with local sewer pretreatment requirements for Publicly Owned Treatment Works. (q) Wet floor means a floor which is used to routinely collect, contain or maintain st — FTing liquids or to transmit standing liquids on a more or less 'continuous basis. Sec. 35.010.025 Professional Assistance for Determ inations. Whenever the approval or satisfaction of Enforcing Officer may be required in this Chapter for a design, monitoring, testing or other technical submittal by an applicant or permittee, Enforcing Officer may, in its discretion, require such applicant or permittee, at such applicant's or permittee's sole cost and expense, to retain a suitably qualified independent engineer, or chemist, or other appropriate professional consultant, acceptable to Enforcing Officer, for the purpose of evaluating and rendering a professional opinion respecting the adequacy of such submittal to achieve the purposes of this Chapter. Enforcing Officer 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. Article II. Materials Re ulated. Sec. 35.020.005 Materials Regulated The materials regulated by this Chapter shall consist of the following: (a) Any material listed as a hazardous and /or extremely hazardous -3- 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 Protection Agency (EPA) pollutants, 40 Code of Federal Regulations, 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 liquid or a Class IIIA combustible liquid; or (d) Any material which is listed by the Director of the Department of Industrial Regulations in Title 8, California Administrative Code Section 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. These exclusions shall be as follows: (1) Materials recognized in the official United States Pharmacopoeia, official Homoeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them if such materials are intended for use in the diagnosis, cure, mitigation, prevention of disease in man or other animals; hormones; enzymes; and aflatoxins. (2) Aluminum salts; Asphalt fumes; Atrazine; 8enomyl; 8is (dimethylthiocarbamoyl) disulfide; Boron oxide; 4- tert - Butyl- 2- chlorophenyl- methyl methylphosphoramidate; Camphor; Carbon black; 2- Chloro -6 (trichloromethyl) pyridine; Clopidol; Coal tar pitch volatiles; Cotton dust; Dibenzoyl peroxide (Denzoyl peroxide); Dicyclopentadienyl iron; 3,5- Dinitro- o- toluamide; 2,6- Di -tert- 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 - disphenyl (eutectic mixture), vapor; Phtalic anhydride; m- Phtalodinitrile; Poyltetrasluoreoethylene .Decomposition products; Rhodium salts; Ronnel; Rosin core solder; Roterione, commercial; Silica, Soapstone, Talc; Tantalum oxide; Terphenylis; and 4,4'- Thiobis (6- tert- 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,�6uyV.; not, determined to be hazardous due to the deliberate failure of tjl 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 storing it, through testing or other objective means, to be likely to create a significant potential or actual hazard to public health, safety or welfare. This subsection shall not establish a requirement to test for the purpose of this Chapter. -4- Sec. 35.020.010 Exclusions This Chapter does not apply to the following: (a) Certain Elemental Metals The following elemental metals included within the purview of Section 35.020.005 shall not be considered hazardous materials for purposes of this Chapter unless they are stored in a friable, powdered or finely divided state: Aluminum, Beryllium, Cadmium, Chromium, Copper Lead, Manganese, Molyb olenum, Nick , Rhodium S leer, Te lutiu� Tin, and Zinc. Furthermore, Tantalum, T ungsten, an'Uc U5 um siall exclude 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 work station in a quantity reasonably required for use as determined by Enforcing Officer under the circumstances. (e) Exen�tion. The Enforcing Officer shall exempt any material from the requirements of this Chapter where it has been demonstrated to the satisfaction of Enforcing Officer that 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. Article III Containment Standards Sec. 35.030.005. Containment of Hazardous 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 permit or approval shall be granted pursuant to this Chapter unless permit applicant demonstrates to the satisfaction of Enforcing Officer, by the submission of appropriate 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 contained therein. -5- All installation, construction, repair or modification, closure, and removal shall be to the satisfaction of Enforcing Officer. Enforcing Officer shall have the discretion to exempt an applicant from any specific requirement, other than the requirement of secondary containment in underground storage facilities, except as provided in Section 35.030.010(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 publish health, safety, and welfare. The guidelines approved pursuant to Section 35.130.010 shall serve as an advisory interpretation of the provisions of this Article addressed in such guidelines. Sec. 35 .030.010 . 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) Monitoring Ca abi1it . All new storage facilities intrended'for the storage of hazardous materials which are liquids or solids at standard temperature and pressure (STP) shall be designed and constructed with a monitoring system capable of detecting that the hazardous material stored in the primary containment has entered the secondary containment. Visual inspection of the primary containment is the preferred method; however, other means of monitoring may be required by Enforcing Officer. 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. (c) Containment Requirements. Primary and secondary levels of containment shall be required for all new storage facilities intended for the storage of hazardous materials which are liquids or solids at standard temperature and pressure (STP), unless specifically herein exempted by Enforcing Officer. (1) All primary containment shall be product - tight. (2) Secondary containment: (i) All secondary containment shall be constructed of materials of sufficient thickness, density, and composition so as not to be structurally weakened as a result of contact with the discharged._hazardousmaterii s —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. (ii) In the case of an installation with one primary container, the secondary containment shall be large enough tc contain at least 110% of the volume of the primary container. a (iii) 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. (iv) If the storage facility is open to rainfall, then the secondary