Ord 1891 - Urgency Ordinance Amending Chapter 13 of the Town CodeORDINANCE 1891
URGENCY ORDINANCE OF THE TOWN OF LOS GATOS AMENDING
CHAPTER 13 OF THE LOS GATOS TOWN CODE
THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES HEREBY
ORDAIN:
SECTION I
An urgent need for this ordinance exists in order to preserve the public health and
safety in that:
1. Substances hazardous to the public health and safety and to the environment
are stored prior to use or disposal in numerous underground locations in the Town.
2. Underground tanks used for the storage of hazardous substances and wastes
are potential sources of contamination of the ground and underlying aquifers, and may pose
other dangers to public health and the environment.
3. In several known cases, underground storage has resulted in undetected and
uncontrolled releases of hazardous substances into the ground. These releases have
contaminated public drinking water supplies and created a potential threat to the public
health and to the waters of the state.
4. The Town's location at the base of the foothills and the general composition
of soils in the area make soil and groundwater contamination particularly critical because
of the potential impact on the region's groundwater and water supply.
5. Currently available scientific analysis has identified significant risk resulting
from additional contaminants which must be regulated to maximize protection of public
health, safety and the environment.
6. Clarification of enforcement procedures, standards, and the consequences of
violation of these standards and requirements is necessary to minimize potential harm from
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unauthorized discharges into the environment.
7. Known unauthorized discharges on property in the Town of Los Gatos may
be more effectively and immediately addressed and the consequential impact on the
environment decreased by this enactment.
SECTION II
Section 13.20.010 is hereby amended to read as follows:
Sec. 13.20.010. Purpose.
The purpose of this article is to provide protection of public health, safety, welfare,
the environment and natural resources within the jurisdiction of the Town of Los Gatos
through the prevention and control of unauthorized discharges of hazardous material from
storage facilities.
SECTION III
Section 13.20.015 is hereby amended to read as follows:
Sec. 13.20.015. Definitions.
Unless otherwise expressly stated, whenever used in this Article, 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 article.
(b) Corrective action.
(1) With respect to an unauthorized discharge which is not solely
comprised of a hazardous substance from an underground storage tank, corrective action
means any activity necessary: to investigate and analyze the effects of an unauthorized
discharge; to develop and propose a well supported plan that adequately protects or
restores the public health, safety, welfare, environment, natural resources, and current and
potential beneficial uses of water; to protect against present or potential endangerment to
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the public health or the environment; and to implement and evaluate the effectiveness of
the activities.
(2) With respect to an unauthorized discharge which is solely comprised
of a hazardous substance from an underground storage tank, corrective action shall have
the meaning set forth in Title 23 CCR section 2720, as the same may be amended
hereafter, but without regard to the words "or removal" in subdivision (2) of that definition.
(c) Corrective action costs means all costs incurred by the Town for undertaking
corrective action and related enforcement actions with respect to the unauthorized discharge
of hazardous material from a storage facility including, but not limited to costs for all
necessary expert assistance in health, engineering and environmental science, expert witness
services and legal service (including consultation and review or enforcement of any
provision of law) incurred by the Town.
(d) Discharge means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, escaping, leaching, dumping, or disposing into the environment.
(e) Environment means any surface water, ground water, drinking water supply,
land surface or subsurface strata, or ambient air within the Town or under the jurisdiction
of the Town.
(f) Enforcing Officer means the person(s) designated by the Town Council,
including the Town Attorney and any person working under the direction of the Town
Attorney, who are by such designation, authorized to take action on behalf of the Town in
response to an unauthorized discharge of a hazardous material.
(g) Facility means (1) any building, structure, installation, equipment, pipe or
pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit,
pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock,
or aircraft, or (2) site or area where hazardous material has been deposited, stored,
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disposed of, or placed, or otherwise come to be located; but does not include any consumer
product in consumer use.
(h) Federal Act means Subchapter IX of Chapter 82 of Title 42 of the United
States Code, as added by the Hazardous and Solid Waste Amendment of 1984, as it may
subsequently be amended or supplemented.
(i) Final order means an order which has become final.
(j) Hazard class 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 A, Poisons B, Irritating
materials, Etiologic agents, Radioactive materials, Other Regulated Materials, Etiologic
agents, Radioactive materials, Other Regulated Materials (ORM) A, B, C, D and E. For
purposes of this Article, the U.S. Department of Transportation (DOT) definitions in 49
CFR Part 173 refer to transportation or hazards associated with transportation, they shall
be deemed to refer to storage or other regulated activity under this Article.
(k) Hazardous material means any material which is subject to regulation pursuant
to Division 3 of this Article. A mixture shall be deemed to be a hazardous material if it
either is a waste and contains any material regulated pursuant to Division 3 of this Article,
or is a nonwaste and contains one percent (1 %) by volume or more of any material
regulated pursuant to Division 3 of this Article.
(1) Hazardous substance shall have the same meaning set forth in Health and
Safety Code section 25281(f), as may be amended from time to time.
(m) Natural resources means land, fish, wildlife, biota, air, water, ground water,
drinking water supplies, and other such resources belonging to, managed by, held in trust
by, or otherwise controlled by the Town.
(n) Owner and Operator shall have the meanings set forth in section 9001(3) and
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(4) of the Federal Act, 42 U.S.C. § 6991 (3) and (4) and Health and Safety Code
Sections 25281 (h) and (i).