containment must be able to additionally accommodate the volume of a twenty -four (24) hour rainfall 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. (4) Variance. A variance from the requirement for secondary confa ment in an underground storage facility may be granted upon a written finding by the officer issuing the permit, which has been reviewed and approved by the Fire Chief that, based on the special circumstances applicable to the specific storage facility only, and not a class or category of storage facilities: (i) The requirements of secondary containment creates an unusual and particular hardship; and (ii) An equivalent or superior degree of protection is provided by the proposed alternative and the proposed alternative has been appropriately so certified in accordance with Section 35.010.025. (d) O verfill Protection Means of overfill protection may be required for any primary container. This may be an overfill prevention device and /or an attention - getting high level alarm. (e) Separation 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 separated in both the primary and secondary containment so as to avoid intermixing. (f) Drains e S stem. Drainage of precipitation from within a storage facility containing hazardous materials which are liquids or solids at STP shall be controlled in a manner approved by the Enforcing Officer so as to prevent hazardous materials from being discharged. No drainage system will be approved unless the flow of the drain can be controlled. -7- Sec. 35.030.015 Existing Stora e f acilities. Any storage Facility in existence as of the effective date of this Chapter, or any storage facility for which a building permit was issued prior to the effective date of this Chapter, which does not meet the standards of Section >' 35.030.010, may be permitted pursuant to this.;Chkapter "!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 Enforcing Officer as set forth herein. (a) A monitoring plan for each such storage facility containing hazardous materials which are liquids or solids at STP shall be submitted to Enforcing Officer as part 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 inspection is not practical, an alternative method of monitoring each storage facility on a semiannual or more frequent basis may be approved by Enforcing Officer. (c) Alternative method(s) of monitoring may include but are not limited to: pressure testing of piping systems, groundwater monitoring well(s) which are downgradient and adjacent to the storage facility; vapor analysis 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 sampling frequency shall be approved by the Enforcing Officer. (d) Such monitoring devices and methods, as approved by Enforcing Officer, shall be installed and operating within six (6) months of the issuance of a provisional permit in accordance with Section 35.030.025 and Section 35.140.010(b)(1). Enforcing Officer may grant an extension of this compliance date; however, such extension shall not exceed one (1) additional 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 storage facilities is subject to review and modification or termination by Enforcing Officer. Whenever there has been any unauthorized discharge. It shall also be reviewed by the Enforcing Officer each time the permit is renewed. In determining whether continued storage in such storage facility is suitable, Enforcing Officer 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 accordance with this Section must be upgraded to comply with this Chapter or be closed in accordance with Section 35.030.020 below within one (1) year of a decision not to issue a full term permit. An extension of time for compliance with this subsection, not to exceed one (1) additional year, may be granted by Enforcing Officer. Sec. 35.030.020 Out of Service Stora e Facilities. (a) No storage facility shall be abandoned. (b) Storage facilities which are temporarily out of service, and are intended to be returned to use, must continue to be monitored and inspected. (c) Any storage facility which is not being monitored and inspected in accordance with this chapter must be closed or removed in a manner approved by Enforcing Officer in accordance with Section 35.080.040. (d) Any person, firm or corporation having an interest, including a leasehold interest, in real property and having reason to believe;:thatr'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 date of this Chapter. (e) Whenever 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 (JO) days of its discovery. A closure plan shall conform to the standards specified in Section 35.080.040. Sec. 3 5.030.025 . Monitoring (a) Monitor Methods. Monitoring methods shall include at least one system for 4 detecting� age from the primary container. A monitoring system capable of detecting that the hazardous material stored in the primary containment has entered the secondary containment shall be provided. Visual inspection of the primary containment is the preferred method; however, other means of monitoring may be required by Enforcing Officer. 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, Testing and Inspection. Every permittee under this Chapter sha provide testing, monitoring if applicable), and inspections in compliance with the Hazardous Materials Management Plan and shall maintain records adequate to demonstrate compliance therewith. Sec. 35.030.030 Mainte Repair or Rep lacement. (a) Permittee will carry out maintenance, ordinary upkeep, and minor repairs in a careful and safe manner. No permit or other approval will required for such maintenance and upkeep. �--- (b) Any substantial modification or repair of a storage facility other than minor repairs or emergency repairs shall be in accordance with plans to be submitted to the Enforcing Officer and approved in accoredance with Section 35.080.040 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 immediate repair is :RZ required to prevent or contain an unauthorized discharge 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 35.080.040 by submitting drawings or other information adequate to describe the repairs to Enforcing Officer. (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 35.030.010. Sec. 35.0 Hand Iinc2. (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 out 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 result in an unauthorized discharge. Sec. 35. Secured Facilities Access to the storage facilities shall be secured by means of fences and /or locks. The access to the storage facilities shall be kept securely locked when unattended. Sec. 35.030.045 Emergency E ui ment. 