(o) Permit means any hazardous materials storage permit issued pursuant to this
Article, as well as any additional approvals thereto.
(p) Permit 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
Article.
(q) Permitted discharge(s) means a discharge of any hazardous material expressly
permitted by and in full compliance with the provisions of this Article, or authorized and
in full compliance with the release regulations of the Bay 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.
(r) Permittee means any person, firm, or corporation to whom a permit is issued
pursuant to this Article and any authorized representative, agent or designee of such person,
firm, or corporation.
(s) Person means an individual, trust, firm, joint stock company, corporation,
including a governmental corporation, partnership or association. Person also includes any
city, county, district, the state, any department or agency thereof, or the United States to
the extent authorized by law.
(t) Pipes means pipeline systems which are used in connection with the storage
of hazardous materials exclusively within the confines of a facility and which are not
intended to transport materials in interstate or intrastate commerce or to transfer hazardous
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materials in bulk to or from a marine vessel.
(u) Primary containment means the first level of contaminant, i.e., the inside
portion of that container which comes into immediate contact on its inner surface with the
hazardous material being contained.
(v) Product -tight means impervious to the hazardous material which is contained,
or its 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.
(w) Responsible party means one or more of the following:
(1) Any person who owns or operates an underground storage tank used
for the storage of any hazardous material;
(2) In the case of any underground storage tank no longer in use, any
person who owned or operated the underground storage tank immediately before the
discontinuation of its use;
(3) Any owner of property where an unauthorized discharge of a hazardous
material from an underground storage tank has occurred; and
(4) Any person who had or has control over an underground storage tank
at the time of or following an unauthorized discharge of a hazardous material.
(x) Secondary containment means the level of containment external to and
separate from the primary containment.
(y) Single- walled means construction with walls made of but one thickness of
material. Laminated, coated, or clad materials shall be considered as single- walled.
(z) Storage or store means the containment, handling or treatment of hazardous
material, either on a temporary basis or for a period of years. Storage or store does not
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mean the storage of hazardous waste in a storage facility if the person operating the facility
has been issued a hazardous waste facilities permit by the State Department of Health
Services, pursuant to Health and Safety Code Section 25200, or been granted interim status
under Health and Safety Code Section 25200.5.
(aa) - Storage facility means any one or combination of tanks, sumps, set floors;
waste - treatment facilities, pipes, vaults or other portable or fixed containers, used,
designated to be used, or, abandoned in a place containing hazardous materials after
discontinuation of use for the storage of hazardous materials at a facility.
(bb) Sump means a pit or well in which liquids collect.
(cc) Tank means a stationary device designed to contain an accumulation of
hazardous material which is constructed primarily of non - earthen materials, such as wood,
concrete, steel and plastic, which provides structural support.
(dd) Unauthorized discharge means any discharge except: 1) a permitted discharge;
or 2) a discharge into secondary containment provided that the responsible party complies
in a timely fashion with the reporting and clean -up provisions of Division 7 for such
discharge.
(ee) Underground storage tank means any one or combination of tanks (including
underground pipes connected thereto) which is used to contain an accumulation of
hazardous substance, and the volume of which (including the volume of the underground
pipes connected thereto) is 10 per centum or more beneath the surface of the ground. Such
term does not include any:
(1) farm or residential tank of 1,100 gallons or less capacity used for
storing motor fuel for noncommercial purposes,
(2) tank used for storing heating oil for consumptive use on the premises
where stored,
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(3) septic tank,
(4) pipeline facility (including gathering lines) regulated under:
(i) the Natural Gas Pipeline Safety Act of 1968 (49 U.S.C.App.
1671, et seq.),
(ii) the Hazardous Liquid Pipeline Safety Act of 1979
(49 U.S.C.App.2001, et seq.), or
(iii) which is an intrastate pipeline facility regulated under State
laws comparable to the provisions of law referred to in clause (i) or (ii) of this
subparagraph,
(5) surface impoundment, pit, pond, or lagoon,
(6) storm water or waste water collection system,
(7) flow - through process tank,
(8) liquid trap or associated gathering lines directly related to oil or gas
production and gathering operations, or
(9) Storage tank situated in an underground area (such as a basement,
cellar, mineworking, drift, shaft, or tunnel) if the storage tank is situated upon or above
the surface of the floor.
(10) any pipes connected to any tank which is described in subparagraph
(1) through (9).
(ff) Underground tank system or tank system means an underground storage tank,
connected piping, ancillary equipment, and containment system, if any.
(gg) 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 continuous basis.
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SECTION IV
Section 13.20.020 is amended to read as follows:
Sec. 13.20.020. General obligation.
(a) No person shall cause, suffer, or permit the storage of hazardous materials:
(1) In a manner which violates a provision of this Article or any other
local, Federal, or State statute, code, rule, or regulation relating to
hazardous materials, hazardous substances, or any sub - category thereof;
or
(2) In a manner which causes or threatens an unauthorized discharge of
hazardous materials or poses a .significant risk of such unauthorized
discharge.
(b) Except with regard to underground storage tanks, the Enforcing Officer shall
have the discretion to exempt an applicant from any specific requirement of this Article,
other than the requirement for secondary containment in underground storage facilities,
except as provided in section 13.20.310(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 Article for protecting public health, safety, and
welfare.
SECTION V
Section 13.20.026 is added to read:
Sec. 13.20.026 Underground storage tank obligations
In addition to any other requirement, no person shall own or operate an
underground storage tank unless a permit for its operation has been issued by the Town,
except as provided in subdivision (c) and (d) of Health & Safety Code § 25284,. All
installation, construction, repair or modification, monitoring, closure, and removal of
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underground storage tanks shall comply with the regulations set forth in Article 3, 4, 5, 6,
7 and 8 of Underground Tank Regulations, 23 CAR Chapter 16 as the same may be
amended from time to time.
SECTION VI
Section 13.20.055 is amended to read:
Sec. 13.20.055. Report to the State Water Resources Control Board
The Town will require its permit applicants and permittees to fill out, in addition
to forms required for the Town's own purposes under this Article, standardized forms
based on the application form and annual report form prepared by the State Water
Resources Control Board as specified by chapter 6.7 of the Health and Safety Code. All
such applications for underground storage tanks shall be processed and copies forwarded
as required by chapter 6.7 of Health and Safety Code and regulations issued pursuant
thereto.
SECTION VII
Section 13.20.126 is added to read:
Sec. 13.20.126. Trade secrets.
(a) Trade secrets, as used in this Article, include, but are not limited to, any
formula, plan, pattern, process, tool, mechanism, compound,procedure, production data,
or compilation of information which is not patented, which is known only to certain
individuals within a commercial concern who are using it to fabricate, produce, or
compound an article of trade or a service having commercial value, and which gives its
user an opportunity to obtain a business advantage over competitors who do not know or
use it.
(b) The Town may disclose trade secrets only as authorized by Health and Safety
Code section 25290.
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(c) Any record, report, document or information designated confidential shall be
treated as such by the Town, and shall be used only for the purpose of this Article and
shall not be disseminated to the public unless the Enforcing Officer determines that
insufficient information has been submitted to support the designation as confidential.
(d) Any information not treated as a trade secret shall be available to the public
unless nondisclosure is required by any other provision of law.
(e) The Town Council may disclose trade secrets received by the Enforcing
Officer to authorized agents of the Town Council or other governmental agencies only in
connection with the Town Council's responsibilities pursuant to this Article. The Town
Council shall establish procedures to ensure that these trade secrets are utilized only in
connection with these responsibilities and are not otherwise disseminated without the
consent of the person who provided the information to the Enforcing Officer.
SECTION VIII
Section 13.20.130 is amended to read:
Sec. 13.20.130. Inspections by Town.
(a) The Enforcing Officer may conduct inspections, at its discretion, for the
purpose of ascertaining compliance with this Article and causing to be corrected any
condition which would constitute any violation of this Article. In addition to any other
authority provided by law, the Enforcing Officer in order to develop or assist in the
development of any regulation, to conduct any study, to take any corrective action, to assess
compliance with, or to enforce the provisions of this Article, shall have access to and may
inspect at all reasonable times all documents relating to a storage facility, its associated
equipment and contents, and may conduct monitoring or testing. In addition to any other
activities authorized by law, the Enforcing Officer may exercise any of the following:
(1) Right of entry. Whenever necessary for the purpose of investigating or
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enforcing the provisions of this Article, or whenever any Enforcing Officer
has reasonable cause to believe that there exists in any structure or upon any
premises, any condition which constitutes a violation of this Article, such
officers may enter such structure or premises at all reasonable times to inspect
the same, or to perform any duty imposed upon any of the 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 be occupied, 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.
(2) Inspections by Enforcing Officer. All inspections specified herein shall be at
the discretion of the Enforcing Officer and nothing in this Article 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 the Article shall be construed to hold
the Enforcing Officer or any officer, employee or representative 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.
(3) Obtaining information. Upon request by the Enforcing Officer, a responsible
party shall furnish information relating to its tanks, associated equipment,and
contents; shall conduct monitoring or testing; and shall provide access to and
allow copying of all records relating to such tanks and permits at reasonable
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times.
SECTION IX
Section 13.20.155 is amended to read:
See. 13.20.155. Penalties.
(a) Civil penalty.
(1) Any person who violates any requirement of this Article or any final
order (including any order issued under Sec. 13.20.560 which has not been stayed), or
permit, issued pursuant to, this Article is liable for a civil penalty of not more than Ten
Thousand Dollars ($10,000) for each storage facility for each day of violation.
(2) The Town Attorney may bring an action in the name of the people in
Superior Court to impose such civil penalty. Any such action may be joined with an action
for any other available remedy under this code including injunctive relief.
(3) In determining the amount of any civil penalty under this Section:
(a) The court shall, at a minimum, impose a penalty amount which
eliminates all economic benefit accruing to the violator by reason of noncompliance and
which compensates the public for the harm and damage done to the environment as a
result of the violator's noncompliance. Impossibility of substantial compliance, or the
impossibility of quantifying the harm to the environment, does not bar the assessment of
such a penalty. The court shall enhance this base line amount to maximize the prophylactic
effect on both the violator and the regulated community as a whole. In addition, in
determining the penalty, the court shall consider the violator's degree of recalcitrance, or
absence of good faith cooperation with the Town and any other appropriate governmental
entities, the violator's defiance or indifference to requirements of the law, and any unusual
or extraordinary burdens imposed on the public welfare or the public fisc as a result of the
violation.
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(b) The court may mitigate the total amount calculated under
subsection (1) to reflect any part of the noncompliance caused by the existence of
extenuating circumstances that were wholly and entirely beyond the violator's control.