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. Sec. 35.030.050 PostinU of Emergency Procedures. Simplified emergency procedures shall be posted conspicuously in locations where hazardous materials are stored. Article IV. Hazardous Materials Management Plan. Se 35.040.005 Hazardous materials Management Plan. Each applicant for a permit pursuant to this Chapter shall file a written plan, for Enforcing Officer's approval, to be known as a Hazardous Materials Management Plan (HMMP), which shall demonstrate the safe storage and handling of hazardous materials. The HMMP may be amended at any time with the consent of Enforcing Officer. The HMMP shall be a public record except as otherwise specified. Approval of the HMMP shall mean that the HMMP has provided adequate information for the purposes of evaluating the permit approval. Such approval shall not be understood to mean that the Enforcing Officer has made an independent determination of the adequacy of that which is described in the HMMP. -10- Sec. 35.040.010 Standard Form HMMP The standard form Hazardous Materials Management Plan must be submitted unless the facility qualifies as a minimal storage site under Section 35.040.015 below. The HMMP shall include the following: (a) Facility Descri tion. (1) General Information The HMMP shall contain the name andtaddressof 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 operation, and principal business activity. (2) General Facility Description. The HMMP shall contain a map drawn at a legible scale and in a format and detail determined by Enforcing Officer. 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 Enforcing Officer may also require information as to the location of wells, flood plains, earthquake faults, surface water bodies, and /or general land uses (schools, hospitals, institutions, residential areas) within one (1) mile of the facility boundaries. (3) Facility Storage Map (i) The HMMP 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 Enforcing Officer. Enforcing Officer shall take reasonable precautions to ensure the confidentiality of the information provided pursuant to this subsection. The Facilities Storage Map 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: A. a floor plan to scale and the permit quantity limit; B. for each_nonwaste hazardous material which is stored in a quantity yreter than the quantities specified in Section 35.050.010(a), the general chemical name, common /trade name, major constituents for mixtures, United Nations (UN) or North America (NA) number, if available, and physical state. For each waste hazardous material stored in any quantity within the storage - facility, the presence of wastes shall also be indicated; C. 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: Quantit,Z Range Number Range Am ounts 1 Up to and including 500 pounds - For solids, 55 gallons for liquids, and 200 cubic feet at STP for compressed gases; 2 Between 500 and 5,000 pounds for solids, 55 and 550 gallons -For liquids, and 200 and 2,000 cubic feet at STP for compressed gases; 3 Between 5,000 and 25,000 pounds for solids, 550 and 2,750 gallons for liquids, and 2,000 to 10,000 cubic feet at STP for compressed gases; 4 Between 25,000 and 50,000 pounds for solids, 2,750 and 5,500 gallons for liquids, and 10,000 and 20,000 cubic feet at STP for compressed gases; 5 More than 50,000 pounds for solids, 5,500 gallons for liquids, and 20,000 cubic feet at STP for compressed gases: D. for materials not regulated under this Chapter, but regulated under the Uniform l=ire Code, such as radioactives or cryogens, or for materials stored in storage facilities exempted by Sections 35.130.020(a) and 35.130.020(b), the Enforcing Officer may require that the hazard class or classes and the quantity range of each such hazard class, using the quantity ranges listed in subsection C above, be provided; E. for tanks, the capacity limit of each tank, and the hazardous material contained in each tank by general chemical -12- name, common /trade name, major constituents for mixtures, United Nations (UN) or North America (NA) number, if available, and physical state. (ii) 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 Enforcing Officer for law enforcement purposes only and shall not be made public. Public disclosure of this information could endanger the security of the facility or present a clear danger to public health and safety. Enforcing Officer shall not disclose this information to the public _without the consent of the permittee or permit applicant unless oredered: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 shall be given by Enforcing Officer to permittee or permit applicant. However, Enforcing Officer shall be under no duty 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). (iii) 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,_requiread'to be amended pursuant to Section 35.50.005. (b) Hazardous Mater Inventory Statement A Hazardous Materials Inventory Statement shall be filed in accordance with Article V of this Chapter. (c) Separation of Materials. The HMMP shall contain a description of the methods to be utilized to ensure separation and protection of stored hazardous materials from factors which may cause a fire or explosion, or the production of a flammable, toxic, or poisonous gas, or the deterioration of the primary or secondary containment. (d) Monitoring Program. The HMMP 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 conducted by the permittee. (e) Pecordkee inq Forms. The HMMP shall contain an inspection check sheet or log designed to be used in conjunction with routine inspections. The check sheet or log shall provide for the recording of the date and time of inspection and, for monitoring activity, the date and time of any corrective action taken, the name of the -13- inspector, and the countersignature of the designated safety manager for the facility or the responsible official as designated in the HMMP. (f) Emergency Equipment The HMMP shall describe emergency equipment availability, testing, and maintenance. (g) Variation in Information (1) Additional information may be required for the HMMP where such information is reasonably necessary to meet the intent of this Chapter. (2) Requirements for information in the HMMP 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 Enforcing Officer in lieu of such component(s). The Enforcing Officer may give deference to any approval of such plan by the other public agency. S ec. 35.040.015 Short Form HMMP - Minimal Stara e 