(b) Criminal penalty.
Violation of any provision of this Article or any final order or permit issued
pursuant to this Article, may be a misdemeanor punishable by a fine of not more than One
Thousand Dollars ($1,000), or imprisonment for not more than six (6) months, or both for
each violation. Each calendar day during which a violation occurs or continues shall
constitute a separate violation.
(c) Maximum penalty.
If the maximum amount of any civil or criminal penalty imposed by this
Article is determined to be in excess of the maximum amount authorized by law, the
amount shall be reduced to the maximum amount permitted by law.
SECTION X
Section 13.20.160 is amended to read as follows:
Sec. 13.20.160 Indemnification and contribution.
(a) A responsible party may have a right to indemnification by or contribution
from another responsible party only upon proof by a preponderance of the evidence that
either:
(1) Such responsible party notified the Town or other appropriate
governmental agency of the existence and location of the underground storage tank on or
before the discontinuance of its use; or
(2) The responsible party against whom indemnification and contribution is
asserted knew of the existence and the location of the underground storage tank and of
the unauthorized discharge therefrom, and failed to either (i) remove the underground
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storage tank and notify the Town or other appropriate governmental agency, or (ii)
commence corrective actions.
(b) Nothing in this section in any way limits condition or affects the liability of any
responsible party to the Town for correction action costs or for any other legal or equitable
remedy.
SECTION XI
Section 13.20.170 is amended to read:
Sec. 13.20.170. Public nuisance.
(a) A violation of any provision of this Article shall constitute a public nuisance.
(b) Any contaminated public property is hereby declared to be a public nuisance.
Property is contaminated for purposes of this ordinance if any of the following are present
and may endanger the public health, safety, welfare, natural resources within the town, or
the environment:
(1) hazardous material; or
(2) solid or hazardous waste as defined by the Federal Act; or
(3) hazardous waste, carcinogen, chemical known to cause reproductive
toxicity, hazardous material, toxic substance or designated material as defined by California
statute or regulation adopted pursuant thereto.
SECTION XII
Section 13.20.171 is added to read as follows:
Sec. 13.20.171. Injunctions.
(a) Any existing or threatened violation of this article or any permit requirement
or any final order (including any order under Sec. 13.20.560 which has not been stayed)
may be enjoined and compliance may be directed by a temporary restraining order,
preliminary or permanent injunction, or other order of the court in an action brought by
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the Town Attorney.
(b) In any civil action brought pursuant to this Article in which a temporary
restraining order, preliminary injunction, or permanent injunction is sought, the Town shall
be entitled to injunctive relief without allegation or proof that irreparable damage will
occur if the injunctive relief is not ordered or that the remedy at law is inadequate.
SECTION XIII
Section 13.20.175 is amended to read as follows:
Sec. 13.20.175. Remedies not exclusive.
Remedies under this Article are in addition to and do not supersede or limit any and
all other remedies, civil, criminal or administrative. Nothing in this Article shall affect or
modify in any way the obligations or liabilities of any person under any other provision of
State, Federal or local law, including common law, for damages, injury, loss, or for liability
for nuisance abatement and nuisance abatement costs incurred by the Town which results
from an unauthorized discharge of hazardous material into the environment.
SECTION XIV
Section 13.20.230 is amended to read as follows:
Sec. 13.20.230. Materials regulated.
The materials regulated by this Article shall consist of the following:
(a) Any material listed or identified as a hazardous waste in Chapter 11 of Title
22 of the California Code of Regulations, as the same may be amended from time to time;
or
(b) Any material which is a "Regulated Substance" as that term is defined in
Section 9001(2) of the Federal Act, as the same may be amended from time to time, 42
U.S.C. § 6991(2); or
(c) Any material which is listed on the list of Environmental Protection Agency
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(EPA) pollutants, 40 Code of Federal Regulations, Section 401.15, as the same may be
amended from time to time; or
(d) 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
(e) Any material which is listed by the Director of the Department of Industrial
Regulations in Title 8, California Code of Regulations 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 any
other subsection of this Section. These exclusions shall be as follows:
(1) Materials recognized in the official United States Pharmacopoeia, official
Homeopathic 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, treatment, or prevention of disease in man or other animals; hormones;
enzymes; and aflatoxins.
(2) Aluminum salts; Asphalt fumes; Atrazine; Benomyl; Bis
(dimethylthiocarbamoyl) disulfide; Boron oxide; 4- tert - Butyl -2- chlorophenyl- methyl
methylphosphoramidate; Camphor; Carbon black; 2- Chloro -6 (trichloromethyl) pyridine;
Clopidol; Cotton dust; Dibenzoyl peroxide (Benzoyl 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; Rotenone, commercial; Silica, Soapstone, Talc; Tantalum
oxide; Terphenylis; and 4,4 - Thiobis (6 -tert- butyl -m- cresol).
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(f) Any material which has been determined to be hazardous based upon any
appraisal or assessment by or on behalf of the party storing this material in compliance with
the requirements of the EPA or the California Department of Health Services, or which
should have been, but was not, determined to be hazardous due to the deliberate failure
of the party storing the material to comply with the requirements of the EPA and /or the
Department of Health Services; or
(g) 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 Article.
SECTION XV
Section 13.20.305 is amended to read as follows:
Sec. 13.20.305. Containment of hazardous materials.
(a) No person shall store any hazardous materials regulated by this Article until
a permit or approval has been issued pursuant to this Article and then only in full
W
compliance with each term and condition of any such permit. No permit or approval shall
be granted pursuant to this Article unless permit applicant demonstrates to the satisfaction
of the 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.
(b) All installation,. construction, repair or modification, closure, and removal shall
be to the satisfaction of the Enforcing Officer. The Enforcing Officer shall have the
discretion to exempt an applicant from any specific requirement, except that the discretion
with regard to underground storage facilities shall be exercised in accordance with section
13.20.310(c)(4), or to impose reasonable additional or different requirements in order to
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better secure the purpose and general obligation of this Article for protection of public
health, safety, and welfare. The guidelines approved pursuant to section 13.20.040 shall
serve as an interpretation of the provisions of this division addressed in such guidelines.
SECTION XVI
Section 13.20.310 is amended to read as follows:
Sec. 13.20.310. Storage facilities.
(a) Permit required. No person shall construct or install any new storage facility
until a permit or approval has been issued pursuant to this Article or other than in full
compliance with any term or condition of any such permit.
(b) Monitoring capability. All storage facilities intended for the storage of
hazardous materials which are liquids or solids at standards 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 the Enforcing Officer. Where
secondary containment may be subject to the intrusion of water, a means of monitoring for
such water shall be provided and a means for safely removing the water shall also 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 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 the Enforcing Officer.
(1) All primary containment shall be product- tight.
(2) Secondary containment:
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(a) 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
hazardous materials and so as to be capable of containing
hazardous materials discharged from a primary container for
a period of time equal to or longer than the maximum
anticipated time sufficient to allow recovery of the discharged
hazardous material.
(b) In the case of an installation with one (1) primary container, the
secondary containment shall be large enough to contain at least
one hundred ten (110) percent of the volume of the primary
container.
(c) In the case of a storage facility with multiple primary containers,
the secondary container shall be large enough to contain one
hundred fifty (150) percent of the volume of the largest primary
container placed in it, or ten (10) percent of the aggregate
internal volume of all primary containers in the storage facility,
whichever is greater.
(d) If the storage facility is open to rainfall, then the secondary
containment shall be able to additionally accommodate the
volume of a twenty- four -hour rainfall as determined by a one -
hundred -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.
ATTNY:A: \CNCLRPTS \CHPT13- 1.0ItD 20
(d) Overfill 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 potential intermixing.
(f) Drainage system. Drainage of water entering by precipitation or infiltration
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. The facility shall contain a means of removing the
water by the owner or operator. This removal system shall also prevent uncontrolled
removal of this water. This removal system shall also provide for a means of analyzing the
removed water for hazardous substance contamination and a means of disposing of the
water, if so contaminated, at an authorized disposal facility.
(g) Storage tank testing for underground storage tanks.
(1) Before an underground storage tank is covered, enclosed, or placed in
use, the standard installation testing for requirements for underground storage systems
specified in section 2 -7 of the Flammable and Combustible Liquids Code, adopted by the
National Fire Protection Association (NFPA 30) as amended and published in the
respective edition of the Uniform Fire Code, shall be followed.
(2) Before the underground storage tank is placed in service, the
underground storage systems shall be tested in operating condition using a precision test
as defined in National Fire Protection Association Pamphlet 329, "Recommended Practice
ATTNY:A: \CNCLRPTS \CHPT13 -1.0RD 21
of Handling Underground Leakage of Flammable and Combustible Liquids," as amended,
for proving the integrity of an underground storage tank.
(h) Underground storage facilities.
(1) In lieu of the requirements set forth in this section, underground
storage facilities installed after January 1, 1984, shall comply with the requirements of
Health and Safety Code Section 25291, as amended from time to time, except where the
provisions of this section supplement and are not inconsistent with said section.
(2) In lieu of the requirements set forth in this section, all underground
storage facilities installed on or before January 1, 1984, shall comply with the requirements
of Health and Safety Code Section 25292, as amended from time to time, except where the
provisions of this section supplement and are not inconsistent with said section.
SECTION XVII
Section 13.20.315 is amended to read as follows:
Sec. 13.20.315. Existing storage facilities.
Any storage facility which was in existence as of the effective date of this article, or
any storage facility for which a building permit was issued prior to the effective date of this
article, which does not meet the standards of section 13.20.310, may be permitted pursuant
to this article as long as it is providing suitable storage for hazardous materials; except that
all underground storage tanks shall comply with California Health and Safety Code Section
25291 or 25292. The owner shall outfit the facility with a monitoring system capable of
detecting unauthorized releases of any hazardous substances stored in the facility, and
thereafter the operator shall monitor each facility based on the materials stored and the
type of monitoring installed. 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 the Enforcing Officer as set forth herein.
A'I rNY:A: \CNCLRPTS \CI-IPT13- 1.OIZD 22
(1) A monitoring plan for each such storage facility containing hazardous
materials which are liquids or solids at STP shall be submitted to the Enforcing Officer as
part of the hazardous materials management plan.
(2) 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 monthly or more frequent basis
may be approved by the Enforcing Officer.
(3) Alternative methods of monitoring may include but are not limited to:
pressure testing, vacuum testing or hydrostatic testing of the piping systems or underground
storage tanks; groundwater monitoring wells which are downgradient and adjacent to the
storage facility; vapor analysis within the wells where appropriate; and analysis of the soil
borings at the time of initial installation of the wells. The number of wells, depth of wells,
location of wells, and sampling frequency shall be approved by the Enforcing Officer.