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 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 location 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 HMMP 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 5210 of Title 8 of the California Administrative Code, as amended. This provision will be satisfied by the submittal to Enforcing Officer 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 the California Administrative Code, as amended. -14- (4) Information describing that the hazardous materials will be stored in a suitawble =,manner and will be appropriately contained, 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 pursuant to Section 35.050.020 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 to be publicly disclosed shall identify all carcinogens not claimed to be trade secrets and it shall indicate the number of carcinogens claimed to be trade secrets. Article V. Hazardous Materials Inventory Sec. 35.050.005 Hazardous Materials Inventory Statement A Hazardous Materials Inventory Statement (HMIS) shall be filed with Enforcing Officer in accordance with this Article. Any person, firm, or corporation which stores any hazardous material in an amount which is equal to or greater than the quantities specified in Section 35.050.010(a) is required to file an HMIS. Such person, firm or corporation shall amend the HMIS within thirty (30) days of the storage of any hazardous material not listed thereon but required to be listed by Sectioon 35.050.010(a), or of an increase above the quantity range listed in accordance with Section 35.050.010(c) or required to be identified in accordance with Section 35.050.010(d). Sec. 35.050.010 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 quantity 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 gases. (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, United 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 Enforcing Officer. (2) For wastes: The Department of Health Services manifest for wastes or equivalent information, and the hazard class or classes. -15- (c) In addition, the HMIS shall state the aggregate quantity range stored at the facility of each hazardous material listed in terms of the quantity ranges stated in Section 35.040.010(a)(3)(i)5 2 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 5205 -5215 and Section 5219 of Title 5 of the California Administrative Code, as amended. This provision will be satisfied by the submittal to Enforcing Officer 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 5 of the California Administrative Code, as amended. (e) Where a claim for trade secret protection is made for any hazardous material pursuant to Section 35.050.020, the HMIS to be publicly disclosed shall indicate the number of_�Aaterials claimed to be trade secrets and the aggregate 01� quantity range stored�,,the facility for each such hazardous material stated in terms of the quantity ranges set forth in Section 35.040.010(a)(3)(i)B 2 -5. Where a claim - For trade secret protection is made for any carcinogen identified pursuant to subsection (d) above, the Carcinogen Registration form to be publicly disclosed shall indicate all carcinogens not claimed to be trade secrets and it shall indicate the(numbver of carcinogens claimed to be trade secrets. Sec. 35.050.015 Public Record The HMIS is a public record except that no trade secret shall be disclosed. Any request for a public record hereunder shall be submitted in writing to the Enforcing Officer responsible for administering this Chapter. Sec. 35.050.020 Trade Secrets (a) Permittee or permit applicant may make a claim for the protection of r the identity of any,hasardous' material which is its trade secret by filing a declaration under penalty of perjury on a form provided by Enforcing Officer, 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 material, its quantity range by storage facility, and all other information required under Section 35.050.010(b) must, subject to the approval of Enforcing Officer, be placed in a double keyed lockbox and maintained in at least two locations at the facility. One key shall be provided to Enforcing Officer at the time the permit becomes effective. The other key shall be maintained on site at all times, and readily accessible to permittee's designated emergency response person. Such emergency response person shall cooperate with Enforcing Officer in opening the lockbox at any time Enforcing Officer responds to an emergency or unauthorized discharge on the site involving the storage facility in which the trade secret material is contained. In the event that the permit designated emergency response person is not immediately available to assist Enforcing Officer emergency response personnel to open the lockbox, such Enforcing Officer personnel are authorized to break the lockbox. -16- (c) In addition to providing the lockboxes, the permittee or permit applicant shall provide information to the Enforcing Officer 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 material, at a level of specificity satisfactory to Enforcing Officer, and on a form provided by Enforcing Officer. The description must include health hazard information including remedies and countermeasures appropriate for emergency response and in case of human exposure to the trade secret material. Such description must be adequate to enable Enforcing Officer 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 Enforcing Officer, the 'trade secret information, together with all submittals pursuant to this Chapter, may be submitted to an independent chemical engineer or equivalent licensed professional, subject to approval by Enforcing Officer, who shall certify, in writing, 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 information relevant to the trade secret. All such submittals remain subject to Enforcing Officer's review and approval under this Chapter; or (3) Alternative Three. The trade secret information sought to be protected may be submitted to Enforcing Officer on a separate form or forms, - Y clearly and conspicuously marked or labeled ascontaining trade secret information, and said form or forms must be submitted only to an official designated by Enforcing Officer 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 Enforcing Officer of any and all liability resulting from disclosure of the trade secret in violation of this Article. (i) The Enforcing Officer shall endeavor to protect from disclosure any and all trade secrets which come into the Enforcing Officer's possession pursuant to this subsection. If an action is instituted under California Public Records Act for the release of such trade secrets, the permittee or permit -17- applicant shall be deemed a real party in interest in any such action. Notice of a lawsuit to compel disclosure shall be given by Enforcing Officer to permittee or permit applicant promptly upon receipt of such notice by Enforcing Officer. The permittee or permit applicant shall have the option to defend Enforcing Officer in any such action. The permittee or permit applicant shall indemnify the Enforcing Officer in any such action. The permittee or permit applicant shall indemnify the Enforcing Officer for all of Enforcing Officer's attorneys fees, costs and expenses incurred in any proceeding related to this Section, as well as for any judgment imposed pursuant to California Government Code. Section 6259. (ii) Any information reported to the Enforcing Officer, under this subsection which is exempt from disclosure pursuant to this section shall not be disclosed to anyone other than as required by law, except an officer or employee of the Enforcing Officer in connection with the official duties of such officer or employee under any law for the protection of health, or to contractors with the Enforcing Officer and their employees, if in the opinion of the Enforcing Officer such disclosure is necessary and required for the satisfactory performance of a contract for performance of work. (iii) Any person who by virtue of employment, contractual relationship or official position has obtained possession of or has had access to information, the disclosure of which is prohibited by this section, 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 tier own use or advantage, shall be guilty of an infraction. ( iv) Information certified by appropriate officials of the United States, as 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. (v) The Town Council shall, by resolution, adopt a procedure designed to prevent knowing or negligent disclosure of trade secret information. Such procedure shall indemnify which officials shall have access to the information, and the means by which access will be controlled and monitored. Trade secret information shall be maintained in secured facilities which are designed to prevent inadvertent or unauthorized access or disclosure. (vi) The confidential treatment, pursuant to this subsection, of the identity of such trade secret disclosed to the Enforcing Officer does not apply where there has been any unauthorized discharge related to such trade secret material which is reportable in compliance with Section 35.0.005 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 Enforcing Officer. -18- Article VI. Responsibility Sec. 35.060.005 Repo Unauthorized Dischar e. (a) Liquids and Solids at STP. As soon as any person in charge of a storage 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 Enforcing Officer of the occurrence as required by this subsection. (1) Confirmed Unauthorized Discharge (i) Recordable Unauthorized Discharge. Any recordable unauthorized discharge shall be contained and 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 recordable unauthorized discharge is any unauthorized discharge of a hazardous material which meets all of the following criteria: A. The discharge is from a primary containment to a secondary containment or to a rigid above ground surface covering capable of containing the discharge until cleanup of the hazardous material is completed; and B. 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 35.060.005(a)(1)(ii) below; and C. 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. D. An otherwise recordable unauthorized discharge does not need to be recorded if the discharge is not the result of the deterioration or failure of the primary container and the quantity discharged is less than one (1) ounce by weight, and can be cleaned up within fifteen (15) minutes. (ii) Reportable Unauthorized Discharge Any unauthorized discharge which is not determined to be recordable under subsection 35.060.005(a)(1)(i) above, must be reported to Enforcing Officer immediately. The reporting party shall provide information to Enforcing -19- Officer 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. Enforcing Officer may verify that the hazardous material is being contained and appropriately disposed. Enforcing Officer, at any time upon a determination that permittee is not adequately containing and disposing of such hazardous material, shall have the power(nd authority to undertake and direct an emergency response in order to protect the public health and /or safety. (L) Unconfirmed Unauthorized Dischar e. (i) Indication of Loss in Inventory Records Whenever a material balance or other inventory record, employed as a monitoring technique under the HMMP, indicates a loss of hazardous material, and no unauthorized discharge has been confirmed by other means, permittee shall have five (5) working days to determine whether or not there has been an unauthorized discharge. If before the end of such period it is determined that there has been no unauthorized discharge, an entry explaining the occurrence shall be made in permittee's monitoring records. Where permittee has not been able, within such period, to determine that there has been no unauthorized discharge, an unauthorized discharge is deemed confirmed and permittee shall proceed in accordance with subsection 35.060.005(a)(1)(ii) above. (ii) Test Results Whenever any test results suggest a possible unauthorized discharge, and no unauthorized discharge has been confirmed by othermeans, the permittee shall have five (5) working days to retest. If second test results obtained within that period establish that there has been no unauthorized discharge, the results of both tests shall be recorded in permittee's monitoring records. If it has not been established within such period that there has been no unauthorized discharge, an unauthorized discharge is deemed confirmed and permittee shall proceed in accordance with subsection 35.060.005(a)(1)(ii) above. (b) Gases at STP. Any person in charge of a storage facility or responsible for . emergency response for storage facility, who has knowledge of any unauthorized discharge of a hazardous material which is a gas at STP, must immediately report such discharge to the Enforcing Officer if such discharge presents a threat of imminent danger to public health and safety. Sec. 35.060.010 Cleanup Responsibility. Any person, firm or corporation responsible for storing the hazardous material shall institute and complete all