(4) Such monitoring devices and methods, as approved by the Enforcing Officer,
shall be installed and operating within six (6) months of the issuance of a provisional permit
in accordance with section 13.20.680. The 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. No
monitoring systems required by this section shall be installed later than January 1, 1985, or
the date specified in Health and Safety Code section 25284.1, whichever date is later.
(5) The continued use of, and permit approval for, existing storage facilities is
subject to review and modification or termination by the Enforcing Officer whenever there
has been an 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 the Enforcing Officer shall consider the age of the storage facility, the
ATTNY:A: \CNCLRPTS \CHPT13 -1.0RD 23
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 article.
(6) Existing storage facilities which are not approved in accordance with this
section must be upgraded to comply with this article or be closed in accordance with section
13.20.320 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 the Enforcing Officer.
SECTION XVIII
Section 13.20.326 is added to read as follows:
Sec. 13.20.326. Tank integrity tests.
(a) All tank integrity tests required by this Article for storage facilities, or by
Articles 6.7 of the Health and Safety Code and the regulations enacted pursuant thereto
shall be performed only by, or under the direct and personal supervision of, a tank tester
with a currently valid tank testing license issued pursuant to Health and Safety Code
Section 25284.4.
SECTION XVIV
Section 13.20.560 is amended to read as follows:
Sec. 13.20.560. Cleanup responsibility.
(a) Not withstanding any other provision of this code, the Enforcing Officer may
either request that the Town Attorney immediately seek all available remedies and /or may
order any person, including any past or present generator, past or present transporter, past
or present owner or operator of a storage facility, or other responsible party who has
contributed or who is contributing to the past or present handling, storage, treatment,
ATTNY:A: \CNCLRPTS \CHPT13- 1.011 -D 24
transportation or disposal of any hazardous material which may present an imminent and
substantial endangerment to the public health, welfare, environment or natural resources
within the jurisdiction of the Town of Los Gatos, to take corrective action to fully and
permanently abate any such endangerment and to remedy all present and foreseeable
adverse effects arising out of such endangerment or any public nuisance. Upon issuance
and service on the person(s) named, such orders shall be final and binding, unless stayed.
(b) Any such order issued by the Enforcing Officer pursuant to this section shall
include a statement of the grounds upon which the order is issued and may include a time
schedule for completion of specific actions.
(c) Any person named in such an order may, at any time after service of the
order and after giving written notice to the Enforcing Officer and Town Attorney, request
that the Hearing Officer appointed pursuant to section 13.20.890(b) stay the order. If the
Hearing Officer determines that delay in corrective action until the next regularly
scheduled meeting of the Town Council might pose an endangerment to the public health,
welfare, environment or natural resources within the jurisdiction of the Town the stay shall
be denied. The Enforcing Officer or any person named in such an order may request
review of the Hearing Officer's granting or denial of stay at the next regularly scheduled
meeting of the Town Council or at a meeting specially scheduled for this purpose. The
burden shall be on the party requesting the stay to demonstrate to the Town Council that
no imminent and substantial endangerment to the public health, welfare, environment or
natural resources within the jurisdiction of the Town of Los Gatos will be presented or
continued during the requested stay.
(d) Each owner, operator, or other responsible party shall take corrective action
in response to an unauthorized discharge in compliance with this Article and /or the orders
of the Enforcing Officer. With respect to any unauthorized discharge from an underground
ATrNY:A: \CNCLRPTS \CHPT13 -1.ORD 25
storage tank such corrective action shall be in compliance with Health & Safety Code
Section 25299.37 and the regulations adopted pursuant to Health & Safety Code § 25299.77
except to the extent that the requirements of this Article are more stringent.
(e) Without in any way conditioning or limiting the obligations imposed in
subsection (a), the Enforcing Officer is authorized to:
(1) Issue orders to require the owner, operator or the responsible party
respecting a storage facility to undertake corrective action with respect to any unauthorized
discharge of hazardous materials if, in the judgment of the Enforcing Officer such corrective
action is necessary to protect public health, safety, welfare or the environment. The owner,
operator or other responsible party shall conduct any corrective action with respect to any
final order issued pursuant to this section.
(2) Undertake corrective action with respect to any unauthorized discharge
of hazardous materials into the environment from a storage facility if such action is
necessary, in the judgment of the Enforcing Officer, to protect health, safety, welfare or the
environment within the Town of Los Gatos.
(f) All corrective actions shall be consistent with any applicable waste discharge
requirements or other order issued pursuant to Division 7 (commencing with
Section 13000) of the Water Code, all applicable state policies for water quality control
adopted pursuant to Article 3 (commencing with Section 13140) of Chapter 3 of Division 7
of the Water Code, and all applicable water quality control plans adopted pursuant to
Section 13170 of the Water Code and Article 3 (commencing with Section 13240) of
Chapter 4 of Division 7 of the Water code except as provided in subsection (d) and except
to the extent that the Town has authority pursuant to law to impose additional or more
stringent requirements than those imposed.
(g) Notwithstanding subsection (f), the Enforcing Officer may order additional
ATTNY:A: \CNCLRPTS \CHPT13 -1.ORD 26
or more stringent requirements for corrective action if:
(1) The Enforcing Officer determines that such requirements are appropriate
to provide protection against or abatement of any present or future endangerment to the
public health, safety, welfare, environment, natural resources or approved land uses within
the town of Los Gatos; and
(2) The Town has legal authority to impose additional or more stringent
provisions.