actions necessary to remedy the effects of any unauthorized discharge, whether sudden or gradual. Enforcing IBM Officer 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 Enforcing Officer to do so. The responsible party shall be liable to reimburse Enforcing Officer for all costs incurred by Enforcing Officer 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 Section 35.060.015. Sec. 35.050.015 Indemnification The permittee shall indemnify, and defend the Enforcing Officer 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 Enforcing Officer's sole willful act or sole active negligence. Article VII. Inspections and Records Sec. 35.070.005 Inspections by City. Enforcing Officer may conduct inspections, at its discretion, for the purpose of ascertaining compliance with this Chapter and causing to be corrected any condition which would constitute any violation of this Chapter or of any other statute, code, rule or regulation affecting the storage of hazardous materials. Nermittees are not required to disclose the identity of hazardous materials protected as trade secrets pursuant to Section 35.050.020 to anyone other than the official designated for that purpose pursuant to Section 35.050.20(c) (3), except in the case of an emergency response or an unauthorized discharge related to the storage facility in which the trade secret material is contained. Therefore, permittee may put temporary coverings over the labels of trade secret materials during the course of Enforcing Officer inspections conducted .by other than the Enforcing Officer 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 reasonble 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 unoccupied, 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. -21- (b) Inspec tions by Enforcing Officer - Discretionar . All inspections specified herein shall be at the discretion of the Enforcing Officer and nothing in this Chapter shall be construed as requiring the Enforcing Officer 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 Enforcing Officer or any officer, employee or respresentative of the Enforcing Officer 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. Sec. 35.070.010 Inspections by Permittee The permittee shall conduct regular inspections of its own facilities to assure compliance with this Chapter and 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. Sec. 35.070.015 S ecial Ins ections. In addition to the inspections specified above, Enforcing Officer may require the periodic employment of special inspectors to conduct an audit or assessment of permittee's facility to make a hazardous material safety evaluation and to determine compliance with the provisions of this Chapter. (a) The special inspector shall be a qualified person or firm who shall demonstrate expertise to the satisfaction of the Enforcing Officer. (b) The special inspection report shall include an evaluation of the facilities and recommendations consistent with the provisions of this Chapter where appropriate. A copy of the report shall be filed with Enforcing Officer at the same time that it is submitted to permittee. (c) Permittee shall, within thirty (30) days of said report, file with Enforcing Officer a plan to implement all recommendations, or shall demonstrate to the satisfaction of Enforcing Officer why such recommendations shall not be implemented. Sec. 35.070.020 Substituted Inspectio An inspection by an employee of any other public agency may be deemed by the Enforcing Officer as a substitute for any requirement above. Sec. 35.070.025. 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 Enforcing Officer during normal working hours and upon reasonable notice. -22- Article VII. Application for Permit. Sec. 35.080.005 Permit. Any person, firm, or corporation which stores any hazardous material shall obtain and keep current a Hazardous Materials Storage Permit issued pursuant to this Chapter. One such permit shall be issued for a single facility. Additional approvals shall be obtained for any storage - facility thereafter connected, installed, constructed, repaired as required by Section 35.030.030, substantially modified, replaced, closed, or removed, or for any change or addition in hazardous materials stored, 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 material 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 the 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. Sec. 35.080.010 Applic ation for Permit. Application for a new, amended, or renewed permit or an additional approval shall be made to the designated officer on the form provided by Enforcing Officer. In addition to the information required by such form, applicant shall submit the Hazardous Materials Management Plan required by Section 35.040.005 and construction plans, if any, in conformity with Section 35.030.005. Applicant shall specify the permit quantity limit requested to be permitted for each storage facility. Sec. 35.080.015 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. Sec. 35.00 0.020. Approval o A permit shall not be approved until the issuing officer is satisfied that the storage approved adequately conforms to the provisions of this Chapter. Sec. 35.080.025 Provisional Permit If the officer to whom application has been made finds that the proposal does not 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 applicant must be informed in writing of the reasons why a full term permit was not issued. Sec. 35.080.030 Temporary Permit A temporary permit for storage may be issued where storage does not exceed thirty (30) days and occurs no more frequently than every six (6) months. The Containment Standards of Article III, the Hazardous Materials Management Plan of -23- Article IV and the Inspection and Records requirements of Article VII may be modified as appropriate under these circumstances for the storage of hazardous materials on a non - regular temporary basis. Sec. 35.080.035 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 permit to - the applicant. Such permit shall contain the following information: (1) The name and address of the permittee for purposes of notice and service of process; (2) The address of the facility for which the permit 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 the permit is effective; (5) The date of expiration; (6) When applicable, a designation that the permit is provisional or temporary; (7) Any special conditions of the permit. (b) Records The officer shall keep a record of all permits issued and all conditions attached thereto. Sec. 35.080.040 Additional Approvals (a) When a request for an additional approval is filed as required by Section 35.080.005, 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 amendment to the WMMP. (b) If the additional approval request is for closure of a storage facility, permittee shall apply for approval to close such storage facility not less than thirty (30) days prior to the termination of 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: (1) Minimizes the need for further maintenance; and -24- (2) 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 (3) 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 Enforcing Officer if there are special circumstances requiring such waiver. Sec. 35.080.045. 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. Sec. 35.080.050 Removal. Every application for the removal of a permit or extension of a provisional permit 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 Enforcing Officer has made its determination pursuant to Section 35.080.055 and any administrative appeal pursuant to Article IX has been exhausted. Sec. 35.080.055 Determination Enforcing Officer shall make a determination with regard to any application for a permit, an additional approval, or a renewal, within ninety (00) 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 Enforcing Officer and applicant. Sec. 35.080.060. Fees. The Town Council shall establish fees sufficient to recover its costs 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 Enforcing Officer 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 use of a facility prior to the expiration of the term or that the permit is suspended or revoked prior to the expiration of the term. -25- Sec. 35.080.065 ,ransfer 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 Enforcing Officer within thirty (30) days of transfer of ownership of the business. Such transfer shall be subject to the approval of Enforcing Officer. Sec. 35.080.070 Effective Date of Permit No permit shall become effective until the permit has been signed and accepted by the permittee. Where the permittee is a company, firm or corporation, the acceptance must be signed by a person having the legal authority to bind the permittee. Article IX . Denial. Sec. 35.090.005 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. S ec. 35.090.010 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 be subject to revocation pursuant to Article X. Sec. 35.090.015 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. Sec. 35.090.020 Lpea1 to E nforcing Officer Within thirty (30) days from the date of deposit of the decision in the mail in accordance with Section 35.110.010, the applicant may appeal, in writing, to Enforcing Officer, setting forth with particularity the ground or grounds for the appeal. Sec. 35.090.025 Hearing on Appeal The Enforcing Officer 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 Enforcing Officer. The hearing shall be conducted within thirty (30) days from the date the appeal was received by the Enforcing Officer. Sec. 35.090.030 Disposition of AEReall. After the hearing on the appeal, the Enforcing Officer may refer the matter back to the originating officer for anew investigation and decision, may affirm the decision of the originating officer, may approve a provisional permit as provided in Section 35.080.025 or may approve the application with or without conditions. The decision of the Enforcing Officer shall be subject to review -26- under the procedures set forth in Sections 7.01.065 through 7.01.069, with the Enforcing Officer substituted for the Building Official. Arti X. Remedial Action Sec. 35.100.005 Grounds for Remedial Action A permit may be subjected to remedial action for any of the following causes, arising from the acts or omissions of the permittee, either before orafter'a permit is issued: (a) Fraud, willful misrepresentation, or any willful inaccurate or false statements in applying for a new or renewed permit; (b) Fraud, willful misrepresentation, or any willful inaccurate or 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 Enforcing Officer; (e) Failure to abide by the remedial action imposed by the Enforcing Officer. Sec. 35.100.010 Notice of Noncom fiance. Unless the Enforcing Officer finds that an immediate suspension under Section 35.100.020 is necessary to protect the public health or safety from imminent danger, the officer shall issue a notice of noncompliance: (a) For failure to comply with the provisions of this Chapter, any permit conditions or any provisions of the Hazardous Materials Management Plan; or (b) Before instituting remedial action pursuant to Section 35.100.005(d). Such notice shall be sent by certified mail to permittee. If the noncompliance is not abated, corrected, or rectified within the time specified, remedial action may be taken. Sec. 35.100.015 Notice of Hearing A notice of hearing shall be given to the permittee by the Enforcing Officer, 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. Sec. 35.100.020 Suspension Prior to Hearin . Whenever the Enforcing Officer 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 Enforcing Officer may immediately suspend any -27- permit pending the hearing for remedial action. The Enforcing Officer shall immediately notify the permittee of such suspension by having a written notice of the suspension personally served on the permittee. Permittee shall have the opportunity for a preliminary hearing with regard to such prehearing suspension within three (3) working days of receiving written notice of such suspension. Sec. 35.100.025 Remedial Action If the Enforcing Officer, after remedial action, the Enforcing Officer following: (a) A warning; the hearing, finds that cause exists for shall impose one or more of the (b) An order to correct the particular noncompliance specified in the , ,.otiee , ,issued pursuant to Section 35.100.010; (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) Revocation of the permit with no reapplication permitted for a specified period not to exceed five (5) years. If the grounds for remedial action are based on Section 35.100.005(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. Sec. 35.100.030 Transmittal of Decision Within ten (10) days of the hearing, the Enforcing Officer shall render a written opinion, stating the findings upon which the decision is based and the action taken, if any. The decision of the Enforcing Officer shall be subject to review under the procedures set forth in Sections 7.01.065 through 7.01.069, with the Enforcing Officer substituted for the Building Official. Sec. 35.100.035. Authority after Sus ension, 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. Sec. 35.100.040 Return o 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. -28- Article XI. Hearin2 Procedure. Sec 35.110.OU5. Hearin Ru les. 