(h) Any order issued pursuant to this section shall become final and binding on
any named person 10 days after service unless the person files a written request for review
of the order which succinctly states the provisions of the order objected to and the basis
for each such objection.
(i) All responsible parties shall be jointly and severally liable to reimburse the
Town for all costs incurred in remedying the effects of public nuisances or unauthorized
discharges, including enforcement costs, and the costs of fighting fires to the extent allowed
by law. This responsibility is not conditioned upon willfulness or negligence of the
responsible party in causing or allowing such public nuisance or unauthorized discharge.
Any responsible party who undertakes action to remedy the effects of public nuisance or
unauthorized discharge(s) shall not be barred by this Article from seeking to recover costs
and expenditures from other responsible parties except as provided by Section 13.20.565.
SECTION XX
Section 13.20.561 is added to read as follows:
Sec. 13.20.561. Recovery of costs.
(a) Civil action. At any time after corrective action costs have been incurred by
the Town, the Town Attorney may commence a civil action in the name of the people to
recover all such costs. Such an action may be joined with an action for any other relief
ATTNY :A: \CNCLRPTS \CI- II -LORD 27
or damages to which the Town, acting on its own behalf or as parens patriae may be
entitled. In any civil action brought to recover such costs, civil penalties or injunctive relief
for violation of any provision of this Article in which the Town prevails, the Town shall
recover reasonable expenses, including attorney's fees, incurred by the Town in the
investigation and prosecution of the action.
(b) Declaratory judgment. In a civil action to recover corrective action costs, the
court shall enter a declaratory judgment determining liability. This declaratory judgment
will be binding on any subsequent action or actions to recover further corrective action
costs. The Court shall retain jurisdiction over such matter until six months after corrective
action is complete. Upon motion by the Town, any corrective action costs incurred by the
Town, shall be adjudged against the liable parties in a lump sum judgment .
(c) Standard of liability. The standard of liability in this section is strict liability.
(d) Limitation of action. An action authorized by subdivision (b) of this section
must be brought no later than three (3) years after completion of all corrective actions.
(e) Applicability. Corrective action costs recoverable by the Town, shall include
all costs, regardless of when incurred, so long as the corrective action to the release or
threatened release of hazardous material from the facility, with respect to which those
corrective action costs have been incurred, has not been wholly completed on or before
the effective date of this chapter.
(f) Exclusion. Costs recoverable under this section with respect to an unauthorized
discharge of a hazardous substance from an underground storage tank shall not include
(i) oversight costs incurred by the Town other than or in excess of those allowable pursuant
to Health & Safety Code Section 25297.1(1)(3).
SECTION XXI
Section 13.20.890 is amended to read as follows:
ATTNY:A: \CNCLRPTS \CHPT13 -1.0RD 28
See. 13.20.890. Review of orders.
(a) Review. Any responsible party aggrieved by any order issued under this Article,
specifically including any order issued pursuant to Section 13.20.560(a), may request a
hearing before the Town Council to review such order. A written request for review must
be filed with the Town Clerk within 10 days from the date of personal service of the order.
The request shall include the responsible party's address to which all notices shall be sent.
If a request for review is not received within 10 days from the date of service, the order,
including any order issued under Section 13.20.560(a) which has been stayed, shall become
final and binding.
(b) Hearing Officer. The Town Council shall appoint a Hearing Officer who will
hear all objections to orders and make a report to the Town Council of proposed findings
of facts, conclusions of law and recommendations with regard to the order.
(c) Notice of hearing. The Hearing Officer shall send notice of the time and place
of hearing to the Enforcing Officer and all parties who request review at least twenty -one
(21) days prior to the hearing. The notice shall be substantially in the following form but
may include other including a schedule for submission of briefs and evidence:
You are hereby notified that the requested hearing will be held before
the Hearing Officer [here insert place of hearing] on the day of
19 , at the hour of , on the order of the
Enforcement Officer dated and which was served on you on
. A statement of the grounds upon which the order was
issued is enclosed herewith. You may be present at the hearing. You have
the right to be represented by an attorney at your own expense. You are not
entitled to the appointment of an attorney to represent you at public expense.
You are entitled to represent yourself without legal counsel. You may
ATTNY:A: \CNCLRPTS \CHPT13 -1.0RD 29
present any relevant evidence, and will be given full opportunity to cross -
examine all witnesses testifying against you. You may apply to the Hearing
Officer for the issuance of subpoenas to compel the attendance of witnesses
and the production of books, documents or other things.
(d) Issuance of subpoena. The Hearing Officer upon application by the Enforcing
Officer or any responsible parties named in the order may issue subpoenas in the name
of the Town Council to compel attendance of persons or production of documents which
the Hearing Officer determines to be reasonably related to a party's ability to adduce
relevant admissible evidence on material issues in the hearing.
(e) Statement of issues and positions. Not later than fifteen (15) days prior to the
hearing date, the party who requested the hearing shall submit to the Town Clerk and
serve upon the Enforcing Officer a brief written statement identifying: (1) the requested
modification(s) of the order; and (2) a summary of the issues, facts, and legal authorities
to be raised at the hearing. Not less than seven (7) days prior to the hearing, the Enforcing
Officer may submit a brief written statement in response to the Town Clerk and serve it
upon the party requesting review.