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 against 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. Sec. 35.110.010 Hearing Notices All notices required by this article shall be sent by certified mail, postage prepaid, to the applicant or permittee at the address given for purposes of notice on the application or permit or delivered to the permittee personally. Article XII. Enforcement Sec. 35.120.005 Criminal Penalties A violation of any provision of this Chapter shall constitute an infraction as provided in Section 1 -7. Sec. 35. Civil Penal 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 35.060.005, shall not be a violation of this Chapter for purposes 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 Enforcing Officer's Attorney. In determining the penalty, the court shall consider all relevant 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 violation; (c) The length of time over which the violation occurred; (d) The frequency of past violations; (e) The permittee's record of maintenance; (f) Corrective action, if any, taken by the permittee. In any civil action brought pursuant hereto, fn which the Enforcing Officer prevails, the court shall determine and impose reasonable expenses, including attorneys' fees, incurred by the Enforcing Officer in the investigation and prosecution of the action. MAIM Sec. 35.120.015 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 of conditions of employment, or threatened with any such retaliation, because such employee has, in good faith, made any oral or written report or complaint related to the enforcement 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. The court may award punitive damages in a proper case. S ec. 35.120.020 Public Nuisance A violation of any provision of this Chapter shall constitute a public nuisance. Sec. 35.120.025 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. Article XIII. Miscellaneous Sec. 35.130.005 Disclaimer of Liabilit . (a) The degree of protection required by this Chapter is considered 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 Enforcing Officer, any officer or employee thereof for any damages that result from reliance on this Chapter or any administrative decision lawfully made thereunder. All persons handling, storing, using, processing, and disposing of hazardous materials within the Enforcing Officer's area should be and are advised to determine to their own satisfaction the level of protection in addition to that required by this Chapter necessary or desirable to ensure that there is no unauthorized discharge of hazardous materials. (b) 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 identified as carcinogens herein for public record purposes only and the identification 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 expressly specified in this Chapter, nor shall such identification create any other duty or obligation upon Enforcing Officer different from or additional to those duties or obligations applicable to the storage of other hazardous materials. Sec. 35.130.010 Guidelines. Guidelines approved by the Enforcing Officer shall be maintained in the -30- Office of the Town Clerk. Such guidelines, in the areas addressed therein, shall serve as an advisory interpretation of this Chapter. Sec. 35.130.015 Duties are Discretionary Subject to the limitations of due process, notwithstanding any other provisions of this code whenever the words "shall" or "must" are used in establishing a responsibility or duty of the Enforcing Officer, its elected or appointed officers, employees, or agents, it is the legislative intent that such words establish a discretionary responsibility or duty requiring the exercise of judgment and discretion. Sec. 35.130.020. C onflict 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 provisions of this Chapter. (b) If the storage facility is required to have a permit from the Department of Health Services under Health and Safety Code Section 25100 et se., it shall be exempted from any provision of this Chapter which is covered By - 1 - he regulations adopted under the above cited statute. (c) Whenever any provision of this Chapter conflicts with the Fire Code as adopted by Enforcing Officer, the stricter shall prevail. Sec. 35.130.025 Severabili 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 Town Council hereby declares that it would have passed this Chapter and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the Chapter would be subsequently declared invalid or unconstitutional. Article XIV. Complia S chedule . Sec. 35.140.005 Time Table for Initial Compliance (a) New Storage Facilities (1) As of the effective date of this Chapter, a Hazardous Materials Storage Hermit for a facility must 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 flan must be filed at the time of application for a Hazardous Material Storage Permit. -31- (b) Existing 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 `c_latr.e , of this Chapter, and to which no new storage facility is added, shall have one (1) year from such effective date to file a completed application for a hazardous Materials Storage Permit, including a monitoring plan in accordance with Section 35.030.015. The time limitation for determination specified in Section 35.080.055 shall not apply but the applicant shall be deemed to have a provisional permit of indefinite term, until Enforcing Officer makes such determination. (2) Notwithstanding the above, a hazardous Material Inventory Statement, if applicable, must be filed within ninety (90) days of the effective date of this Chapter." SECTION 2. This ordinance takes effect 30 days after the date it is adopted. Within 15 days after this ordinance is adopted, the Town Clerk shall cause it to be published once in a newspaper of general circulation published and circulated in the Town. This ordinance was introduced at a regular meeting of the Town Council of the Town of Los Gatos on June 20, 1983 , and adopted by the following vote as an ordinance of the Town o� Los Gatos at a regular meeting of the Town Council on July 18 1983 AYES COUNCILMEMBERS Joanne Benjamin, Terrence J. Daily, Thoma J. Ferrito and Ma or Brent N: Ventura NOES: COUNCILMEMBERS None ABSTAIN: COUNCILMEMBERS None ABSENT" COUNCILMEMBERS MarLyn J. Rasmussen SIGNED: e town of Los Gatos ATTEST: _ e o e own o Los at -32-