(f) Conduct of hearing.
(1) Oral evidence shall be taken only on oath or affirmation.
(2) Each party may call and examine witnesses, introduce exhibits, cross-
examine opposing witnesses on any matter relevant to the issues even though that matter
was not covered in the direct examination, impeach any witness regardless of which party
first called him to testify, and rebut adverse evidence..
(3) The hearing need not be conducted according to technical rules
relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort
of evidence on which responsible persons are accustomed to rely in the conduct of serious
ATTNY:A: \CNCLRPTS \CHPT13 -1.ORD 30
i I
affairs, regardless of the existence of any common law or statutory rule which might make
improper the admission of such evidence over objection in civil judicial actions. Hearsay
evidence may be used for the purpose of supplementing or explaining other evidence but
shall not be sufficient in itself to support a necessary finding unless it would be admissible
over objection in civil judicial actions. The rules of privilege shall be effective to the extent
that they are otherwise required by statute to be recognized at the hearing, and irrelevant
and unduly repetitious evidence shall be excluded.
(4) Review of the order by the Hearing Officer shall be De Novo. The
Enforcing Officer shall have the initial burden of producing prima facie evidence of the
facts supporting the findings set forth in the order. Upon such a showing, the responsible
party has the burden of proving that the Enforcing Officer committed a prejudicial abuse
of discretion in issuing the order. An abuse of discretion is shown only where the
Enforcement Officer failed to proceed in the manner required by law or where the issuance
of the order was arbitrary, capricious or without any reasonable basis.
(5) The Hearing Officer shall have authority to control the course of
proceeding, the conduct of argument and rule on admission of evidence. Any contempt of
the Hearing Officer shall be punished as contempt of the Town Council as may be
authorized by law.
(g) Decision. Within 30 days after the hearing is concluded, the Hearing Officer
shall prepare a written decision which shall contain findings of fact, a determination of the
issues presented and the disposition of the order on review. Copies of the decision shall
be delivered in the manner set forth in Section 13.20.885. The decision shall become final
and binding on the tenth calendar day following service of the report, unless the Enforcing
Officer or any party timely files with the Town Clerk a request for hearing before the Town
Council.
ATTNY:A: \CNCLRPTS \CHn13 -1.0 RD 31
(h) Objections to Hearing Officer's report. The Enforcing Officer or any party
aggrieved by the decision of the Hearing Officer may, within 10 days from the date of
service of such decision, request review by the Town Council. Any request for a hearing
shall be filed in writing with the Town Clerk and shall include the address of the person
making the request to which all notices shall be sent. The objection shall specifically state
whether the party requests an opportunity to present oral argument to the Town Council
and an estimate of the time necessary to do so.
(i) Determination on objections. If any party has requested oral argument, the
Town Council shall set the time and place of hearing and notify all parties at least twenty -
one (21) days prior to the hearing unless all objecting parties agree to a shorter time.
The notice to the responsible party shall be substantially in the following form but may
include other information:
You are hereby notified that the requested hearing on the record
before the Hearing Officer will be held before the Town Council at [here
insert place of hearing] on the day of , 19_, at
the hour of , on the report of the Hearing Officer dated
and which was served on you on . You have the right to be
represented by an attorney at your own expense. You are not entitled to the
appointment of an attorney to represent you at public expense. You are
entitled to represent yourself without legal counsel.
0) Statement of issues and positions. Not later than fifteen (15) days prior to the
hearing date, the party who requested the hearing shall submit to the Town Clerk and
serve upon the Enforcing Officer a brief written statement identifying: (1) the requested
modification(s) of the order and the hearing officer's decision; and (2) a summary of the
issues, facts, and legal authorities to be raised at the hearing. Not less than seven (7) days
ATTNY:A: \CNCLRP'rS \CHPT13 -1.ORD 32
i Y
prior to the hearing, the Enforcing Officer may submit a brief written statement in response
to the Town Clerk and serve it upon the party requesting review.
(k) Conduct on review of decision. The hearing before the Town Council shall be
upon the record of proceedings and evidence presented to the Hearing Officer. No new
evidence may be introduced except upon written notice filed 3 days before the hearing
demonstrating that the new evidence was (i) not reasonably available or known of at the
time of hearing before the Hearing Officer, or (ii) substantial justice or fundamental
fairness requires consideration of such evidence and good cause is shown why such evidence
was not introduced at the hearing before the Hearing Officer.
(1) Decision. Within 30 days or after the hearing is concluded, the Town Council
shall prepare a written decision which shall contain rulings on the objections to the order
and hearing officer's decision. Copies of the Town Council decision shall be delivered as
required by Section 13.20.885.
ATTNY :A: \CNCLRPTS \CI- IPTi3- 1.01tD 33
SECTION XXII
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 March 2, 1992, and adopted by the following vote as an ordinance
of the Town of Los Gatos at a meeting of the Town Council of the Town of Los Gatos on
March 2, 1992.
COUNCIL MEMBERS:
AYES: Randy Attaway, Joanne Benjamin, Steven Blanton,
Brent N. Ventura, Mayor Eric D. Carlson
NAYS: None
ABSENT: None
ABSTAIN
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
AT
G�
CLERK OF THE TOWN OF GATOS
LOS GATOS, CALIFORNIA
ATTNY:A: \CNCLRPTS \CI II'T13 -1.ORD 34